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.