Clarence Thomas's "Right to Privacy"

Aloha, it's a "soft" morning here in the rain forest (which means drizzling like bejeesus). The avocado needs compost, the chickens are off chasing lizards, the gate is open and I'm ready for a little comparison here on the topic of the right to privacy in US constitutional law.

You may remember that a few days ago I wrote about the Roe v. Wade case, reminding us that the "right to privacy" women were acknowledged to possess in Roe derived, according to the Court in that faraway time (1973), from the constitutional right to liberty.

This liberty right is at the heart of the US Constitution, named along with the right to life and the pursuit of happiness as an inalienable natural right in our Declaration of Independence.

My conclusion, in the next article I wrote, was that maybe US women should just bust out of the legal box we've been put into by our opponents. Instead of putzing around trying to resurrect the moribund ERA, or fighting for wee exceptions to the flood of court decisions negatively affecting Title VII and Title IX of the Civil Rights Act in this country, or trying to insert women into the hostile Equality Act, we could propose a brand-new Women's Liberties Act confirming that our right to liberty encompasses not just equality under the law, but also a specific right to physical security and a specific right to privacy.

A Women's Liberties Act would, I argued, meet the Religious Right's alleged First Amendment religious freedom & expression rights to discriminate head-on. Without it, women have no wide avenue to block the Religious Right from freeing and expressing itself right into oppressing women up down and sideways.

This is precisely why the RR hates Roe v Wade for so much more than its abortion ruling. They hate it because if women have a right to privacy, they have a right to refuse male control of reproduction generally. And I claim that culture is constructed by males to 1) regulate male intrasexual competition by constructing male hierarchies and regulation and reward systems, and 2) maximize and regulate reproduction and sexual access to the class of women. That's how fundamental I think it is to the RR to keep women from successfully firming up this right to privacy the Roe Court confirmed we have.

Therefore, we have had Justice Thomas bellowing for the past 29 years that Roe must go. Here's what the Justice said just 10 days ago in his dissent in the June Medical Services v Russo case:

"As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone. But today's decision is wrong for a far simpler reason: The Constitution does not constrain the States' ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy." https://www.kten.com/…/justice-clarence-thomas-says-roe-dec…

So now let me make my little comparison: when it comes to women's rights, according to Thomas, a wayward earlier Supreme Court invented the right to privacy out of nowhere. It is amorphous, unwritten. Illegitimate, and does not have a shred of Constitutional support! Strike it down!

But back in 1991, Thomas wanted to get confirmed as a Justice in spite of Anita Hill's testimony. "Throughout his testimony, Thomas defended his right to privacy. He made it clear that he was not going to put his personal life on display for public consumption, permit the committee (or anyone else) to probe his private life, or describe discussions that he may have had with others about his private life. The [all-male] committee accepted his right to do so." https://en.wikipedia.org/wiki/Clarence_Thomas

And only yesterday, Justice Thomas's Dissent in Trump v Mazars came out, arguing that the President's right to privacy trumps the power of Congress to subpoena his tax returns: "Given that Congress has no exact precursor in England or colonial America, founding-era congressional practice is especially informative about the scope of implied legislative powers. Thus, it is highly probative that no founding-era Congress issued a subpoena for private, nonofficial documents.” https://www.law.com/…/key-quotes-what-the-justices-said-ab…/

Let's also look at this: the Religious Right claims that free exercise of religion requires governmental "noninterference" in a church's practices, such as performing animal sacrifice, using psychedelics, or worshiping Satan in a horned headdress while incarcerated. At the same time, religious employers' interference with women's desire to control their fertility is fine, according to Thomas and the RR lobby. Letting women control their fertility would conflict with the obligation of government to ensure religious employers aren't interfered with. Can't have that.

The classic definition of the privacy right in US law is "the right to be left alone". It seems to me that whatever you call this "noninterference", it is synonymous with the de facto assertion of an affirmative right to privacy -- except in the case of women as a class.

Is religious freedom to discriminate just a "negative" right? Is it really just about leaving discriminatory religious employers alone?

Or is all this "religious freedom" talk just a whole lot of hypocritical legal verbiage justifying religious employers harming the public, claiming their right to be left alone to discriminate is legitimate, but women have no legitimate right to be free of the discrimination?

Turning back to Justice Thomas: delve into his own personal life in a congressional hearing, no way; comply with a Congressional subpoena for the president's "private" tax records, not happening; tell religious employers they can't discriminate, ixnay. Privacy!

But deny women insurance coverage for contraception otherwise available because they must be "compelled to reproduce", as John Stuart Mill put it? You betcha.

And that's my little comparison regarding the privacy right under male domination.

Clarence Thomas (born June 23, 1948) is an American judge who serves as an Associate Justice of the Supreme Court of the United States. Following the retirement of Anthony Kennedy, Thomas became the most senior member of the Supreme Court. Thomas succeeded Thurgood Marshall and is the second African...