Thread: Justice Thomas confirms “precedent” is not the gospel--should be critically evaluated

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See: Clarence Thomas breaks with precedent

“He clarified, “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.”

Thomas has notably dissented from the Obergefell v. Hodges decision, which legalized same-sex marriage, reflecting his broader skepticism of certain substantive due process rulings”.

For those interested in why the Majority’s opinion in Obergefell v. Hodges is at odds with our Constitution and its understanding by those who framed and helped to ratify it, and is a glaring erroneous “precedent”, see Justice Thomas’s DISSENTING OPINION with whom Justice Scalia joins.

By contrast, Justice Kennedy in authoring the majority opinion, went on and on, page after page, with irrelevant historical notations having nothing to do with the terms and conditions set forth in our Constitution being violated, as found in the debates of the 39th Congress which actually framed and helped to ratify the Fourteenth Amendment, and is falsely alleged to have been violated by a number of States not issuing marriage licenses to same-sex couples.

See: MAJORITY OPINION Obergefell v. Hodges

The majority’s opinion blatantly ignores the Tenth Amendment’s powers reserved to the States and likewise ignores the fact that under our Constitution, Article V is the only lawful way to require the States to issue marriage licenses to same-sex couples.

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JWK


The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)

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For those who are dedicated supporters and defenders of the miracle our forefathers created ___ the Constitution of the United States of America ___ the MAJORITY’S OPINION in Obergefell v. Hodges, handed down June 26, 2015, like a number of previous “precedent” setting opinions, will long be remember as another significant and major attack on the fundamental rules used to preserve and protect that Constitution.

Supreme Court Justice Clarence Thomas was absolutely correct when he emphatically stated a “. . . precedent should be 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.” SOURCE

With respect to fundamental rules used to determine the true and actual meaning of our Constitution, as it was understood by those who framed it and the States and people therein when ratifying it, the majority’s opinion in Obergefell v. Hodges casts such rules aside and substituted its own sexual oriented feels and predilections for the rule of law and reversed the Court of Appeals for the Sixth Circuit which appropriately upheld, on November 6, 2014, Kentucky’s ban on same-sex marriage

Nowhere in the majority opinion, Obergefell v. Hodges, is there a shred of evidence confirming that by the terms of the Fourteenth Amendment’s equal protection or due process clause, or the documented legislative intent under which the Fourteenth Amendment was agreed to by the States when ratifying the amendment, was Kentucky‘s decision to not issue same-sex marriage licenses in violation of the Fourteenth Amendment.

Justice Kennedy in authoring the opinion simply went on and on, page after page, with irrelevant platitudes and historical notations having nothing to do with the debates of the 39th Congress which actually framed and helped to ratify the Fourteenth Amendment in order to “. . . discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it." See, HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)

Unlike Israel’s “Basic Law” which states “There shall be no violation of rights under its Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required “, which in effect makes rights and limited powers granted meaningless, the Constitution of the United States contains no grant of such omnipotent authority to our federal government, and that includes an un-elected majority sitting on our Supreme Court.

In essence, a majority on our Supreme Court set itself up as members of an unelected, omnipotent, constitutional convention, and substituted their personal feelings and predilections as being within the terms and conditions under which the Fourteenth Amendment was agreed to, while Article V is the only lawful way to alter our Constitution, and it requires consent of the States and people therein as outlined therein.

Have three-fourths of the States and people therein agreed to cast aside the traditional meaning of marriage, which dates back 4,000 years, and forbid the States to issue marriage licenses based upon the applicant’s sex?

JWK


Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records ___ its framing and ratification debates which give context to its text ___ wish to remove the anchor and rudder of our constitutional system so they may then be free to apply the Humpty Dumpty theory of language to our Constitution and make it mean whatever they wish it to mean.

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Obergefell v. Hodges reversed the Court of Appeals for the Sixth Circuit which appropriately upheld, on November 6, 2014, Kentucky’s ban on same-sex marriage. Some of the glaring problems with the majority opinion in Obergefell are:

Some of the glaring problems with the majority opinion in Obergefell are:

• The opinion relies upon irrelevant platitudes and historical notations to arrive at its conclusions, rather than the debates of the 39th Congress which actually framed the Fourteenth Amendment to accomplish specific and limited objectives, which the majority opinion falsely asserts have been violated.

• While the majority opinion relies upon irrelevant platitudes and historical notations to arrive at its conclusion, it blatantly ignores the historical definition of marriage within Western culture, which dates back to the 6th and 9th centuries as being a union between one man and one woman. Hence, the majority opinion contradicts its own method used to arrive at its conclusion.

