Supreme Odds: How Will Justice Clarence Thomas Vote On Marriage Equality?

Justice Clarence ThomasJournalist Jeffrey Toobin’s book The Nine recounts a story about Justice Clarence Thomas becoming friendly with a lesbian law clerk to liberal Justice John Paul Stevens and the clerk’s partner, an avid snowboarder.

“Thomas liked the two of them so much that for a while he kept a photograph of the snowboarder on his desk,” wrote Toobin.

But knowing and even liking the couple has apparently not persuaded Thomas interpret the law to treat gay people just like everyone else. In cases big and small, he has frequently voted against our interests.

In his personal dissent to the Lawrence v. Texas decision striking down sodomy laws in 2003, Thomas wrote, “If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”

And yet he voted against striking the law. In fact, though it is a close call, his record is the worst among the conservatives on the bench.

Here’s what we think the odds look like, statistically speaking, for Thomas, as well as some other factors to weigh in when considering his vote:

Percent voted pro-gay: 30

Percent voted with liberal wing this session: 20

Odds he’ll vote for two pro-gay decisions: 1 in 6

Appointed by: President George H.W. Bush

Age: 65 on June 23

Religion: Catholic

Most notable cases: In his dissent on Lawrence v. Texas, Thomas spelled out an important principle in his legal philosophy –one with great implications (negative ones) for LGBT people. He said he could find no right to privacy in the constitution or the Bill of Rights. Previous decisions of the Supreme Court (in particular 1965’s Griswold v. Connecticut) have relied on a right to privacy, especially in the context of marriage.

Interesting factoid: Many court observers have portrayed Thomas as a parrot of Antonin Scalia (in 10 gay-related decisions, they disagreed only once). But CBS court report Jan Crawford Greenburg, in her book Supreme Conflict, portrays Scalia as a follower of Thomas, saying Scalia repeatedly switched his vote to join a Thomas dissent. Most remember Thomas not just as a doctrinaire right winger, but for Anita Hill’s well documented charges of sexual harassment in the workplace when she worked for Thomas.

Notable remark during Prop 8 argument: Thomas made no remarks and asked no questions during the argument –a trait that has distinguished him on nearly every oral argument.

Notable remark during DOMA argument: Ditto.

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at


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  • Spike

    Uncle Tom Clarence will vote how Scalia tell him to.

  • 1EqualityUSA

    Clarence Thomas has a resentful spirit and his vote will reflect this.

  • Polaro

    Clarence Thomas is the worst justice in 100 years. He is not intelligent enough for the job and he allows his politics to compensate for his lack of intellect in decision making. This will be interesting, however, since it hits very close to home. The direct analogy to gay marriage is interracial marriage, and he’s married to a white woman. Seems pretty basic even for a stupid man to figure out. But, he has raised the level of stupidity on me before.

  • jwrappaport

    @Polaro: Read the wiki on Justice James McReynolds. Now there’s a true monster. I don’t care for Thomas’s record either and frankly don’t understand his fanatical originalism, but he’s neither stupid nor a blind follower of Scalia. Just read about his approach to the 4th Amendment or free speech.

    I don’t think he’s a homophobe in the same way Scalia is, but rather a zealous, doctrinaire originalist who has missed the forest for the trees. Read what he had to say in Lawrence – it’s quoted in the article.

  • NormdePlume

    He will vote as he always does. He has a sign he holds up; it points to either scalia or alito and it says “what he said”.

  • Polaro

    @jwrappaport: Sorry, he may have had a competent intern who wrote something mildly interesting for him once, but the man is a disaster. He is ethically challenged. Says nothing and stands for everything wrong with the supreme court. But, I guess we mostly agree. I may have been a bit off on the 100 years, but he still is terrible.

  • AxelDC

    If you are counting on Thomas, you’ve already lost. If you get Thomas, you likely have a 7-2 vote and so he is superfluous. In a 5-4 decision, he will go against us.

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