Does Clarence Thomas Oppose Loving?

This week’s blog title seems a bit odd. That’s because “Loving” is not meant to function as a verb (or gerund, for you grammar nerds.) It stands for the Supreme Court case of Loving v. Virginia.

The Loving case, decided in 1967, struck down a Virginia law that banned interracial marriage. To reach that decision, the Supreme Court relied on the 14th Amendment to the U. S. Constitution, which guarantees due process and equal protection of the laws to all citizens.

What makes the Loving apropos to this week’s discussion is that Clarence Thomas is currently a beneficiary of that case, since his wife, nee Ginny Lamp, is Caucasian. Yet the Constitutional philosophy espoused by Justice Thomas in his most recent published opinions adopt a position diametrically opposed to the Loving rationale. In other words, if the Supreme Court in 1967 had been composed of the nine current Supreme Court justices, the Loving case would have been decided differently. In which case, the marriage of Clarence Thomas and Ginny Lamp would be illegal.

21st Century conservatives seem to hate the 14th Amendment. Their cry of “states’ rights!” flies in the face of an amendment that was designed specifically for the purpose of preventing states from violating individual civil rights. The Loving case was a good example of the 14th Amendment properly applied. That’s why the decision was so easy for the court in 1967. (It was a unanimous decision.)

When Justice Thomas now questions the Constitutional rights of same-sex couples to marry and for married couples to obtain contraceptive pills and devices, his thinking reflects that of the dissent in a different case—that of Griswold v. Connecticut (1965). That case, which struck down Connecticut’s ban on the purchase of contraceptives, was based on the novel principle that the U. S. Constitution’s Bill of Rights, when all the amendments were read as a whole, created what amounted to a right to privacy, notwithstanding that the literal phrase “right to privacy” was nowhere to be found therein.   

Justice Thomas and his fellow conservatives appear to want to destroy that expansive reading of our Constitutional right to privacy. Their reasoning follows the dissent of Justice Black in the Griswold case: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” (He didn’t see the literal words, so in his mind, the concept wasn’t there.)

What’s ironic here, in addition to Justice Thomas’s views that fly in the face of his own interracial marriage, is the fact that conservatives are now championing the rights of state governments to invade the privacy rights of individuals.

But weren’t conservatives the ones who used to champion individual rights vis-à-vis government intrusion? Weren’t conservatives the ones who once insisted on the sanctity of judicial precedent?