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Justice Thomas Errs in Raising Gay Marriage and Contraception Issues

Justice Thomas Errs in Raising Gay Marriage and Contraception Issues

In his written opinion on Roe v. Wade, Justice Clarence Thomas suggested that three other cases that rely on the same constitutional foundation as Roe v. Wade be examined for review.  They are the Griswold v. ConnecticutLawrence v. Texas, and Obergefell v. Hodges cases.  These declared laws against contraception, gay-sex, and gay marriage respectively to be unconstitutional.

In the opinion of the majority, the overturning of Roe v. Wade should not set a precedent for any other constitutional issues based on the privacy argument.  But Thomas wrote otherwise.  He said they should be reconsidered.

While Thomas’ thinking would be worthy of a law school debate, it was not the time to raise such theoretical issues – especially since the majority opinion clearly stated that the Roe decision was not to open other doors.

It was certainly a bad time to suggest otherwise.  One of the arguments being raised by the very angry opponents of the Court’s Roe v. Wade decision is that it would result in the elimination of constitutional protections for gay intimacy and marriage – and the use of contraception.  They raised those issues – whether valid or not — to build more support for their efforts to use Roe v. Wade as an election issue against Republicans.

It would have been a ridiculous argument until Thomas gave it legitimacy in the political sphere.

Regardless of Thomas’ position on those issues, the majority of the Supreme Court disagrees.  There is virtually no chance that the Court will take up these cases and decide to overturn them.  Thomas gave the pro-abortion advocates false credibility.

None of the cases cited by Thomas involve the termination of a developing human.  There is no rational argument to deny gay couples sexual intimacy or the right to marry.  Homosexuality had been accepted and normalized in American society long before the high Court made gay marriage legal.  There were already widespread contractual unions between gay individuals that provided virtually all the benefits of marriage.  More and more businesses were recognizing gay couples’ contractual unions. 

As a libertarian-leaning conservative, I favor maximum freedom for all Americans.  It is the overarching promise of the Constitution – the pursuit of “life, liberty and the pursuit of happiness.”  I do not favor legislating the sexual practices of anyone as long as they are not overtly harmful to others.

Contraception also does not take a life.  In fact, both sperm and human eggs are created and disposed of as part of nature’s sexual cycle.  In addition, with bans and restrictions on abortion, contraception should be encouraged.

There is no threat to gay relationships or the use of contraception … none … nada.  In arbitrarily raising these issues, Thomas only added confusion, division, and hostility to the already overcharged national debate.  He should have kept silent and saved his fine-point constitutional theories for the university lecture tour.  

So, there ’tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.


  1. Ted

    I totally approve of Thomas but that question is not before the court. And probably never will be

  2. Ben

    Obviously, I agree with you on this one, but also wonder why this is where you draw the line on Thomas whack-job thinking? Or whether he thinks at all? Think you fell short of describing all the wrong-headed thinking this man has. Or his wife. Or him when confronted with Scotus issues involving said wife.

    I also don’t agree that if they have not commented, therefore they don’t agree. We have seen two recent nominees lie about their “feelings” towards Roe, towards precedents, it’s not hard to forecast they will do it again for the Thomas issues, or others coming up potentially based on the new precedent for Roe. At this point, even if they say it, I don’t believe it.

    But, aside from the article, when you say: “the pursuit of “life, liberty and the pursuit of happiness, I do not favor legislating the sexual practices of anyone as long as they are not overtly harmful to others.” I agree except for your concept of the greater harm. Because you might not personally favor it, but your party of favor, favors something different, left and right, all over the place, all the time. Tell that to the 10-year old Ohio rape victim having troubles crossing State lines for an abortion because your accepted sexual practices harmed her egregiously. To me, that’s one small person and a huge breakdown in your concept of morality. Tell that to 1/4 of all pregnancies occurring in forced-delivery states to women under the poverty line without easy access to safe medical attention.

    You can only BAN safe abortions. Roe v Wade didn’t start abortions, it just ended unsafe abortions.

    You are only one unplanned, unwanted, pregnancy away from being Pro Choice.

    If it’s not your body, it’s not your decision, get out of their wombs.

    Pro Choice is not as scary as no choice which is much more deadly.

    Republicans will not protect you if you are a:
    Union worker
    asylum baby
    black man driving, running, in a nice neighborhood

    But they will protect a fetus right up until delivery, in which case, see above.

    • Perry

      Ben you’re full of shit. Boy

      • K Sny

        Ben is a Leftist zealot who wants a Socialist, God less Country. A Government that will take
        care of his every need, at the expense of others.

