Justice Thomas’ Dissent

Finally, we come to Justice Thomas’ dissent in the marriage case (I’m going to ignore Alito’s because, frankly, who cares?). As is so often the case, Thomas writes a separate dissent that is only joined by one other justice (Scalia). Even Roberts and Alito didn’t join this one, presumably because it takes a far more radical position than they want to endorse.

He begins by railing against the idea of substantive due process. My old friend Tim Sandefur has dealt with such arguments so well in the past that I need not repeat them here. But there’s one passage in his opinion that simply leaves me gobsmacked. Get a load of this:

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration

of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of

inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied

governmental benefits certainly do not lose their dignity because the government denies them those benefits. The

government cannot bestow dignity, and it cannot take it away.

That was said. By a black man. I have no more words. My flabber is gasted.

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  • petemoulton

    An African-American man married to a Caucasian woman, no less. There’s un-self-awareness, and then there’s un-self-awareness, but Thomas may have just set a record with this idiocy.

  • Erik

    Holy cow, and Scalia wants to complain about mummeries and fortune cookies in *Kennedy’s* writings?

    Oh, you’re being sold in to slavery and beaten with chains? What are you complaining about? At least you still have my god’s given dignity. That should be enough for anyone!

  • Childermass

    Why would that particular black man care? He’s got his. He is financially very well off, nearly immune from being fired, and as a justice of the Supreme Court is one of the most powerful men in the most powerful nation on Earth. The state taking away his dignity is not in the cards. Indeed anyone taking away his dignity in any meaningful way is fairly unlikely.

  • D. C. Sessions

    I would appreciate some empirical demonstration of the “dignity cannot be taken away.”

    Perhaps we could subject some advocate of this position — Justice Thomas, for instance — to a month or so of “ehnanced interrogation” techniques including sleep deprivation, stress positions, and being confined in his own excrement. At the end of that time, let him show the world that, naked and befouled, his dignity is unimpaired as he is marched through the streets.

    Somehow I don’t see any takers to that offer.

  • gshelley

    Didn’t the declaration also say all men are created equal, so by that logic, the government cant’ do anything that takes away people’s life or liberty?

  • Larry

    So gays, who were previously denied the opportunity to be married in the same fashion as hetero couples and, thus, were denied access to some of the tangible benefits that the government bestows with marriage (visitation rights, inheritence, etc.) were otherwise still whole in Thomas’ view because they had this nebulous thing called dignity. Well, that and $3 will get you a coffee at Starbucks. I’m not real clear on why Thomas thought this was a strong argument against SSM (or for it, for that matter). Maybe he added it to add more words into his brief, thinking his pay was based on word count. Otherwise, it makes no sense.

  • http://artk.typepad.com ArtK

    I’m not sure I’d cite Tim Sandefur since he described Thomas’ opinion as the best reasoned one in the whole case. While I respect Mr. Sandefur for a lot of his work, I’m still scratching my head over his reasoning on this dissent. To me, the whole “dignity” thing poisons any other possible valid argument Thomas might have had.

    @Childermass

    You’re right, the state is not likely to take his dignity away. He’s managed to throw it away with this one, though.

  • Jeremy Shaffer

    D.C. Sessions at 4-

    I’ve come across more than a few people claiming recently that, when you get right down to it, slavery in the 19th century U.S. really wasn’t all that bad. In fact, many of the slaves actually liked it and didn’t want it to end. They would then conclude it might be a good thing if slavery was to be brought back; after all, it would help with the whole unemployment issue, which is a big problem among PoC so maybe they’d be up for it again.

    Of course, all of the people making such claims were white and were pretty dissembling- to the point of anger in some cases- about getting what I meant when I asked if they would be fine were they, or maybe their children, enslaved instead of volunteering others to such a fate.

