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