        • Ben

          That’s really funny K Sny. But nice of you to say Socialist versus these stupid idiots using Communist. Still not really true. I do enjoy a good Socialist program like Social Security or Medicare, but sorry === I’m a giver not a taker. Matter of fact, more Red States are in the top Ten Fed Tax trough feeders, 8 out of the top ten vote Republican. They get more Fed taxes back than they pay in. My State of NJ pays more in than they take out. When it comes to being taken care of by government programs, Republicans rule. It’s the way they rule, it’s their programs that cause it. Funny that they think they need all those guns to protect so little :>(

          That’s right, Red States get their needs taken care of MORE than blue states. Sorry K. Personally, while I have taken many a tax deduction, I have rarely used Government services until I hit retirement age to take advantage of SS/Mcare, which, by definition, are really mandatory insurance plans — sort of socialist — that I paid into, probably more than you.

          But at least you termed it socialism, thank you for that :>)

          • Gary

            Social security and Medicare ain’t socialism. We work and pay into the system. Of course there’s people who have always been handicapped and never able to work. That’s fine to take care of them. But you socialists commies want a real nanny state And that doesn’t work

          • Ben

            Gary, there is no such thing as a socialist communist, sorry. And SS and Medicare are most certainly socialist programs. The State MANDATES citizens to join a common insurance pool which is doled out by the Government. Not to frost your cake, but the public library is a socialist program too.

            It has been that way since 1935, well, the library much earlier, but most say we started socialist programs about 1935. Medicare was the 60’s.

            Which Democrats want a nanny state and what programs are they pushing to make it so? I am sure there are some, but don’t know many who desire a Nanny state. Make a good tag line trope for Republicans though.

    • Jason

      Thomas isn’t a whack job. He just doesn’t think that the constitution is a living breathing thing that changes when the wind blows. He’s an originalist and that’s what he should be. But queers shouldn’t worry. Nobody is going to sue They can continue to be sick and perverted and marrying.

      • Ben

        And he’s the only guy to block a document request about the 1/6 insurrection because he’s an originalist? Or did he do it for the personal and political reasons because wife Ginni was embroiled with about-to-be-arrested lawyer John Eastman, active supporters of The Big Lie who lobbied Federal and State legislators to overturn the election via a scheme deemed illegal, by Eastman of all people.

        Yeah, one hell of a stand up guy. Sure, he’s an originalist with a zealotry beyond Alito’s. He is the most conservative Scotus justice we have. But this affirmative action Yale grad cum government loan sufferer who became an alcoholic but quit, congratulations for that. He asks the least number of questions during open argument yet is probably the most liked judge, personally, on the court. He has the habit of learning everyone’s name, even janitors, he passes funny notes while on the bench, he has a great laugh he uses a lot. Easy to be happy with job for life :>) Nixon had that too.

        This “man” who made his bones through affirmative action now hates desegregation and integration. He is the originalist of the 1789 Constitution who knows better than most how slavery was affirmed by The Constitution, it’s in the original text, it’s the Constitution’s largest overturned precedent, an action against originalism if there ever was one.

        For a guy who massively benefitted from government assistance he now turns his back on it. He once was to be a priest, he turned his back on that too. He is what he is, but what he is, is perverse. And he will protect his own by winking at the rule of law if it benefits him personally.

        No, not my favorite justice and the fact no one is jumping on his whacko ideas does not comfort me at all given recent Scotus attacks on precedents overturning 50 years of jurisprudence in a heartbeat.

  3. Ben

    Perry seems obsessed with boys. He mentions his desire on almost every post. Just another closet case in deep denial.

    • Bill

      All abortions are unsafe. They murder babies

  4. K sny

    I don’t believe that he is going after Contraception, but he will go after same-sex marriage, why, because
    like abortion, it is up to individual states to determine ANY marriage legality. When you get married in
    a civil service the JOP or clerk who is allowed to perform legal marriages ends with “In the power invested in
    me by the state of _________, I now pronounce you Man And Wife, He doesn’t say “the power invested in me
    by the U.S. Government and the Constitution”. Marriage is not mentioned ANYWHERE in the Constitution, it
    is a states jurisdiction.

    • larry Horist

      K sny …. you touched upon a point that I have been ponder for some time. Is ANY marriage guaranteed by the Constitution?

  5. Carolinadog

    The Gay Marriage thing which required changing the definition of a word in order for it to fit the argument, the fact that the liberal justices were actively involved in the issue before them and refused to recuse, the changing of the wording of Obama care to make it fit , and the issue of the definition of “Natural Born Citizen” being avoided like a case of Covid are all issues that need to be revisited.