  • zenlike

    As has already been touched upon over in one of the threads at PZ’s, Thomas concept of ‘dignity’ is the catholic one. In this catholic interpretation, someone dying horribly due to an incurable illness, slowly wasting away over a period of years is ‘dignity’, the same person choosing to end their life and stop the suffering is ‘non-dignity’. This concept of dignity is the opposite of what humanists, or indeed any rational human would understand by the same word. It is indeed this monstrous concept which was a large reason why I went from catholic to non-catholic (before becoming an atheist).

  • Hoosier X

    Clarence Thomas knows all about retaining your dignity despite adverse circumstances.

    He was the victim of a “high-tech lynching” way back when. Remember?

    The only lynching I know of that ended up with the victim becoming a Supreme Court justice!

    (So, not at all like a lynching.)

    Well, you have to admire Thomas for the way he retains his dignity despite being a sock puppet for a petty hateful turd like Scalia.

  • StevoR

    @ ^ zenlike : Yes indeed. There may be a certain dignity in choosing X too – but not in having X imposed on you against your will or denied you against your will too.

    @6. Larry : “Well, that and $3 will get you a coffee at Starbucks.”

    I’m pretty sure there are folks who would dispute that based on the definition of the word “coffee” here!

    (Personally I dunno, I never drink the stuff, waste of good beer money and I’m more partial to tea anyhow. Don’t think I’ve ever tried it – just going by what I hear /read.)

  • D. C. Sessions

    If I understand his argument, he’s essentially creating a standard (“dignity”) that doesn’t exist in the Constitution and then privileging it above the others so that as long as some State action doesn’t deny someone’s inalienable “dignity” it’s all good.

    And since “dignity” can’t be taken away by the State, there is nothing that the Constitution forbids the State to do.

    And he condemns the liberals for supporting a “big government?” Say what again?

  • theguy

    In my (personal) view, having inherent rights means that there’s a certain ethical standard by which people must be treated. This means things like the right to not be tortured, censored or falsely imprisoned, but as a liberal I also believe in rights like access to health care, and gay marriage.

    To say that these are rights means that everyone should have these rights. To say that these rights are inalienable, in my view, means that whether you should have these rights or not isn’t decided by government, religion or the majority, but by ethics and philosophy.

    If you define “dignity” as having inherent rights, then the government can’t take those rights away. That being said, the government is certainly capable of stonewalling people from fully realizing their rights, which is what Thomas and the Scalia wing are trying to do.

  • doublereed

    @12 D.C. Sessions

    No, he’s responding to the majority argument of a right to dignity. Disallowing same-sex marriage offends the dignity of same-sex couples forcing society and government to see them as lesser.

    His argument is essentially saying that people don’t have a right to dignity (because absolutely nothing can take it away), even though that’s long been held in courts of law AFAIK.

  • doublereed

    @10 Hoosier X

    Ed has pointed out several times that, if anything, Scalia follows Thomas’s lead, not the other way around. People assume otherwise just because Scalia loves to talk.

  • caseloweraz

    The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity. (Emphasis added.)

    So all those awards and medals, like the Purple Heart, the Silver Star, the Congressional Medal of Honor, the Presidential Medal of Freedom — they don’t work at all? No dignity is conferred to those who receive them?

    (Rhetorical questions)

  • Henrietta Swan

    If I’m reading his dissent correctly, he uses some fascinating mental gymnastics to square this particular dissent with Loving v Virginia.

    He states that Loving v Virginia was correctly decided ONLY because there was the threat of criminal penalty (1 year in jail, I believe) for the Loving family. Because the claimants here were not facing any criminal penalty, the precedent didn’t apply.

    So am I understanding him properly? If, in Loving v Virginia, the Loving family was denied a legal marriage but was not threatened with jail, Thomas would have decided for Virginia. Astounding.

  • http://festeringscabofrealityblogspot.com fifthdentist

    @8,

    If “Bible-based” marriage is good enough for ‘Murka, then Bible-based slavery should as well. Right?

    Slavery is never condemned in the Bible. I’d bet there are three or four Bible verses supporting the institution of slavery for every one condemning teh ghey.

