Conservative Supreme Court Justice Clarence Thomas is ill and is missing court proceedings Monday as the body opens its fall term, raising questions as to whether he’ll be present for oral arguments in LGBTQ rights cases Tuesday.
Thomas is “indisposed” but will still be involved in deciding the cases the court is hearing, Chief Justice John Roberts said from the bench as the court began its session today, Reuters reports. He did not offer any details about Thomas’s illness.
The court Tuesday will hear cases on the question of whether Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also bans discrimination based on sexual orientation and gender identity. The cases involve two men who say they were fired for being gay and a woman who was fired for being transgender.
Thomas, the court’s longest-serving justice, has been a reliable vote against LGBTQ rights. He dissented from its pro-LGBTQ rulings in 1996’s Romer v. Evans, which struck down an antigay state constitutional amendment in Colorado; 2013’s Windsor v. U.S., which struck down the main part of the Defense of Marriage Act, and Hollingsworth v. Perry, which let stand a lower court ruling invalidating California’s Proposition 8, an anti-marriage equality ballot measure; and 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. In his dissent in Obergefell, he wrote, “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement” — marriage being that “entitlement.”
He joined in the court’s 2018 decision vacating the Colorado Civil Rights Commission’s finding that a baker illegally discriminated against a gay couple by refusing to create a wedding cake for them. However, he wanted the decision to go further and expressed concern about whether marriage equality could be used to stamp out freedom of speech and religion.
The court was hearing three cases Monday, including one on whether states can disallow the insanity defense, according to Reuters.
This story is developing. Check back for updates.