  6. Mike

    Larry, While I agree with you that Gay Marriage, Gay Sex, and Birth Control should not be on the Supreme Court Docket, we do have Thomas voicing the political beliefs of many conservatives. The current court claims to base their rulings on an “originalist” interpretation of the Constitution, obviously that is BS, they base their rulings on their political beliefs, and what they find convenient for themselves. Obviously if “originalism” was the basis for their arguments, then Thomas would have included Loving vs Virginia in his list of cases to revisit, clearly that case represents changing of “current norms” that this court says they wish to look beyond and return to 230 years ago and figure out exactly what the writers of the constitution had in mind. But more to the point of your statement that folks who feel their marriage and relationship rights are being threatened need not worry because the rest of the justices have said they aren’t-you clearly have not been following the news-specifically regarding Susan Collins. While I have to think Ms Collins was an idiot to believe what she was told by Kavanaugh and Gorsuch regarding Roe v Wade, nonetheless she has stated publicly that she was lied to. So the question is-why should we believe that these rights are not on the chopping block just because you say they aren’t when one of the sitting justices says they are?

    • larry Horist

      Mike .. A few quick responses. First, of all, I generally like Thomas. He well represents the conservative view of the Constitution and the role of the Court. I do agree that the Court is political. I have made that argument for decades. It is more philosophic than partisan, although the philosophy is carried by partisan politics — such as who nominates and confirms justices. The essential division is between those who see the Constitution are malleable to the zeitgeist of the times and those who see it as a more durable set of guidelines. Those who tend to legislate from the bench and those who see the job as strictly interpretation. I always found it ironic that they say the court is .. or should be .. nonpartisan, but the decisions seem to represent the partisan positions of the day.

      I take my belief that they Court will not deal with contraception of gay marriage (although slightly less confident of the latter) because I see no support from any justice other than the academic argument raised by Thomas. He is correct that basing them on privacy does make them vulnerable. Even Ginsburg recognized the weakness in the constitutional underpinning of Roe. She Actually said it was not the most well founded decision.

      I believe gays have a right to get married, but I am not sure the Court proclaimed that right in the correct place … the fudgy privacy clause. I would think that it would be more correctly protected under equal application of the law. On the other hand, is marriage between heterosexuals guaranteed by the Constitution or is it a matter of custom and state laws. I have not heard of a federal judge performing a marriage. But ministers, local magistrates and sea captains do. I probably should look into that.

      Justices have always been coy about stating their vote on any matters that would appear before the Court. Ironically, it was Ginsburg who advanced that finesse during her hearings. They talked about the important of sticking with precedence, but never said it applied to all situations. They finessed. It was up to the senators to see through it or not.

      And breaking precedence is not unprecedented. We ended slavery — and that was enshrined in the Constitution. We overturned the Dred Scott Decision. I do not believe Collins was lied to, but I do think she was misled by her own interpretation of a non-specific statement. It is certainly possible to believe in the importance of precedence, but not in every case.

      With regard to the Court being nonpartisan, i should add that I do not believe that nonpartisanship exists anywhere in government. Government is politics and politics is government. Everyone in government is a partisan being. There Justice Department is partisan. There is no such thing as a non-partisan commission. Just thought I would add that ….lol.

      • frank stetson

        So far this court has done almost everything it said it would. And this one is in writing. A few have also done what the said they wouldn’t when it comes to flipping on precedents. No reason to not believe anything but that they would continue that.

        I would say, never say never, and, in this case, we have it in writing. And it ain’t no draft.

        It’s like much of the progress we fought for in the 60’s, won in the 70’s, is going away 50 years of precedents later.

  7. Ben

    Ban queers from being near children

    • Ben

      If you are a gay child, do you have to stay away from yourself?

      Should we maybe have “gay camps,” like where we put those evil American Japanese in WWII?

      Perhaps if you were better parents, you wouldn’t have to fear your kids being groomed away from your beliefs. Meanwhile you keep grooming for guns and look where that got you. Uvalde, Illinois, Buffalo. Your gun groomers seem much more dangerous than a gay pride parade.

      • Ken

        Yes. The japs were evil. Just like blm.

        • larry Horist

          Ken. We were at war with Japan’s evil, but the Japanese Americans were not evil people any more than the German and Italian Americans — And we were at war with evil Germany and evil Italy. FDR sent only Japanese to concentration camps because he was a white supremacist and racist. That was is evil. BLM is not a force for good, for sure. They are also driven by the evil of racism and violence.

          • Ken

            Point taken. The Japanese Americans didn’t deserve that. It could happen again with democrats in control