    Your slavery idea has lots of merits in today’s America. Poor people could sell their kids into slavery to pay off medical bills and other debts, as the Bible allows for the selling of sons and daughters. It would give our consumer culture a big boost in spending power. No credit? No problem. Just point to the little missus and the little 8-month-old fleshy bit of collateral growing inside her and drive off today in that new car. And while you’re at it, stop by Wal-Mart and pick up that 1,000-inch flat screen TV that will make your friends jealous. You’re credit’s A-OK.

    And, it would give white people an incentive to have lots of babies for Jesus — and the Kochs — and help prevent those nasty brown people from outbreeding them. Any excess babies can be shuffled into our “Spartan Training Centers,” where from the age of 6 they will be taught to fight for our freedoms once they turn 18.

    And, finally, what silly woman who had been impregnated by a relative would want to abort her little bundle of joy knowing that it was worth its weight in gold? So no more abortions.

    No, I think you’ve hit on something here. This is today’s American conservative Nirvana.*. This is the promised land. This is the Shining City on the Hill.

    “Mein Fuhrer, I can walk!”

    Well, Heaven, because Nirvana sounds to heathen-ish.

  • http://artk.typepad.com ArtK

    Thomas is playing with the definition of “unalienable.” It’s quite clear, at least to me, that Jefferson meant “should not be abridged” while Thomas is acting as if it means “cannot be abridged.” In the DoI, Jefferson is setting up the argument that the King had abridged those rights and that was the justification for rebellion. If you use the “cannot” definition, then the whole DoI falls apart. “The King can’t take away those rights, so everything’s hunky-dory” just doesn’t work.

    I don’t know if Thomas is really that stupid, or just being seriously disingenuous in service to his ideology. The result is the same either way.

  • bmiller

    Pure sophistry. Government and society can treat one however it wants because one is inherently dignified???? Wow. Just wow. The police can beat one to a pulp but it doesn;t matter because GAWD had given one dignity!????

    Versus a more appropriate response: Government and society should respect your rights and freedoms because one has inherent dignity.

  • sigurd jorsalfar

    By the same logic, the government cannot bestow life, and it cannot take it away.

  • http://motherwell.livejournal.com/ Raging Bee

    The corollary of that principle is that human dignity cannot be taken away by the government.

    Actually, a) that’s not really a “corollary,” since it does not logically follow from the principle; and b) it’s demonstrably false. God-given dignity, like God-given rights, can indeed be taken away, by individuals, state and non-state entities; and therefore it is the duty of governments to uphold dignity by preventing people from taking it away from other people. I found that bit filed under “D” for “Duh!” This is a fundamental fact of political life, and one of the most oft-stated reasons for the very existence of governments, democratic and tyrannical alike. Thomas’s refusal to accept this fact raises serious questions, not only about his intelligence, but about his respect for reality.

  • Donnie

    @1 petemoulton says

    An African-American man married to a Caucasian woman, no less. There’s un-self-awareness, and then there’s un-self-awareness, but Thomas may have just set a record with this idiocy.

    How could one of the justices NOT have taken a subtle / unsubtle pot shot at Justice Thomas on this and his backing of the anti-gay-rights and the ruling of LOVING. I know that Loving was cited, but I would have not held back. Do all the Justices read the Affirm and Dissent briefs before final completion? I assume that only the Justices that Dissent read from the other Dissenting Justices and vice-versa. I would have certainly pointed out the hypocrisy of Justice Thomas’ stance compared to Loving. Of course, saying this as a non-justice, non-lawyer, and non-political player.

  • Sastra

    Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of

    inherent worth. That vision is the foundation upon which this Nation was built.

    My take is I think people are making this more complicated than it is. Thomas isn’t really saying anything about slavery not being so bad or government getting a free pass of some kind. He’s just harping on the same old tired theocratic point that our rights and our worth and everything comes from GOD. The CREATOR. So we have to look to HIM for the final word on what’s right and wrong which is written not just in the Bible, but in Nature too.

