Clarence Thomas’s Dissent Is Worse Than Scalia’s

Jim Burroway

June 26th, 2015

In his own quieter way, Justice Clarence Thomas out-scaliad Scalia. Thomas argued that gay couples didn’t have it so bad:

(p9): Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.

Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have beenable to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religiousceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.

And even if they had been incarcerated, so what?

(p17): The corollary of that principle (of human dignity) is that human dignitycannot 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 dignitybecause the government confined them. And those denied governmental benefits certainly do not lose their dignitybecause the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

He also predicts “ruinous consequences for religious liberty”:

(p14): Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.

(p16): Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriageto be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.


June 26th, 2015

So, how would this Bozo have ruled in Loving? Odd, as he is someone who benefited from that ruling, who wants to pull up the ladder after himself. An “I got mine, eff you” style conservative, basically.


June 26th, 2015

The second quote isn’t an argument that slavery isn’t so bad, but an argument for a different definition of “dignity” as the inherent humanity that governments have no right to infringe on. It’s a common definition, but words can have more than one meaning, including “dignity.”

Mark F.

June 26th, 2015

Well, at least he said sodomy laws were “silly” at one time and he said he would have voted against them. (Grasping at straws here). I have no idea what the “grave” consequences to religious liberty he envisions are other than various silly figments of NOM’s imagination.

Mark F.

June 26th, 2015

@Marcus Right, let’s not attribute things to Mr. Thomas he doesn’t believe.

Timothy Kincaid

June 26th, 2015

No, though I have no respect for Clarence Thomas, I agree with Marcus’ reading of his comments.

Thomas was not saying that gays (or slaves) don’t have it so bad (in that section) but rather that dignity is not something that government can bestow or take away. It is, as Marcus said, a different meaning of the word “dignity”.

As Whitney said,

No matter what they take from me
They can’t take away my dignity

Priya Lynn

June 26th, 2015

Wow! He’s basically saying that if gays aren’t incarcerated or restrained they don’t have anything to complain about!

Dave H

June 26th, 2015

Clarence Thomas is a mental midget. Setting aside the hypocrisy that the government would have denied him the right to be married to the woman he loves in some states less than 50 years ago, he seems to imply that it’s okay for the government to deny equal protection to people as long as they still have their dignity and are not imprisoned.

“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.” – But does that make it right?

“Those held in internment camps did not lose their dignity because the government confined them.” – But does that make it right?

“And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.” – But does that make it right?

Oh, well, thankfully five justices believed that it’s not right.

Ben M

June 26th, 2015

It’s funny. They act like this is shutting down the debate on “the religious liberty implications” of the issue… which is really a separate debate from equal protection.


June 29th, 2015

Even suggesting that prisoners, slaves, and internees didn’t lose their abstract “dignity” while being lashed, brutalized, raped, and penned in the desert is just deplorable and Thomas should resign in disgrace for even having penned those words. Really, this cannot be excused. This is a Supreme Court Justice writing those words.

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