A gay Connecticut Supreme Court justice suggested that U.S. Supreme Court Justice Clarence Thomas was being hypocritical in calling for reconsideration of rulings ensuring legal rights for gay people — while not calling for the repeal of a similar ruling that allows Thomas to be married to a white woman.
Andrew McDonald, a senior associate justice on Connecticut’s high court, took a shot at Thomas in a Facebook post after the U.S. Supreme Court justice leveraged a ruling that repealed the constitutional right to abortion to publicly call for the top U.S. court to potentially reverse rulings that bar states from outlawing gay sex and gay marriage.
“Mr. Justice Thomas had much to say today about my loving marriage. Oddly he didn’t have much to say about his ‘Loving’ marriage,” wrote McDonald, who married his husband Charles in 2009 when McDonald was serving in the state legislature.
“Loving” is a reference to “Loving v. Virginia,” the 1967 U.S. Supreme Court ruling that overturned a Virginia law barring interracial marriages. It effectively invalidated other such bans nationally.
Thomas, who is Black, lives with his white wife Virginia “Ginni” Thomas in Virginia — a mirror image of the white husband and Black wife who were the plaintiffs in “Loving.”
The couple in the case, Mildred Jeter and Richard Loving, had been convicted of violating Virginia’s law and sentenced to a year in jail. The sentence was suspended after they agreed to leave the state and not return for 25 years.
McDonald’s wedding ceremony was conducted by then-Stamford Mayor Dannel Malloy. As Connecticut governor four years later, he successfully nominated McDonald to become the second openly gay man to serve on an American state’s Supreme Court.
McDonald married his husband six years before the U.S. Supreme Court in the ruling Obergefell v. Hodges barred states from outlawing same-sex marriages.
Thomas, in his concurring opinion Friday on the decision to overturn the 49-year-old Roe v. Wade abortion rights ruling, identified three past rulings that he called “demonstrably wrong decisions”: the Supreme Court’s ruling in Obergefell, a 2003 high court case that established the right to have gay sex, and a 1965 case establishing married couples’ right to contraception.
But Thomas did not mention a fourth Supreme Court decision which is based on similar legal grounds to the other three: “Loving v. Virginia.”
“Loving” was decided in part by the Supreme Court on the grounds that Virginia’s law violated the Due Process Clause of the Constitution’s 14th Amendment. That clause guarantees that no state shall “deprive any person of life, liberty, or property without due process of law.”
So were the three other Supreme Court decisions that Thomas called out in his concurring opinion.
In that, Thomas wrote, “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.'”
McDonald declined to comment on his Facebook post when contacted by CNBC.
A Supreme Court spokeswoman did not immediately respond to a request for Thomas to comment on McDonald’s post.
Thomas, in his dissent in Obergefell v. Hodges, had chafed at the idea that so-called antimiscegenation laws banning interracial marriage were comparable to similar laws banning marriage between same-sex couples.
“The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate,” Thomas wrote in a footnote in his dissent.
He noted that America’s earliest laws banning interracial sex and marriage were based on the existence of slavery in the colonies and later states.
“Laws defining marriage as between one man and one woman do not share this sordid history,” Thomas added. “The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history.”
But on Friday, Jim Obergefell, the plaintiff in Obergefell v. Hodges, said Thomas left Loving v. Virginia off the list of cases he wants reverse because “it affects him personally.”
“But he doesn’t care about the LGBTQ+ community,” Obergefell said on the MSNBC show “The Reid Out.”
“I’m just concerned that hundreds of 1000s of marriages across this nation are at risk and the ability of people across this nation to marry the person they love is at risk,” Obergefell said on that show.
He added: “And for Justice Thomas to completely omit Loving v. Virginia, in my mind, is quite telling.”
