Scalia and Thomas Dissents – What about Dignity? Part 3 of 3

In this final installment of my examination of the U.S. Supreme Court decision regarding same sex marriage in Obergefell vs. Hodges I examine the dissents of Justice Thomas and Justice Scalia.

Justice Scalia concurs with the dissent of Justice Roberts, but felt that it was necessary for him to write separately “to call attention to this Court’s threat to American democracy.”

Justice Scalia is quite famous for his scorching and snarky dissents in which he often resorts to ridicule of the other justices and their reasoning. In this dissent he doesn’t disappoint us in the least.   His opening is similar to Justice Roberts’ dissent in that he tries to create distance between his “personal feelings” regarding same-sex marriage and his opposition to finding a right to marriage for same sex couples. Justice Scalia writes:

“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes…it is not of special importance to me what the law says about marriage.”

In other words, like Justice Roberts, he’s trying to insulate himself from being judged homophobic by history. Having assured everyone that he doesn’t hate gay people, Justice Scalia then becomes quite melodramatic in his dissent. He basically accuses his fellow justices of destroying American democracy and taking over the other branches of government.

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

In classic Scalia fashion he accuses his fellow justices of “robbing the people of the freedom to govern themselves”. His argument throughout his dissent is really two-fold: 1.) This is a political question with no civil right involved.  2.) Marriage is a matter for the States and does not involve a constitutionally protected liberty interest.

It is interesting to note that although Justice Scalia criticizes the majority for failing to present a more developed legal argument, his dissent contains only the most minimal citation to judicial precedent. He repeatedly returns to the fact that only nine Supreme Court justices get to decide the case. However, he doesn’t acknowledge the dozens of District Court and Appellate Judges who, during the decisions giving rise to the present case, repeatedly reached the same outcome as the majority in this case. Indeed, only a small number of Judges have found that same sex marriage is not a Constitutionally protected right.

One very interesting portion of his argument arises during his criticism of his colleagues and the institution in which they serve.  Justice Scalia brings up an interesting, and I think important, observation regarding the lack of diversity in today’s Supreme Court.  “The Court,” he writes:

“consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

Actually, Justice Scalia is somewhat misleading in this statement.  His colleague and friend, Justice Ginsberg is a graduate of Columbia Law School, although she did study at Harvard before transferring to Columbia.  In many ways, this is a somewhat odd attack on what many feel is the most diverse Court in our history. Consider that 3 out of the 4 women who have ever served on the Court are currently serving. There is a Black male justice, of which there has only been one other. As far as we know, there are no homosexual Justices (Although it does appear that the only person nominated from my hometown of Tallahassee, George Harold Carswell, may  be the only non-heterosexual ever nominated). We have the first and only Hispanic Justice. He is correct that the Court lacks religious diversity. All current justices are either Catholic or Jewish, although historically 91 of the 112 Justices who have served on the Court come from a Protestant background. The average age of our current justices is approximately 70 years old. The lack of diversity in legal education is also concerning.

This commentary on diversity becomes more intriguing because later in the dissent Justice Scalia cites to the wisdom of a group of historic Judges who are hardly a diverse group at all:

“Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly”

Judge Race Religion
Thomas Cooley White Protestant
John Marshall Harlan White Protestant
Oliver Wendell Holmes, Jr. White Unitarian
Learned Hand White Protestant turned agnostic
Louis Brandeis White Jewish
William Howard Taft White Unitarian
Benjamin Cardozo White Jewish
Hugo Black White Protestant
Felix Frankfurther White Jewish
Robert Jackson White Protestant
Henry Friendly White Unknown

In many ways that’s the irony of Justice Scalia’s dissent. He utilizes diversity as a weapon to criticize, but he’s not at all bothered by the lack of historic diversity in our legal system to whose precedents he believes we should rigidly adhere. He doesn’t seem to see diversity as something that is protected by the Constitution. Yet there is an uncomfortable truth to Justice Scalia’s argument that the Constitution doesn’t create rights to promote fairness and justice for a diverse society. Our founding fathers and ancestors did not see justice and fairness in ways that we do in modern times. Consider for instance that State laws prohibiting contraception for married couples were lawful until 1965. It wasn’t until 1981 that we got a woman on the US Supreme Court. Our nation didn’t even prohibit segregated schools until 1954. As recently as 1986 the Supreme Court upheld laws criminalizing gay sex. I can’t help but wonder if Justice Scalia thinks we should be bound to the past until such time as the electoral process provides an opportunity to vote for change?

Justice Scalia’s dissent argues this limitation of Constitutional protection by claiming that the Court should refrain from looking to the spirit, the intent, and the promise of the Constitution. The focus should remain only on the text. Justices should not read into the text any rights that are not explicitly stated. He believes that it is through constitutional amendment and not judicial interpretation based upon experience that change should occur. While I do not think this perspective is without merit, I don’t believe that for many oppressed and minority groups his perspective offers a realistic hope of justice and freedom from oppression by the majority group. Other than women’s suffrage and abolishing slavery, our nation has never once amended the Constitution to create a new right or to offer any group protection from any form of oppression.

