Seven Critical Questions Clarence Thomas Should Ask About Queers

While deceased Supreme Court Justice Antonin Scalia got all the attention for his rhetorical excess, Clarence Thomas is an equally implacable foe of LGBTQ equality, at least when it comes to interpreting the constitution.

He’s also the justice who never, ever asks questions during oral arguments, sitting mutely as his colleagues spar with counsel, the quietest Justice in history. Is there a connection between his antipathy and his silence? We think so.

Is that because he’s bored? Already made up his mind? Shy? Nobody can say. But what we do know is that Thomas holds a particularly dim view of LGBTQ Americans, and has on numerous occasions offered misinformed views on our inferiority.

Maybe if he asked a few more questions he’d learn a thing or two about us. On the other hand, he’s not likely to fill the right-wing vacuum created by Scalia’s death. Silence never convinced anyone.

As the political battle over Scalia’s replacement heats up, and the court kicks off another terms, here are a few examples of what Thomas can learn with a few well-timed queries.

1. What’s the difference between banning interracial marriage and banning same-sex marriage?

This is a topic Clarence may know something about. He himself is in an interracial marriage. But he apparently doesn’t see any comparison between his own relationship and that of LGBTs. In his dissent on Obergefell v. Hodges (the case that legalized marriage equality nationwide), he wrote:

“The suggestion of petitioners that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. America’s earliest laws against interracial sex and marriage were spawned by slavery. For instance, Maryland’s 1664 law prohibiting marriages between ‘freeborne English women’ and ‘Negro Slaves’ was passed as part of the very act that authorized lifelong slavery in the colony.

That’s true — racist laws did indeed extend to marriage as a means of subjugating people of color. But that’s not the point. The justification for banning gay and lesbian couples from marrying is the same as the justification for antimiscegenation laws: tradition. It’s not a good enough reason to enshrine discrimination into law in either case.

2. Does discriminating against gays help anyone?

Back in the 90s, Colorado voters passed a law that made it easier for cities and the state to discriminated against LGBTQs, and harder for towns to protect us from discrimination. A lawsuit followed, and eventually the Supreme Court overturned it. (Thanks, in part, to a lawyer named John Roberts who eventually became the Chief Justice Roberts.)

The primary reason for overturning the law: it lacked any rational basis. Allowing discrimination against gays served no legitimate purpose, and as such, it couldn’t be sustained as a law.

Antonin Scalia wrote the dissent in the case, arguing in favor of keeping the law in place. “Coloradans are entitled to be hostile toward homosexual conduct,” Scalia wrote. Thomas signed his name in agreement.

3. Does sex need to be “protected” from gays?

In one of the stranger lines of his Colorado ruling, Scalia wrote that letting the government punish gay people is simply a “rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority.”

Thomas agreed. How exactly are sexual mores being protected when landlords can evict you for who you love? Well, that’s never been clear.

4. Are Americans entitled to privacy in the bedroom?

When the Supreme Court overturned sodomy laws over a decade ago, Thomas was among those arguing to keep them in place. But this time, his reasoning was different from Scalia’s. Arresting private citizens for consensual sex is “uncommonly silly,” he wrote — an insulting position to take, given that lives were ruined by the law. But, he added, there was “no general right of privacy” in the Constitution, so if the state wan’t to arrest you for who you fuck, that’s just fine.

5. Does homophobic harassment rise to the level of assault?

You might remember a few years ago, when the Westboro Baptist Church went to the Supreme Court to defend their right to picket the funerals of dead soldiers. Most of the justices reluctantly agreed that the church had the right to engage in hateful speech, but Alito disagreed: such attacks went beyond what was protected by the First Amendment, he wrote. Nevertheless, Thomas sided with the picketers:

The protestor’s signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy.

6. Is treating someone equally the same as “preferential treatment”?

In a case dating back to the 90s, Thomas agreed with a dissent from Alito that state laws should not protect gay people from discrimination. According to Scalia, Thomas, and Justice Rehnquist, discrimination “does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment.”

Except that the so-called “preferential treatment” was simply inclusion under the same laws that protected everyone else. Apparently, wanting due process and equal protection amounts to “preferential treatment.”

7. Does equality impose a burden on anyone?

Back in 2000, the Boy Scouts defended their ban on gay members before the Supreme Court, and Thomas was in the majority that ruled in favor of the discriminatory rule. The justices wrote:

An intrusion into a group’s internal affairs by forcing it to accept a member it does not desire [is an] unconstitutional burden. However, the freedom of association is not absolute; it can be overridden by regulations adopted to serve compelling state interests.

Apparently, Thomas didn’t see nondiscrimination as a “compelling state interest.” Harsh.