Justice Clarence Thomas' America: Straight, Color-Blind, Religious, and Heavily Armed

 By Eric Segall

Justice Clarence Thomas has been on the Supreme Court fourteen years longer than any other current Justice. If Thomas serves six more years, which is highly likely, he will be the longest serving Justice in American history. His law clerks have become judges and elected officials all over the United States. Let's take a look at his constitutional vision for the United States of  America.

One caveat. The other conservatives on the Court agree with much of what I discuss below. But none of them (at least so far) agrees with all the cases and legal rules that make up Justice Thomas' jurisprudence and none of them agrees (at least openly) with his radical views on precedent, which I leave for another day.

1) LGBTQ Rights

In Lawrence v. Texas, the Court struck down a Texas law that made it a crime for gays and lesbians to have consensual sex in the privacy of their homes, overturning Bowers v. Hardwick, which had upheld a similar law. Thomas dissented saying that, although he would not vote for such a law if he were a legislator, there was nothing in the Constitution preventing the State of Texas from putting adults in jail for engaging in private, consensual sexual relationships. In other words, Justice Thomas would allow states to punish gays and lesbians just for having sex in their own homes. He also expressly joined Justice Scalia's dissenting opinion analogizing homosexual conduct to bigamy, incest, and prostitution.

In both United States v. Windsor and Obergefell v. Hodges, Justice Thomas made it clear that he would allow states to prohibit same-sex marriages. In Obergefell, Thomas said that in "the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement." Seeing marriage as a state-created "entitlement," not a right, Thomas claimed states had no obligation to extend that "entitlement" to same-sex couples. We will return to this conception of liberty when we discuss Thomas' religion jurisprudence.

In his Obergefell dissent, Thomas also said the following: 

As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. What matters is that the process established by those who created the society has been honored.

Please remember this ode to representative government when we discuss the free exercise clause and the Second Amendment.

The bottom line is that in Justice Thomas' America, the Constitution allows the government to facially and intentionally discriminate against LGBTQ folks across the board.

2) Religion

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Like most of the Bill of Rights, the Supreme Court has held that the First Amendment applies to the states through the Fourteenth Amendment's due process clause. Thomas would incorporate most of the Bill of Rights, such as the Second Amendment, through the privileges or immunities clause, not the due process clause, but in most cases that difference would not make a difference (except as applied to foreign nationals living in America because the P or I Clause only applies to citizens).

In recent years, Thomas has joined a trilogy of Supreme Court opinions holding that states violate the free exercise clause when they provide benefits to secular private schools but not to religious private schools. These cases cite almost no history and are all of recent vintage, as I outlined here. All three cases involved government benefits that states were not required to provide but choose to provide. What happened to in "the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement"?

One may be tempted to argue that these free exercise clause cases are based on an equality rationale, not a liberty rationale. But the same could be said about the same-sex marriage cases. The government does not have to grant marriages to anyone but when it does, the Court held, the associated benefits must also be provided to same-sex couples. Thomas disagreed. But in the free exercise cases, although the government need not supply any benefits to secular schools, when it does so, it must, according to Thomas, extend those benefits to religious schools. Also, what happened to deference to the states' political processes? When dealing with religion, that deference disappears, at least under the free exercise clause.

Justice Thomas is the only member of the Court who has argued that the First Amendment's establishment clause does not apply to the states at all. Thus, it appears that in Justice Thomas' America states could have official religions (at least as a symbolic matter) and states could put giant 100 foot crosses on their government buildings.

The combination of Justice Thomas' weaponizing the free exercise clause as a super charged equal protection clause while at the same time reading the establishment clause completely out of the Constitution as it applies to the states results in a Constitution that allows states to reward religion as much as it wants while preventing states from making rational distinctions between religious and non-religious entities. These twin readings strongly favor religion over non-religion.

3) Race

Justice Thomas has voted to strike down every affirmative action program he has ever faced, state and federal, under his view that the equal protection clause requires a color-blind Constitution. As I have written elsewhere, the word race is not mentioned in that clause, and there is no serious argument that the original meaning of the clause prohibits the states from using racial criteria to make up for our racist past. To the extent Chief Justice Roberts holds the same views, which he does, Roberts does not claim the originalist mantle.

Thomas' affirmative action opinions are nothing more than his effectuating his personal value judgments through a living Constitution method of interpretation. Also, again, as to state laws, what happened to Thomas' alleged deference to state political processes?

Nowhere was Thomas' living constitutionalism more visible than in his concurring opinion in Parents Involved in Community Schools v. Seattle School District No. 1. The case involved modest efforts by parents, teachers, and school boards in Seattle and Louisville to lessen the corrosive effects of segregated schools caused by neighborhood segregation and other factors. Louisville, of course, had required segregated schools under the law prior to Brown v. Board of Education, and informally maintained segregated schools long after Brown. The efforts by both cities to expose their children to more racially diverse schools were completely voluntary and not required by any court.

Thomas voted to strike down these laudable efforts generated by local decision-makers. He argued that states have no legitimate interest in insuring their schools have even a modest degree of racial balance. And he said that "although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices." The notion that Louisville's schools were segregated because of "voluntary housing choices" is absurdly ahistorical and ignores the reality of deeply engrained Southern racism. Thomas' color-blind obsession completely ignores the harms done to non-whites by whites not only from 1791-1954, but today as well.

Some people think that affirmative action raises difficult policy issues, which Thomas has not been shy about emphasizing. In Grutter v. Bollinger, among other cases, he spent many pages on stigma and backlash that he argued is caused by universities using racial factors in their admissions processes. But those policy concerns should not be the business of a Justice who, like Thomas, claims that text and history are the only legitimate tools of constitutional interpretation. 

Thomas' affirmative action opinions make up a principle of color-blindness that is nowhere in the text, is inconsistent with most of American history, and which many states do not embrace. There is no suspense about how Thomas will vote when affirmative action returns to the Court next Term. He will vote his values, not any reasonable reading of the Constitution's text and history.

4) Guns

This past term Justice Thomas authored the Court's most expansive reading of the Second Amendment in American history. A state is not allowed to regulate guns unless it "affirmatively prove[s] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Thomas explicitly rejected any judicial balancing of state interests in public safety and gun rights. 

Thomas' opinion relies on the Court's two prior Second Amendment cases holding that the Amendment applies to the personal use of guns despite the text which says that, "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." This is not the place to rehearse all of the arguments against that reading of the Amendment. Suffice it to say that Thomas believes in a very strong judicially enforceable Second Amendment.

Justice Thomas' Constitution favors a straight, white, religious and heavily armed America. How convenient that on all of these issues, and many more, his alleged text and history interpretations align completely with the Republican Party, The Federalist Society Leadership, and Fox News.