Lastly, to conclude this blog post, we turn to the dissent of Justice Thomas who begins his dissent by rejecting the majority’s concept of liberty. He writes:

“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”

Justice Thomas utilizes a definition of liberty that was written in 1769 in an analysis of the laws of England, the very nation we broke away from in pursuit of freedom:

“the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”

He then conducts an analysis of liberty, as it was understood under the British Magna Carta. His reasoning for doing this is his belief that this was the understanding of liberty possessed by the framers of the Constitution. He spends a great deal of time in his exploration of “liberty” and seems willing to expand it to include freedom from government action. However, he claims that even with this expanded definition he still rejects the right of same sex marriage because he sees the right of marriage, along with the governmental benefits, to be about an entitlement to governmental benefits.

Justice Thomas points out that the petitioners are free to have whatever form of religious marriage they wish, but that in his view the case is about their seeking governmental recognition of their marriage and the governmental benefits that flow from that recognition. These may be valid points, but Justice Thomas doesn’t in any way address, other than by virtue of tradition, why the government can restrict its recognition of marriage to only one man and one woman. I’m left wondering, under Justice Thomas’ perspective, when can the government create benefits that are entitled to some people and not others? Could we create a benefit that is arbitrarily for men only, for people of color only, only for Catholics, etc.? If my understanding of Justice Thomas is correct, then he believes such would be allowed.

The final issue that comes up in Justice Thomas’ dissent is without a doubt the most bizarre piece of judicial writing that I have ever read. Honestly, I was shocked when I read it and it still seems like something you’d read in the Onion rather than a US Supreme Court opinion.

Justice Thomas begins discussing “dignity” and states that the US Constitution does not protect it. He claims that because dignity is innate to all human beings it cannot be impacted, positively or negatively by governmental action. He writes:

“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.”

I’m at a complete loss as to what to say about this other than it’s got to be one of the most ridiculous and callous statements ever written by a Supreme Court Justice. In my opinion, the right to vote, due process, freedom of speech, and protection against unlawful searches and seizures are all rooted in a fundamental respect for the dignity of human beings. To view our Constitution as providing nothing more than a framework for the function of government to me is to strip it of articulation of our values. This ultimately denigrates the very nature of the document and the nation that looks to it for direction. I’m simply appalled.

In closing, this decision and the dissents, apart from their important impact upon American life, reflect many of the challenges and conflicting perspectives we face as our nation moves into the 21st century. In some ways, and it’s strange for me to admit this, Justice Scalia may have some valid points when he argues that rather than looking to our Courts to create new rights, we should be amending the Constitution. Consider that ours is the oldest Constitution is use in the world today and we’ve rarely amended it. With the exception of women’s suffrage and the abolishing of slavery, we’ve not amended it to create any new civil rights or end oppression in over 200 years.   We are utilizing a document that pre-dates the industrial revolution, any form of electronics, and mechanized transportation to run what is perhaps the most complex civilization in the history of the world. The question that will remain after this case is to what degree do we reinterpret and extrapolate to find meaning and direction, and at what point do we simply say that it’s time to amend or rewrite? My thought is that not do either of these things will allow us turn a blind eye to injustice and inequality as these concepts emerge in the modern world.

Justice Kennedy and Same Sex Marriage – Part 1 of 3

It’s been about a month since the Supreme Court issued its decision in Obergefell v. Hodges in which it held that the Constitution protects the right of marriage for same sex couples. I read the decision immediately after it was published and I’ve been contemplating what to write about it since then.   Journalists have already written much about this opinion and I’m certain that the future will bring even more commentary by formal legal scholars. There is much about this opinion and the dissents that I find intriguing and worthy of discussion. In many ways, I see a reflection of the different perspectives of the American people in the writings of the Supreme Court Justices. Because of the complexity of the various approaches by the jurists in the opinion and multiple dissents, I’m going to divide this into 3 parts in order to keep this from becoming too lengthy and to better focus on the writings of the individual justices.

The 5-4 decision is the narrowest possible victory for the petitioners and the split decision is reflective of the societal split and legal difficulty regarding the topic of same-sex marriage. My experience has been that, at its best, the intersection between law and family is difficult. The law seeks certainty and predictable outcomes. It favors statutes and rules that can be applied uniformly to all that appear before a Court. Families and relationships are anything but formulaic. What is just and proper in one family, or relationship, might not be in another. However, there is a tradition among judges that wherever possible they will decide a case on the simplest basis and in the manner that leaves the law as untouched as possible. Despite all the talk of this case as being a historic groundbreaking decision, I believe the Court kept to this tradition, as I will explain below.

