Two Similar But Different Views Of The Constitution.

The US Supreme Court ruled in 2003, 6–3, to strike down the state of Texas' 1973 statute against homosexual acts in private. In Justice Clarence Thomas' dissent he wrote that although the thought the law was "uncommonly silly" (a phrase drawn from Justice Stewart's original dissent in Griswold v. Connecticut), he saw nothing in the Constitution to forbid it.

This seems very different, and nicer, than what Chief Warren Burger said in Bowers v. Hardwick (1986). That the Georgia statute that the Court at the time upheld was all right. Because homosexual acts were a "crime against nature", worse than rape. But actually it was not better or even nicer.

Actually Warren Burger agreed, or allowed, that there was a general right to privacy in the US Constitution. He just didn't think it extended to homosexual relations. This allowed in the future for Lawrence, by letting homosexuals be added as a new protected class. By saying there was no general right to privacy in the Constitution, Justice Thomas was saying much more. That means there is no right to an unrestricted abortion, even in the first trimester of pregnancy. And this applies to other rights too. Like those concerning family planning, marriage, child rearing, education...

Thoughts?

 

More recently pertinent is Thomas' concurring opinion in Dobbs v. Jackson Women's Health Organization, the recent case on abortion striking down Roe, where he says: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell." Griswold v. Conn. was the case that upheld the right of a married couple to use contraceptives. Lawrence v. Texas, which you mentioned, is that case upholding the right to engage private homosexual sex. And Obergrfell v. Hodges is the case allowing gay marriage. All of these are based on the right of privacy which Thomas thinks isn't clearly stated in the Constitution, and is an example of "substantive" (as opposed to procedural) due process and therefore a departure from conservative "textualism" and "originalism" in interpreting the Constitution. Since lots of gays have married since Obergefell, one wonders what will happen if Thomas gets his way? Will all those marriages be annulled. Will the couples have to take up celibacy? I say, bring it on, cuz (especially re contaceptives), American culture has moved way beyond "originalism". Trying to put the genie back in the bottle is likely to encounter a degree of resistance the corrupt Thomas and his Retrumplican wife haven't dreamed of.

 

On substantive v. procedural due process. I am reminded of a CC political science class I took in 1997. And it covered this topic. The teacher was a raving liberal and one of his students was this man who was studying to be a Detroit police officer. He was a nice guy, the student. But I could tell he was at odds politically with the teacher. But I bring that up, the difference between the two, because substantive due process is things like abortion, contraception, not having your kid forced to take gay ed. in public school, etc. And procedural is search and seizure, the right to a lawyer, double jeopardy. First Amendment is substantive too (look it up). The original intent judges might make an exception just for that one (why just that one?). But last I checked, the Republicans and conservatives are more affected by the first list. They would be the first to say, by contrast, the criminals are the ones with too many damn rights (search, lawyer, etc.).

 

Actually, the U.S. Supreme Court was pretty good about keeping religion out of the Constitution for over half a century, until the Roberts Court came along: no prayer in schools, abortion okay until fetal viability, consensual sex and gay marriage protected by the right of privacy. The Roberts Court, of course, says abortion is a state matter, and seems to be re-thinking the other issues, as well. Whether or not religious bias is involved is debatable. Six of the justices are Republican and six (including the Chief Justice) are Catholic. They aren't exactly the same six, but close (Justice Sotomayor is a Catholic liberal Democrat and Justice Gorsuch was Catholic-raised but presently Episcopalian. The prominence of Catholics on the Court is quite extraordinary in U.S. history. Six are also judicial conservatives, relying on "textualism (meaning of the words) and originalism (intent of the framers) to figure out what the Constitution means. Both are problematic, since words like "establlshment of religion", "life", "liberty", and "due process" are far from clear. In that case, they tend to favor a "leave it to the states" approach--which means the that rights vary from state to state. In my state of Oklahoma, "Buckle of the Bible Belt", this tends to mean conservative Christian values when it comes to homosexuality, abortion, family planning, trans rights, etc. While it's hard to determine whether the Justices are influenced by their religious bias, their Republican affiliations, their conservative judicial philosophies, all of the above, or some of the above is hard to determine, but each would push them in the same direction. All of the Republicans were appointed by the Bush's and Trump.