Now that the Supreme Court has decided to take up the issue of whether gays have a constitituional right to marriage, most of the attention will likely focus on the key swing votes in the court – Chief Justice John Roberts and Justice Anthony Kennedy. But court-watchers should keep an eye out for a potential surprise vote: Justice Clarence Thomas. He may be inclined to join with the liberal justices on this issue.
Thomas is generally seen as a staunch conservative to the right of even Justice Antonin Scalia. He notably thinks little of the concept of stare decisis, meaning that legal precedents don’t matter much to him if he thinks they interfere with a plain reading of the Constitution’s text. Thus he has been unafraid to attack long-ingrained liberal precedents.
But Thomas’ legal thinking also has a strong libertarian bent. If he thinks the Constitution does not bar it he has been inclined to allow it. The caveat here is that his reading of the Constitution has also given states leeway in drafting laws in those cases. This can be seen in his ruling on the last major gay rights case before the Supreme Court, 2003s Lawrence V. Texas.
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