After Florida shooting, Clarence Thomas complains courts puts gay rights above gun rights

U.S. Supreme Court Justice Clarence Thomas AP

Justice Clarence Thomas is the Supreme Court’s silent partner–he rarely speaks during Court sessions.

But when it comes to writing, Thomas doesn’t hold back. In an extraordinary move, Thomas has delivered a 14-page rant that alleges that his fellow justices consider marriage equality a “favored right” compared to gun owners’ rights. What makes the dissent all the more remarkable is that it comes not about a case heard before the Court but a decision by the Court not to hear a case at all.

At issue was California‘s 10-day waiting period to purchase a gun. The Ninth Circuit Court of Appeals had sided with the state in a challenge to the law on technical grounds, and the majority of the Supreme Court saw no reason to review the decision, presumably because no Constitutional issues were at stake. (Four justices have to agree to a review.) That decision to pass set Thomas off on a wide-ranging tirade that took in all the conservative bugaboos, including gay rights.

The heart of Thomas’s complaint is that the Court–and his fellow conservative Justices–just don’t make gun rights the priority that they give to other issues. “If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari [the petition to hear an appeal],” Thomas fumed. Among the “favored rights”: abortion and protected speech.

And gay rights. Thomas revisited the Ninth Circuit’s support for marriage equality, complaining that the lower court was much more lenient in that case than in the gun rights case. “[T]he Ninth Circuit held that laws embracing traditional marriage failed heightened scrutiny because the States presented ‘no evidence’ other than ‘speculation and conclusory assertions’ to support them” even though, Thomas argued, quoting Chief Justice Roberts’ dissent in the marriage equality case, “those laws reflected the wisdom of ‘thousands of years of human history in every society known to have populated the planet.'”

What makes Thomas’s dissent especially amazing is the tone-deaf timing of it, less than a week after the Florida school massacre. Moreover, even his likeliest allies seem to be less gung-ho for guns than Thomas. It’s not just that two-thirds of Americans want stricter gun control laws. No less a culture warrior than televangelist Pat Robertson is now calling for a ban on the sale of assault weapons.

But Thomas has some friends in the Florida state legislature, which refused this week to take up a bill to ban assault weapons. Instead, it had more pressing issues to take up:  a resolution that declares pornography a health risk. 

Of course, that particular resolution might not go over so well with Thomas. Past accusations of sexual harassment against him, including a fascination with porn, have resurfaced. Jill Abramson, a former Wall Street Journal Reporter and co-author of a book about Thomas and his primary accuser, Anita Hill, recently revisited Thomas’s 1991 confirmation hearings and concluded that Thomas repeatedly lied.

“Clarence Thomas had, in fact, a clear habit of watching and talking about pornography, which, while not improper on its face, was at the heart of Hill’s allegations of sexual harassment,” Abramson writes in New York Magazine. Abramson argues that the lies were so egregious that Thomas should be impeached. In a Republican-controlled Congress, that’s not about to happen any time soon, but it is a nice reminder that before there was Donald Trump, there was Clarence Thomas.

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