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> He literally overturned the case that protected interracial marriage and then half-heartedly tried to carve it out for himself. He "literally" overturned wha

> He literally overturned the case that protected interracial marriage and then half-heartedly tried to carve it out for himself. He "literally" overturned what? The constitutional right to interracial marriage was established by Loving v Virginia (1967). That case has never been overturned, and Justice Thomas has never said he has any interest in overturning it. I assume you are talking about his concurrence in Dobbs v Jackson Women’s Health (2022), which overturned Roe v Wade (1973). Loving doesn't directly depend on Roe, especially given Loving came 5½ years earlier. The reasoning in those two cases was distinct, so overturning one does not necessarily imply overturning the other. SCOTUS only decides cases presented to it. Even supposing every single justice wanted to overturn Loving (and I see no evidence any of them actually do want to overturn it), the only way it could be overturned would be if a case was appealed up to SCOTUS seeking to do so. Since currently no states have laws against interracial marriage on the books (Alabama was the last to repeal theirs in 2000), that would require first a state to pass a new law against interracial marriage. The odds of any state doing that in the next 50 years is almost zero, so the odds that SCOTUS will ever get asked whether to overturn Loving or not is close to zero. Whatever any of the justices may think about the rights or wrongs of that case in theory is practically irrelevant. That's a very different situation from Obergefell – many states still have laws against same-sex marriage on the books, so all it would take to get a case revisiting Obergefell before SCOTUS would be for a state to decide to disregard Obergefell and start enforcing those laws again. Nobody knows whether that's actually going to happen, but it is plausible in a way that reintroducing laws against interracial marriage isn't.

Spivak 3y ago
And all it takes is one state to pass one and they're in the same situation as the gays. Their reasoning isn't all that distinct, Row, Loving, and Obergefell are all based on the constitutional protection that is now gone. If such a law was passed it would be upheld as constitutional. And Thomas knows this which is why in the opinion he invented some flimsy reasoning as to why interracial marriage has some deeper history in the US than gays being life partners. I'm not really sure what you're arguing, I think we're saying the same thing. More people are against gay marriage than interracial marriage but lord knows that crowd isn't gone by a long shot.
- deleted 3y ago
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- skissane 3y ago
  > And all it takes is one state to pass one and they're in the same situation as the gays. Their reasoning isn't all that distinct, Row, Loving, and Obergefell are all based on the constitutional protection that is now gone. If such a law was passed it would be upheld as constitutional. And Thomas knows this which is why in the opinion he invented some flimsy reasoning as to why interracial marriage has some deeper history in the US than gays being life partners. When the 14th Amendment was being proposed and ratified, there was a lot of debate about whether it entailed a constitutional right to interracial marriage. Its opponents argued that it did, and – since they believed that interracial marriage was a bad thing that ought to be illegal – they therefore argued the Amendment should be rejected. Most of its supporters agreed with its opponents that interracial marriage was a bad thing that ought to be illegal; but they disagreed that the text of the 14th Amendment entailed any constitutional right to it. (There were likely some 14th Amendment supporters who did believe that it implied a constitutional right to interracial marriage–but they were smart enough to keep their mouths shut, they didn't want to hurt its chances.) So, Loving v Virginia would not have been that surprising to people alive at the time of Amendment's adoption, because it was simply a consequence predicted by some at the time eventually coming to pass. But I don't think anyone in 1866–1868 could have foreseen Roe or Obergefell. Therefore, it is arguable that Loving possesses a textual-historical plausibility (it is what some people thought the text meant at the time of its adoption) which Roe and Obergefell lack (nobody at the time of the text's adoption would have ever thought it meant either.) So, if someone has a judicial philosophy which puts a great deal of emphasis on how the text was understood at the time of its adoption, they do have a rational basis for distinguishing Loving from Roe and Obergefell.
  - Spivak 3y ago
    You basically outlined Thomas's reasoning and I still think it's flimsy as hell. Were the 14th amendment proposed today people would be arguing that equal protection implied marriage equality. And honestly probably trans rights, and biased policing, and voting access, and gerrymandering. Saying that the 14th amendment only gives you the rights people thought of at the time is like saying the 2nd amendment only guarantees you muskets or 1A doesn't apply to the internet. But marriage equality is particularly egregious because it's the same case with the same arguments for and against and if one is justified by the right to privacy of people in their own homes then so too must the other and vice versa. And worse even if you bought this line of reasoning the argument is equally strong that interracial marriage isn't protected using the same historical basis. The opinion overturning Loving would practically write itself. It's not some gotcha, if you believe that right to privacy isn't implied then all these cases should fall. It's not a bad thing, not every protection we have has to be in the constitution. But that Thomas went the extra mile to call interracial marriage as "no that one stays" is telling.