    Slavery was wrong because it went against God creating all men equal. But God created marriage for men and women to have babies.

    Full stop. No deeper than that.

  • LightningRose

    This fuckwit, besides being one of the very best arguments against affirmative action (which I support) I’ve ever seen, lost all dignity the first time he invited Anita Hill home to watch Long Dong Silver videos.

  • http://motherwell.livejournal.com/ Raging Bee

    Donnie: the kind of sniping you mention would probably have degraded just about all of the Justices and their work. They try to be all “collegial” and shit (bullying buffoons like Scalia notwithstanding), and I’m pretty sure they already have enough such sniping to deal with, and didn’t want their work to be further degraded by it.

  • tbp1

    I’ve always found it amusing that staunchly Catholic, traditional marriage loving Clarence Thomas officiated at Rush Limbaugh’s third marriage. It was his bride’s fourth marriage. They met over the internet while she was still married. They subsequently divorced.

  • cptdoom

    He states that Loving v Virginia was correctly decided ONLY because there was the threat of criminal penalty (1 year in jail, I believe) for the Loving family. Because the claimants here were not facing any criminal penalty, the precedent didn’t apply.

    So am I understanding him properly? If, in Loving v Virginia, the Loving family was denied a legal marriage but was not threatened with jail, Thomas would have decided for Virginia. Astounding.

    Even more astounding is that Thomas sided with the minority in Lawrence v. Texas, claiming it is Constitutional for states to arrest lesbian and gay people for the crime of having a personal life. He claimed he thought sodomy laws were “silly” and would vote to overturn them if a legislature, but still thought they were A OK vis-a-vis the Constitution. So it’s OK for the state to lock people up for being gay, but because the states aren’t currently doing so, there are no downsides to anti-same-sex marriage laws. Of course, if Bowers were still in force, Thomas would probably argue that because the criminal act was the sexual one, not the marital one, Loving still wouldn’t apply.

  • abb3w

    This seemed one of the weakest parts of the Thomas dissent. While he seemed to have largely avoided arguments that could have been used against Virginia v Loving, he still fell in the hole here.

  • colnago80

    Re tbp1 @ #27

    Thomas was also divorced from wife number 1 and is currently married to his trophy wife, in line with numerous Rethuglicans.

  • John Pieret

    I’m going to ignore Alito’s because, frankly, who cares?

    For those who didn’t click through to Judge Posner’s article in Ed’s last post, the good judge rips Alito another one.

  • http://drx.typepad.com Dr X

    I was a bit disappointed that he didn’t mention Long Dong Silver anywhere in his dissent.

  • marcus

    Jeremy Shaffer @ 8

    “Of course, all of the people making such claims were white and were pretty dissembling- to the point of anger in some cases- about getting what I meant when I asked if they would be fine were they, or maybe their children, enslaved instead of volunteering others to such a fate.

    As a truly great man once said:

    “There is not a man beneath the canopy of heaven that does not know that slavery is wrong for him.” Frederick Douglass

    We should all read The Meaning of July Fourth for the Negro this next week. In my opinion it is one of the most powerful speeches ever writtine.

  • marcus

    “or written” for that matter.

  • Nihilismus

    @7 ArtK

    I’m not sure I’d cite Tim Sandefur since he described Thomas’ opinion as the best reasoned one in the whole case. While I respect Mr. Sandefur for a lot of his work, I’m still scratching my head over his reasoning on this dissent. To me, the whole “dignity” thing poisons any other possible valid argument Thomas might have had.

    I assume you are talking about what Tim Sandefur said here: http://sandefur.typepad.com/freespace/2015/06/same-sex-marriage-case-poor-reasoning-all-around.html

    I agree with his analysis, as I essentially made it myself in an earlier “dissent” thread of Ed’s (I think the Robert’s one). You say that the dignity section in Thomas’ opinion poisons any other valid argument he may have had, but that itself is an illogical argument. Someone can have logical arguments about one topic mixed in with illogical arguments on another, which describes Thomas’ opinion in this case. Plus, depending on how the other opinions were written, he may well have had the best reasoned one. I agree with the result of the majority’s opinion, but disagree that a due process analysis makes more sense than an equal protection analysis.

