Is Clarence Thomas being hypocritical on gay marriage?

Some say that silence speaks volumes. And in the case of Justice Clarence Thomas, that cliché just might be more applicable than ever this week as the SCOTUS considers the meaning of marriage equality in the 21st century.

In his usual fashion, Thomas said little or nothing this week in the Supreme Court proceedings. He literally is off the record on marriage equality and the constitutional validity of the Defense of Marriage Act.

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Generally, Justice Thomas’ silence has been interpreted as his tacit complicity in Justice Antonin Scalia’s more regularly vocalized conservative opinions.  But in this historical moment where America’s referendum on marriage equality centers on the LGBTQ communities, an inherent historical irony regarding race and marriage equality is apparent in (anticipation of) Justice Thomas’ decision/vote against marriage equality for the LGBTQ communities.

Clarence and ‘Ginni’

Justice Thomas is married to Virginia Lamp Thomas, a conservative lobbyist who was in the news regularly for her work with Liberty Central and (later) Liberty Consulting, two entities that worked hard to block and overturn the Affordable Health Care Act.

Some called for Justice Thomas’ resignation based on the apparent conflict of interest between his capacity to rule objectively on the ACA and the fact that his life partner was working so hard to block it and then overturn it.

No such resignation came; but for all of Virginia Thomas’ work with Liberty, we can (and should) now wonder if the Thomas’ discuss or debate marriage equality in this particular moment.

We can and should wonder if the Thomas’ identify the historical context for this particular moment as one that directly affects them – life partners with different racial backgrounds who, as short a time ago as the 1960s, may not have been able to marry if they had lived in the state after which Mrs. Thomas is named.

Loving v. Virginia

Maybe there is a natural flaw in my thinking here.  Justice Thomas now has a vote that will impact the lives and partnerships of hundreds of thousands of Americans who want to marry whomever they love.  He and Virginia must know about the landmark Supreme Court case – Loving Vs. Virginia.

Mildred and Richard Loving (a black woman and a white man) were sentenced to a year in prison for violating anti-miscegenation laws in the 1960s.

Maybe we all think that the way toward progressive action or endorsement from conservative politicians comes via personal experience – a family member who is gay or lesbian for example.  The fact that the Thomas’ marriage required progressive Supreme Court action must in some way inform their sense of this moment.

theGrio slideshow: Our favorite Loving Day celebrity couples

Maybe, a’la Sen. Rob Portman, this moment of irony will signal Justice Thomas’ capacity to be judicious sans ideological inclination.  Maybe his silence means thoughtful reflection here as opposed to tacit conservative groupthink.  And like I said, maybe my thinking is flawed.

In 1967 the Supreme Court voted unanimously that Virginia’s anti-miscegenation law and others of its ilk were unconstitutional.  Imagine if this current court voted unanimously to overturn DOMA; or if this court voted unanimously to federalize marriage equality.  Unanimous decisions are rare but they send powerful signals – in this case the signal would be that marriage equality is a liberty that should be afforded to all Americans.

James Braxton Peterson is the Director of Africana Studies and Associate Professor of English at Lehigh University. He is also the founder of Hip Hop Scholars LLC, an association of hip-hop generation scholars dedicated to researching and developing the cultural and educational potential of hip-hop, urban and youth cultures. You can follow him on Twitter @DrJamesPeterson