How’s this for a soupcon of irony?

A black Supreme Court Justice whose marriage to his White wife would have been illegal if not for a Supreme Court Ruling has reservation about marriage equality for Gay people because it came through a decision by that same branch of government.

Mildred Loving and Richard Loving had been sentenced to a year in prison in Virginia for marrying each other because their marriage violated Virginia’s Racial Integrity Act of 1924. Mildred was Black, while Richard was White. They lost their appeal to the Supreme Court of Virginia, and then appealed to the U.S. Supreme Court, which heard their case.

On June 12, 1967, the Court issued a unanimous decision in their favor, overturning their convictions and ending all race-based legal restrictions on marriage in the United States.

In Loving v. Virginia the U.S. Supreme Court struck down all state laws banning interracial marriage as violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution.

Virginia had argued that there was no violation of the Equal Protection Clause because both Lovings had been equally sentenced, but SCOTUS ruled it a violation because the marriage ban  was based solely on “distinctions drawn according to race” and outlawed conduct that was otherwise generally accepted and which citizens were free to do. The Court ruled that the freedom to marry was a constitutionally protected fundamental liberty, so government could not deprive people of it on an arbitrary basis such as race.

In June 2007, Mildred Loving issued the following statement:

“My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

Three years later in overturning California’s Proposition 8 which restricted marriage to opposite-sex couples, Judge Vaughn R. Walker cited Loving v. Virginia to conclude that “the right to marry protects an individual’s choice of marital partner regardless of gender”, and this was affirmed by the 9th Circuit Court of Appeals affirmed.

In Obergefell v. Hodges (2015) the Supreme Court invoked Loving as precedent, citing that ruling a dozen times, holding that states are required to allow same-sex marriages under both the Equal Protection Clause and the Due Process Clause of the Constitution.

This court decision made Marriage equality national and not just a state by state issue, a situation that could nullify a marriage recognized in one state if the couple were to move to another.

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Although he sided with the majority, Clarence Thomas wrote a separate, broader concurring opinion claiming that just because the law has always been interpreted a certain way it doesn’t mean that it should be. Thomas argued that respecting precedent is not sacred.

And what’s the case that Thomas suggested proved his point?

“I write separately to address the proper role of the doctrine of stare decisis. In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law.”

 “It is always ‘tempting for judges to confuse our own preferences with the requirements of the law.’”

And then citing Obergefell v. Hodges. the decision that supported the right of Gay people to marry and have the same benefits that Straight people gain through marriage, he went on to state,

“the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents.”

However at his nomination hearing, and obviously before Loving was used as precedent in  a case that benefited Gay people, Thomas had said,

“stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept.”

At the time Thomas spoke favorably about standing by precedent. ,

Thomas has been an opponent of GLBT rights, and his irrelevant reference to Obergefell v. Hodges in dealing with a case to which it was not related would seem to be hinting that he would like to revisit that ruling.

There are enough conservative justices on the Court to do so.

Previously, Thomas supported Colorado’s Amendment Two that forbade any judicial, legislative, or executive action designed to protect persons from discrimination based on “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships”, and, although he thought the Texas law prohibiting sodomy “uncommonly silly”, and said that if he were a member of the Texas legislature he would vote to repeal the law because to police private sexual behavior was not a worthwhile use of “law enforcement resources”, he held that the Constitution did not contain a right to privacy, and voted to support the Texas law.

He got his, so he is happy.