• The majority opinion knowingly flaunts and subjugates Article V of the Constitution requiring consent of the governed, which is the only lawful and democratic way, within the terms of our Constitution, to accommodate and acknowledge changing times.

• The majority’s opinion blatantly ignores and renders meaningless the Tenth Amendment's powers reserved to the States and people therein.

• The majority opinion blatantly assumed a legislative authority not granted by the terms and conditions set forth in the Constitution. In essence, a majority on our Supreme Court set itself up as members of an unelected, omnipotent, constitutional convention, and substituted their personal feelings and predilections as being within the terms and conditions under which the Fourteenth Amendment was agreed to.

• The proposed Equal Rights Amendment, which would have forbid the States to make distinctions in law based upon sex, was rejected in 1982 by an insufficient number of States approving the amendment.

A precedent setting case, as Justice Thomas correctly points out, “. . . 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 . . . ” which is exactly what the majority opinion Justices did when agreeing with Justice Kennedy who authored the majority opinion in Obergefell v. Hodges.

Some great news. Obergefell v. Hodges is currently being challenged in the U.S. District Court for the Western District of Texas by Judge Dianne Hensley ___ Hensley v. Steel, filed 12/19/2025.

Here is a link to the COMPLAINT challenging the majority opinion in Obergefell v. Hodges.

See page 17 “Claim No. 4: The Courts Should Overrule Obergefell And Declare That Homosexual Marriage Is Not A Constitutional Right”

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Judge Hensley’s COMPLAINT, with respect to the Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) decision, asserts Obergefell (2015) is incompatible with Dobbs (2022), in that homosexual marriage is a “fundamental right.”

73. The Supreme Court’s subsequent ruling in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), repudiates the “reasoned judgment” test for determining “fundamental rights” and prohibits judges from recognizing “fundamental rights” that are unmentioned in constitutional text unless those rights are “deeply rooted in this Nation’s history and tradition.” Id. at 231.

74. Dobbs did not purport to overrule Obergefell, but its rationale is incompatible with the idea that homosexual marriage is a “fundamental right.” The court-invented right to homosexual marriage—like the court-invented right to abortion—is not “deeply rooted in this Nation’s history and tradition,” so Obergefell had no constitutional justification for imposing same-sex marriage on all 50 states.

Judge Hensley is correct! Obergefell blatantly ignored the historical definition of marriage within Western culture, which dates back to the 6th and 9th centuries as being a union between one man and one woman. Hence, the majority opinion in Obergefell contradicts its own method [historical meanings] used to arrive at its conclusion.

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I didn’t know that a number of States have actually adopted resolutions condemning Obergefell v. Hodges as being at odds with our Constitution and are looking to have it overturned. See: Obergefell Ruling in Question as Lawmakers Push to Revisit Gay Marriage Rights

"Recent state-level efforts aim to challenge the 2015 Supreme Court decision legalizing same-sex marriage, fueled by Justice Thomas's 2022 call to revisit such rulings. Concerns arise over LGBTQ rights if Obergefell v. Hodges is overturned, as federal protections, like the Respect for Marriage Act, have limitations. Advocates emphasize vigilance and community action amidst fears of legal and societal regression."

Also see IDAHO’s HOUSE JOINT MEMORIAL NO.1

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To the best of my knowledge the Supreme Court has never revisited and reversed its decision in BRADWELL V. THE STATE, 83 U. S. 130 (1872)

Bradwell v. The State essentially confirmed a State has authority to discriminate and make distinctions based upon sex, and that refusing to issue a license based upon sex violates no provision of the Federal Constitution.

Seems to me if the Fourteenth Amendment [ratified in 1868] forbids discrimination in law based upon sex, as we are constantly led to believe ___ a recent example being Obergefell ___ how could the Supreme Court only four years after the adoption of the Fourteenth Amendment in Bradwell v. The State, 1872 conclude that Illinois, having discriminated and refused to grant to a woman a license to practice law in the courts of that state on the ground that females are not eligible under the laws of that state, violates no provision of the Federal Constitution?

And let us not forget that in 1920, years after the adoption of the Fourteenth Amendment and BRADWELL V. THE STATE, the Nineteenth Amendment is adopted forbidding sex discrimination with respect to the right of citizens of the United States to vote, being denied or abridged by the United States or by any State on account of sex.

Once again, the unanswered question presents itself. If the Fourteenth Amendment already forbid discrimination in law based upon sex, why was there a need for another amendment, the Nineteenth, forbidding discrimination in law based upon sex?

