Third Party & Independents Archives

Justice Thomas and His Dissent

Justice Thomas’ dissent in Obergefell v. Hodges has drawn a storm of criticism from predictable quarters and a few admiring opinions as well. His was the only dissent to deal with inter-racial marriage citing Loving v. Virginia from 1967. The key question for Justice Thomas revolves around the founding fathers’ conception of liberty as well as Thomas’ own strong views on dignity. For him, the right to due process involves an infringement of liberty as meant in the Declaration of Independence and it’s famous words, not the right to government benefits. In his words,

By straying from the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority."

Essentially, Justice Thomas does not see liberty - as meant by the framers of the Constitution - as including the liberty to be married. He delves back into the Magna Carta and John Locke to support his view of liberty, as well as individual states' right to continue to define marriage in the traditional, heterosexual way. In Loving v. Virginia Chief Justice Earl Warren wrote:

Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

But what is, or was, at stake is the definition of marriage itself. While Loving v. Virginia is about discrimination based on race denying entrance into an institution whose shape and form were an agreed on matter, this is no longer the case. Deconstructing the nuclear family has been ongoing for decades now. It was inevitable that the unbending and breaking apart of traditional views of marriage would reach the Supreme Court. And Justice Thomas' view that innate natural liberty is not infringed on by the actions of the State, no matter how repulsive they may be, is one he has held for a long time and one which he openly proclaimed almost 25 years ago in his nomination hearings, as he talked about his own personal history and that of his family. Interestingly enough, this view of innate human dignity could be used in decisions that run against his own view of the State and its role in our lives. Rather than bestowing dignity, the equal marriage decision could be seen as recognizing that very dignity. In other words, a pension and other financial marriage benefits will be seen as ribbons on the chest of the former victims, and not as nice government handouts that they too deserve. How convenient that would be.

Posted by AllardK at July 8, 2015 9:24 PM
Comment #396498
an institution whose shape and form were an agreed on matter

It seems that there was quite a bit of disagreement regarding the shape and form of marriage before Loving v. Virginia. At the time, marriage was defined one way in DC and a different way in Virginia, so it seems there was quite a bit of disagreement.

Until Kirchberg v. Feenstra was decided in the early 1980s there was quite a bit of disagreement regarding the definition of marriage as well. It seems like some jurisdictions thought one partner in a marriage should be given ownership and control of all marital property with the other spouse having a subordinate role. I’m glad that we redefined marriage into a more equitable institution at that time.

Posted by: Warren Porter at July 10, 2015 10:30 PM
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