Justice Clarence Thomas was among the four justices who dissented Friday against granting same-sex couples the right to marry, warning that the “decision will have inestimable consequences for our Constitution and our society.”
Thomas’ dissent focused on the idea of negative rights, “As one later commentator observed, ‘[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbitrary government power,'” writes Justice Thomas in dissent.
Thomas connects this to disprove the notion that same-sex couples have a right to a government entitlement, writing, “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.”
In his majority opinion, Justice Anthony Kennedy mentioned the word “dignity” nine times.
Thomas disagrees with this view that same-sex couples are denied dignity when they don’t have the right to marry, arguing, “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.”
The dissent ends with Thomas worrying about the effects this majority opinion presents: “In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society .I respectfully dissent.”