Could the real truth be, the majority opinion in Obergefell v. Hodges, asserting the Fourteenth Amendment requires the State of Kentucky to issue marriage licenses to same-sex couples is patently false, and simply substitutes the majority's personal predilections and feelings as the rule of law?
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From below, "Once again, the unanswered question presents itself. If the Fourteenth Amendment already forbid discrimination in law based upon sex, why was there a need for another amendment, the Nineteenth, forbidding discrimination in law based upon sex?"

This is a KEY question.

Originally Posted by GaiaGoddess

From below, "Once again, the unanswered question presents itself. If the Fourteenth Amendment already forbid discrimination in law based upon sex, why was there a need for another amendment, the Nineteenth, forbidding discrimination in law based upon sex?"

This is a KEY question.

Exactly, and it seems indisputable that the majority in Obergefell played fast and loose with truth and facts.


Let us look at the associated historical time line for the truth and facts.

On July 9th, 1868 the Fourteenth Amendment is adopted, the first Section reading as follows:

” persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Note that there is no language concerning any restriction based upon “sex”.

In 1870, two years later, the Fifteenth Amendment is passed prohibiting the right to vote to be denied based upon “race, color or previous condition of servitude”. Note once again there continues to be no restrictive referenced in our Constitution with respect to “sex”.

Fifty years later, on August 18th, 1920, the American People decide to provide restrictive language into our Constitution concerning “sex” by their adoption of the Nineteenth Amendment. But the amendment is narrowly worded and limits the protection against “sex” discriminations as follows:

”The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

At this very time there is an active movement in the United States to adopt an “Equal Rights Amendment” and it persists for decades. The proposed amendment is intentionally designed to prohibit discrimination based upon “sex” as follows:

”Section 1. Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.”

In the 1970s, Congress sets a seven year deadline for the ratification of the ERA which was later extended by three years to 1982. But despite efforts to secure ratification of the amendment, a sufficient number of States thoughtfully refuse to adopt the Equal Rights Amendment.

Some of the reasons for its rejection were, it would lead to women being drafted into the military, unisex bathrooms, and even legalization of homosexual marriages.


Is it not now self-evident that in Obergefell the majority substituted their personal beliefs and predictions as being the rule of law when asserting that the Fourteenth Amendment forbids the State of Kentucky to issue marriage licenses based upon the sex of applicants?

The fact is, Obergefell v. Hodges has a number of glaring faults which renders the opinion as being fatally flawed requiring its reversal.



• Lack of Constitutional Basis: the ruling is based upon irrelevant platitudes, historical notations and the majority’s personal predilections, rather than the debates of the 39th Congress which actually framed the Fourteenth Amendment to accomplish specific and limited objectives, which the majority opinion falsely asserts have been violated, while the supposed right to same-sex marriage has no clear basis in the text of the Constitution or its legislative intent.

• Contradicts History and Tradition: The majority opinion ignores centuries of history that defined marriage as a union between a man and a woman, while it conversely relies upon centuries of history to establish marriage is a fundamental right, thereby contradicting its own method used to arrive at its conclusion. Additionally, the majority opinion is in conflict with Dobbs v. Jackson Women’s Health Organization, which established a "history and tradition" test, stating that any right not explicitly mentioned in the Constitution must be deeply rooted in the nation's history and tradition to be protected under the Due Process Clause.

• Judicial Overreach and assuming a legislative function: The majority overstepped its judicial role and wrongfully assumed a legislative function by deciding and mandating a major social issue. In essence, the majority set itself up as members of an unelected, omnipotent, constitutional convention, and substituted its member’s personal feelings and predilections as being within the terms and conditions under which the Fourteenth Amendment was agreed to, while Article V is the only lawful way to alter our Constitution, and that requires consent of the States and people therein as outlined therein.

• Disregards reserved powers of States and people therein: The majority’s opinion blatantly rendered meaningless and subverted the Tenth Amendment's powers reserved to the States and people therein which, ". . . in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

What is the remedy? Our Supreme Court, to maintain its legitimacy, must rehear Obergefell, reverse the majority’s opinion and return the subject matter of marriage to the States where it properly belongs by the terms of our Constitution.

Keep in mind that prior to Obergefell, same-sex marriage was legal in 36 states plus Washington D.C. It’s time for our Supreme Court to correct the subjugation of our system of law found in, and wrongfully imposed by Obergefell.

From below (and still need to study all of what you've said):

"Keep in mind that prior to Obergefell, same-sex marriage was legal in 36 states plus Washington D.C."

The idea of same-sex "marriage" is weird since it doesn't appear in Nature.

You would think that basic Truth would prevail.