    The majority basically argues that marriage is a fundamental right without elaborating on whether than means government marriage benefits are a fundamental right. What if the government tried to get out of the marriage business all together (i.e., no more civil marriages or tax credits, just let people have religious and secular ceremonies with no legal meaning)? Would that violate everyone’s fundamental right to marry?

    Thomas addresses why the due process clause is not really at issue here. He mentions that with many anti-miscegenation laws, it was a crime to attempt interracial marriage, even if done purely through a religious ceremony. Of course, Loving made an equal protection argument as well. Although Thomas doesn’t believe in substantive due process at all, even someone who does should have a hard time explaining why government recognition of marriage for anyone is a fundamental right. As Sandefur points out, Thomas then should have analyzed the equal protection issue, but didn’t — but neither did the majority in any useful way.

    Thomas’ rant about dignity was like when someone tries to attack an argument by playing semantic games with their opponent’s word choice without actually addressing the main point. It’s not that he doesn’t think there is no such thing as dignity, or that people can’t be demeaned and have their rights violated — it’s just that he spends an inordinate amount of time arguing that “dignity” is the wrong word to use when talking about something that the government can give or take away. We might argue that the definition of dignity differs from what Thomas thinks, but that’s really all that is going on with his rant — he’s criticizing a particular word used by Kennedy without addressing the underlying essence of what Kennedy was trying to say.

    But even Kennedy is trying too hard to explain the whole dignity given/taken away thing as matter of due process with regard to government recognition of marriage and the provision of government benefits. Dignity, as Kennedy is using it, can actually apply in due process cases — just not this one. Dignity does however also apply in equal protection cases, which just goes back to how the majority opinion really could have been much better argued.

    As for the other dissents, they are worse than Thomas’. Scalia’s opinion just consists of incredulous remarks and blatantly ignoring the 9th Amendment. Robert’s opinion is basically an arbitrary definition about what the “core” of marriage is (just saying people joining together is too broad, saying they have to be the same race is too narrow) that is no more sophisticated than what Dukedog has given us (in fact, it is the argument Dukedog gives about why laws against interracial marriage were wrong but laws against same-sex marriage are right, minus a rant about Dixiecrats), and then saying that non-core aspects aren’t fundamental and should then be decided through the political process. And Alito’s opinion starts with summary of the majority’s equal protection argument (what little there is) that makes the argument even clearer than what the majority said, and then he goes and tried to dismiss it but winds up using a due process argument instead.

    So yeah, it’s sad, but the best reasoned section in the whole case is found in part of Thomas’ opinion. For a well-argued equal protection analysis, I recommend Judge Walker’s trial opinion in Perry v. Schwarzenegger. He does do a due process analysis at one point, in the formal way (i.e., strict scrutiny, compelling interest, etc.). But he also then does an equal protection analysis. He discusses the issue about whether same-sex marriage bans are classifications based on orientation, gender, or both. He explains why given the history of such discrimination against gay people, strict scrutiny should apply. He then explains why, even using rational basis review, a same-sex marriage ban is not rationally-related to any legitimate government interest, going through all the tired old ant-equality arguments.

  • John Pieret

    Nihilismus:

    I also thought Judge Posner’s explanation of the equal protection argument (and demolition of the supposedly “rational” reasons for the bans) was particularly clear and he waived away the substantive due process as unnecessary. It didn’t hurt that he included this:

    At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D09-04/C:14-2526:J:Posner:aut:T:fnOp:N:1412339:S:0

    When you are 76, the bone in your head that stops you from saying irreverent things in supposedly “serious” forums has, for some people, seriously eroded.

  • Freeman

    @marcus #33:

    We should all read The Meaning of July Fourth for the Negro this next week. In my opinion it is one of the most powerful speeches ever written.

    Thank you! That was an amazing read.