Spivak 3y ago

And all it takes is one state to pass one and they're in the same situation as the gays. Their reasoning isn't all that distinct, Row, Loving, and Obergefell are all based on the constitutional protection that is now gone. If such a law was passed it would be upheld as constitutional. And Thomas knows this which is why in the opinion he invented some flimsy reasoning as to why interracial marriage has some deeper history in the US than gays being life partners. I'm not really sure what you're arguing, I think we're saying the same thing. More people are against gay marriage than interracial marriage but lord knows that crowd isn't gone by a long shot.

deleted 3y ago
[deleted]
skissane 3y ago
> And all it takes is one state to pass one and they're in the same situation as the gays. Their reasoning isn't all that distinct, Row, Loving, and Obergefell are all based on the constitutional protection that is now gone. If such a law was passed it would be upheld as constitutional. And Thomas knows this which is why in the opinion he invented some flimsy reasoning as to why interracial marriage has some deeper history in the US than gays being life partners. When the 14th Amendment was being proposed and ratified, there was a lot of debate about whether it entailed a constitutional right to interracial marriage. Its opponents argued that it did, and – since they believed that interracial marriage was a bad thing that ought to be illegal – they therefore argued the Amendment should be rejected. Most of its supporters agreed with its opponents that interracial marriage was a bad thing that ought to be illegal; but they disagreed that the text of the 14th Amendment entailed any constitutional right to it. (There were likely some 14th Amendment supporters who did believe that it implied a constitutional right to interracial marriage–but they were smart enough to keep their mouths shut, they didn't want to hurt its chances.) So, Loving v Virginia would not have been that surprising to people alive at the time of Amendment's adoption, because it was simply a consequence predicted by some at the time eventually coming to pass. But I don't think anyone in 1866–1868 could have foreseen Roe or Obergefell. Therefore, it is arguable that Loving possesses a textual-historical plausibility (it is what some people thought the text meant at the time of its adoption) which Roe and Obergefell lack (nobody at the time of the text's adoption would have ever thought it meant either.) So, if someone has a judicial philosophy which puts a great deal of emphasis on how the text was understood at the time of its adoption, they do have a rational basis for distinguishing Loving from Roe and Obergefell.
- Spivak 3y ago
  You basically outlined Thomas's reasoning and I still think it's flimsy as hell. Were the 14th amendment proposed today people would be arguing that equal protection implied marriage equality. And honestly probably trans rights, and biased policing, and voting access, and gerrymandering. Saying that the 14th amendment only gives you the rights people thought of at the time is like saying the 2nd amendment only guarantees you muskets or 1A doesn't apply to the internet. But marriage equality is particularly egregious because it's the same case with the same arguments for and against and if one is justified by the right to privacy of people in their own homes then so too must the other and vice versa. And worse even if you bought this line of reasoning the argument is equally strong that interracial marriage isn't protected using the same historical basis. The opinion overturning Loving would practically write itself. It's not some gotcha, if you believe that right to privacy isn't implied then all these cases should fall. It's not a bad thing, not every protection we have has to be in the constitution. But that Thomas went the extra mile to call interracial marriage as "no that one stays" is telling.