Clarence Thomas has said that U.S. Supreme Court precedent isn’t “the gospel” and that it can be overturned as the court weighs whether or not to revisit marriage equality.
The conservative Justice said during a recent appearance at the Catholic University of America’s Columbus School of Law in Washington, D.C. that he would not follow court precedent “if I find it doesn’t make any sense.”
“I think we should demand that, no matter what the case is, that it has more than just a simple theoretical basis,” Thomas said, via legal news outlet Above the Law. “[If it’s] totally stupid, and that’s what they’ve decided, you don’t go along with it just because it’s decided. You could go up to the engine room and find that it’s an orangutan driving. And you’re going to follow that? I think we owe our fellow citizens more than that.”
“I don’t think that … any of these cases that have been decided are the gospel,” he continued. “And I do give perspective to the precedent. But … the precedent should be respectful of our legal tradition, and our country and our laws, and be based on something – not just something somebody dreamt up and others went along with.”
Related: Will marriage equality be overturned? Here’s how it could happen
Thomas wrote in his concurring opinion when the conservative majority created by Donald Trump overturned Roe v. Wade in 2022 that the court should revisit and overrule decisions that prevent state restrictions on contraception, marriage equality, sodomy, and other private consensual sex acts, calling the rulings “demonstrably erroneous.”
Thomas was one of the four dissenting votes in Obergefell v. Hodges, the 2015 ruling in which the Supreme Court determined that laws prohibiting same-sex couples from marrying are unconstitutional. While the court has made no official move to reconsider the case, nine states have recently introduced resolutions asking the court to hear it again. None have yet passed, and even if they were to, the resolutions are nonbinding — meaning they carry no legal weight, and the court is not obligated to hear them.
Kim Davis, a county clerk in Kentucky who was sued by a same-sex couple for refusing to issue them marriage license, has also appealed the verdict against her to the Supreme Court, and included in her filing a petition to overturn Obergefell. The court has not agreed to hear her case, and doing so would not inherently reverse marriage equality.
If Obergefell is reversed, marriage equality would be outlawed in 31 states. Marriages between same-sex couples would still be recognized federally under the Respect for Marriage Act. Signed into law by President Joe Biden in 2022, the act mandates that the federal government recognizes same-sex and interracial marriages, and that all states recognize those performed in other states.
Related: Marriage equality will be banned in these 31 states if Obergefell is overturned
Conservative Justice Amy Coney Barrett also recently weighed in on the effort to overturn marriage equality. She called the right to marry “fundamental” in her new book, writing that “the court has held that the rights to marry, engage in sexual intimacy, use birth control, and raise children are fundamental, but the rights to do business, commit suicide, and obtain abortion are not.”
Over 68 percent of Americans support marriage equality, according to a recent poll from Gallup, including a record 88 percent of Democrats, 76 percent of Independents, and only 41 percent of Republicans – the highest recorded partisan divide since Gallup began polling opinions on marriage equality in 1996.
While Barrett did not directly address her views on marriage equality during her confirmation hearings, she had previously suggested it should be left up to the states. She also recently told CBS News that the law is “not just an opinion poll.”
“You know, what the court is trying to do is see what the American people have decided. And sometimes the American people have expressed themselves in the Constitution itself, which is our fundamental law. Sometimes in statutes,” Barrett said. “But the court should not be imposing its own values on the American people. That’s for the democratic process.”
This article originally appeared on Advocate: Clarence Thomas says past SCOTUS rulings, like marriage equality, aren’t ‘the gospel’ and can be overturned