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Clarence Thomas leaves LGBTQ community bracing for post-Roe legal attacks

Justice Clarence Thomas' suggestion that the high court should "reassess" longstanding legal protections for LGBTQ people drew an F-bomb from Chicago's mayor.

CHICAGO (CN) — Chicago mayor Lori Lightfoot rebuked conservative Supreme Court Justice Clarence Thomas at an LGBTQ Pride event Saturday, closing a Pride month that has now left many women and those in the queer community anxious for their futures. Lightfoot, the city's first Black woman and openly gay mayor, lambasted Thomas for his insinuations that LGBTQ rights may be next on the Supreme Court's chopping block following the overturning of Roe V. Wade.

"Fuck Clarence Thomas!" Lightfoot said at the outdoor Pride event. "He thinks that we're going to stand idly by while they take away our rights?"

Her comment, which was received by the crowd with thunderous applause, came in response to Thomas' concurring opinion in Dobbs v. Jackson Women's Health Organization, in which the court ruled 6-3 that the U.S. Constitution does not guarantee a right to an abortion. The decision upends over 50 years of precedent, including both Roe v. Wade and Planned Parenthood v. Casey.

Thomas, the longest-serving Supreme Court Justice and George H.W. Bush appointee, suggested in one passage of his concurrence that based on the ruling in Dobbs, the court should reassess cases such as Griswold v. Connecticut, Lawrence v. Texas and Obergefell v Hodges — cases establishing the right for married couples to access contraception, the legality of consensual same-sex sexual activity and the federal recognition of same-sex marriages, respectively. Thomas said the court should reassess the extent of due process rights — the right of U.S. citizens not to be deprived of "life, liberty, or property, without due process" — as outlined in the 14th Amendment.

In Dobbs, the Supreme Court decided the 14th Amendment's guarantee of due process did not extend to abortion, and that the legality of abortion should thus be left to individual states. In his concurrence, Thomas went even further — suggesting the very concept of substantive due process is an "oxymoron" without any basis in the Constitution as originally written. He said the same logic the court used in Dobbs could be applied to those cases protecting LGBTQ people's rights to sexual and marriage equality.

"In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell," Thomas wrote. "Because any substantive due process decision is “demonstrably erroneous" we have a duty to “correct the error” established in those precedents."

While Justice Samuel Alito wrote in his opinion for the majority that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” the court's hard-right bent and Thomas' own history of animosity toward liberals and leftists has cast doubt on that assurance.

"The liberals made my life miserable for 43 years, and I’m going to make their lives miserable for 43 years,” Thomas is said to have told his law clerks in 1992, according to a 1993 report in The New York Times. Thomas took his seat on the high court bench in 1991, following tense confirmation hearings that centered on his alleged sexual harassment of one of his former subordinates, attorney Anita Hill.

"The first thing we've been doing here in Illinois is recognizing it's a real threat," Illinois ACLU Communications Director Ed Yohnka said of the possibility of the high court putting the LGBTQ community in its crosshairs. "I think we're going to see cases percolating up to challenge contraception and LGBTQ rights. There's no question that Thomas, at least, has a real appetite to come after these rights."

Yohnka said the ACLU was still considering all its options to fight a potential squeeze on sexual rights in Illinois. He said he and his colleagues were taken aback by how, in the wake of the overturning of Roe v. Wade, the rights one enjoyed could vary significantly over only the course of a few miles. Illinois is now the only state between New York and Colorado that protects abortion access via state law, and it is surrounded by states — like Missouri — that either have abortion bans already in place or that are likely to take action to severely curtail abortion access in the coming days.

Neighboring states also have already enacted laws targeting transgender individuals, such as Indiana banning K-12 transgender girls from participating on girls' team sports.

"Me and a colleague were driving over the Mississippi River and he commented on how over just that little stretch of highway your rights could change so much," Yohnka said. "I think the thought was with the 14th Amendment, we'd have a basic understanding of rights no matter where you are."

In this context of shrinking rights for much of the Midwest, University of Illinois at Chicago Political Science Professor Dick Simpson said he expected Illinois — and Chicago especially — to become a destination for abortion travel and those seeking expansive LGBTQ protections. As with Yohnka, Simpson said he expected the Supreme Court would only grow more hawkish on conservative cultural issues now that Roe has been overturned.

"It looks like the Supreme Court has enough of a conservative majority that they're going to try and start eroding, maybe some gun regulation cases, maybe some gay rights cases," Simpson said.

But Simpson also added Illinois would likely resist those civil rights erosions, given the state's diverse demographics and the liberal-to-left political leanings of the Chicago-area state representatives who control the Legislature. Chicago is also positioned to oppose any Supreme Court rulings against the LGBTQ community, given that it has several openly LGBTQ members of city government including Mayor Lightfoot and five City Council members.

"To my friends in the LGBTQ+ community — the Supreme Court is coming for us next. This moment has to be a call to arms," Lightfoot wrote in a May 9 tweet following the leak of Alito's draft opinion in Dobbs.

Lightfoot, a committed Democrat, often finds herself at odds not only with the conservative elements of Chicago politics, but with its growing contingent of young progressives and socialists. More than once has she derided the city's left as naïve or deluded, and more than a few left-wing protests in the city have included chants of "Fuck you, Lightfoot."

But for just this once, it seems she and the socialists are in agreement.

"We need to abolish the Supreme Court," one left-leaning member of Chicago's LGBTQ community said Monday. "Why are we letting unelected geriatrics make decisions for our country?"

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