When Justice Clarence Thomas voted with the majority to overturn Roe, in a separate concurring opinion, he spoke of the need for the court to examine other past decisions that also were erroneous – supposed ‘constitutional rights’ that the court had entirely made up just as the Roe court had made up a ‘constitutional right’ to abortion nowhere to be found in the Constitution itself. Justice Thomas in his concurring opinion put it this way:
“…we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,…”
To review, Griswold, a 1965 case, was about the right of married people to obtain contraceptives. Lawrence, a 2003 case, involved the right to engage in consensual sexual acts. Obergefell, a 2015 case, involved the right to homosexual ‘marriage’.
Justice Thomas is saying that the court cannot choose to do only ‘selective housecleaning’. As an example, the ‘constitutional right’ to same sex ‘marriage’ is nowhere mentioned in the Constitution any more than the ‘constitutional right’ to abortion is to be found in the Constitution.
Justices Breyer, Sotomayor and Kagan, the liberals on the court picked up on this in their joint dissent in Dobb’s:
“What, then, of the right to contraception or samesex marriage? Would it be ‘scrupulously neutral’ for the Court to eliminate those rights too? The point of all these examples is that when it comes to rights, the Court does not act ‘neutrally’ when it leaves everything up to the States.”
Clarence Thomas in his concurring opinion has become the ‘intellectual conscience’ of the court. You can’t choose to selectively houseclean and be intellectually honest at the same time. You cannot take a new broom and sweep clean one portion of room while at the same time neglecting the rest of the dirt on the floor.
If the Supreme Court (broom) is not willing to finish the job, why not the broom of certain states? If the Court is not willing to use their broom to finish the job of sweeping out the dirt of entirely contrived so-called ‘constitutional rights’, what is to prevent the states from doing it for them? The answer is that the states can take their own broom in hand under the license granted in Dobb’s.
In sending the decision on abortion back to the states, the Supreme Court in its opinion talked much of the history of the nation and how things were at the time of the ratification of the Constitution – the powers and rights of the states were to be preserved and respected. The court put it this way at page 77 of the Dobb’s opinion; granting a license to the states:
“That respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.” (emphasis added – Dobb’s page 77)
Whether it was meant to be a signal to the states or not, herein lies an invitation to the people of the states in matters of ‘great social significance and moral substance’ to take up their own broom. As an example, the court entirely made up a right to homosexual ‘marriage’ in the Obergefell case. Justice Antonin Scalia adamantly dissented to what was done in Obergefell and reasserted the right of citizens to govern themselves through their elected federal – and state – representatives.
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact – and the furthest extension one can even imagine – of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” Obergefell v. Hodges, 576 U.S. (2015).
Following Dobb’s, the people of the states now have the liberty to outlaw abortion from the moment of conception if they so desire. The Supreme Court will respect the decision of the people of a state acting through their elected representatives in the state legislatures.
What if the legislature of a state decides that same sex ‘marriage’ is not to be performed or recognized in that state? The state would be acting in a matter of ‘great social significance and moral substance’ and the Supreme Court would be obligated to uphold and respect such a state law:
“That respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.” (emphasis added – Dobb’s page 77)
At the same time, as with abortion, the court could point out that other states may choose to recognize same sex ‘marriage’ just as they may choose to continue to legalize abortion. Yes, it is dividing the nation (we already refer to red states and blue states). But until the Supreme Court is willing to heed Clarence Thomas’ advice and “reconsider all the courts substantive due process precedents” including Griswold, Lawrence, and Obergefell, the division between the states will only grow.
The unalienable right to life immortalized in the Declaration of Independence {the charter of our nation} trumps the other side’s so-called ‘right to abortion’), but until the court steps up to the plate and reverses the past “egregious errors” of the court – such as the supposed finding of a ‘constitutional right’ to same sex ‘marriage’ denigrating, dishonoring, and disrespecting God’s holy sacrament and institution of marriage – the states will remain divided on this and other issues of ‘great social significance and moral substance’.
An old broom knows the corners. Clarence Thomas, the now senior member of the court, has become the ‘intellectual conscience’ of the court and has warned the others that they were being intellectually dishonest by leaving in place other ‘egregious’ errors of the court that found supposed constitutional rights nowhere mentioned in the Constitution.
Yours very sincerely and respectfully,
R. Martin Palmer
P.S. For those of you wishing to read the Dobb’s case that overturned Roe in its entirety, it may be found on our website (naapc.org). We enlarged its small print electronically so that when you print it off it is easier to read.
You also may want to lobby your own state legislators to take the people’s broom in hand and clean up the dirt left by the Supreme Court.
Yours very sincerely and respectfully,
Martin Palmer
Leave a Reply