Justice Kennedy, author of the majority opinion, begins the opinion by examining the history of marriage. He notes that marriage has evolved throughout history and “has not stood in isolation from developments in law and society.” I feel that he treats the subject and the people involved with a great deal of compassion. He humanizes the case by reciting the backstories and struggles of the petitioners. The case is actually a consolidation of cases from different states involving 3 different couples, each with a unique and compelling story of the harm they suffered from denial of their request to marry or have their marriage recognized by their home state. This humanization of the issue continues throughout the majority decision with language such as:

“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

It is important to remember that the role of the US Supreme Court is one of Constitutional Interpretation.   It is not a trial Court that decides issues of fact. Its fundamental role is to be the final decision-maker on Constitutional issues. Therefore, it is appropriate to ask, what does the Constitution have to say about marriage, a historically religious ritual often performed by clergy? After all, we don’t hear of issues regarding baptism or Bar Mitzvahs coming before the Court.   On the other hand, the marriage relationship, as is noted in the opinion, is a major part of American law with many benefits and privileges being granted through law to married couples. It is this dichotomy of marriage as both religious and secular that makes it such an emotionally charged subject. Interestingly, religion is mentioned in the Constitution, but the word “marriage” doesn’t appear even once in the US Constitution.

One might expect that the Court would decide this issue on the basis of religious freedom. That is, if a clergy person will marry you, then by virtue of your right to religious freedom, the state must recognize your marriage. However, the Court, I believe very wisely, didn’t base its decision upon religious freedom. To have decided the issue on the basis of religious freedom would have elevated clergy to the role of legislating marriage from their pulpits and created a de facto violation of the separation of church and state.

The Court decided the issue based upon the Due Process and Equal Protection clauses contained 14th Amendment of the Constitution, which is familiar territory for the Court when deciding issues of family life. The Constitutional text that the Court considered is:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

While marriage is not a mentioned in the Constitution, the Supreme Court long ago determined that marriage is a fundamental right that must be highly protected against government intrusion. The Court has used this reasoning in prior cases to conclude that state laws restricting marriage based upon race, prohibiting marriage for inmates, laws restricting the right of marriage for fathers with unpaid child support were all unconstitutional. The opinion plainly states that the Court does not see itself as creating a new marriage right, but as affirming a deepened understanding of an existing right. Justice Kennedy writes:

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

In other words, the concept of liberty and equality in the United States is not static, but changes as our understanding and insight expands. The Court gives an excellent example of this concept of emerging understanding by discussing the abolition of the laws that treated married women unequally known as the “doctrine of coveture”. Historically, married women in the United States lacked legal capacity, they were considered subjects of their husbands, and all their property belonged to their husbands. Contracts by married women were unenforceable unless her husband ratified the contract.  Such laws persisted in our country up through 1981 when the US Supreme Court declared them to be unconstitutional. As noted by the Court, if the Court had not looked to emerging insights of liberty and equality, married women in the United States would have remained subjects of their husband.

One interesting aspect of this decision that I expected to see but wasn’t included, is the application of the “strict scrutiny test”. In prior cases involving fundamental rights, the Court has utilized an analysis known as “strict scrutiny”. In this analysis, once the Court has found that a fundamental right is at issue, the State then has the burden of showing that there is a compelling state interest at stake to justify the intrusion upon the fundamental right and that the state action is narrowly tailored to further the compelling interest while limiting the intrusion upon the fundamental right. For example, if a state wants to remove a child from a parent it is infringing upon the parental right of privacy and it must show a compelling interest such as protecting the child from abuse. The removal must be no more than is necessary to protect the child, thus if supervised visits can be done safely, they must be allowed. I am not sure why the Court omitted the strict scrutiny analysis in this case. Perhaps, it felt this was unnecessary given the citation to prior cases.

Having found that marriage is a fundamental right that cannot be denied to same sex couples, the Court then discusses why this issue cannot be left to the voters through the democratic process. I will discuss this issue further when I address the dissent filed by Justice Roberts who argues this point quite strongly.

I believe Justice Kennedy could have ended the decision at this point, but I suspect he understood the controversial nature of the decision and the need to thoroughly explain the reasoning and scope of the decision. Just before ending, he addresses the issue of same-sex couples whose marriages are valid in one state, but not recognized in another. He describes this situation as “the most perplexing and distressing complication[s] in the law of domestic relations” and then describes the hardship and risk this creates for same sex couples. He concludes his discussion of that topic by stating “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

There is another aspect to consider when analyzing Justice Kennedy’s writings.  That is, whether or not Justice Kennedy is writing for the present or for future generations.  The US Supreme Court has too often been on the wrong side of history and justice when it comes to issues of equality and civil rights.  The Court spent a generation upholding and defending segregation.  It upheld internment of Americans with Japanese heritage during Word War II.  Such decisions have not enhanced the historical reputation of the Court as a place where justice was found.  Justice Kennedy clearly writes this opinion from a position of enlightened moral authority.  I suspect that he has a vision of the future and he writes to bring the Court into alignment with the vision.

In the closing paragraph, the opinion returns to the aspirational language seen at the beginning. The language is much more akin to that used in a marriage ceremony than what is usually seen in a Supreme Court opinion, but I think it fits well with the overall compassionate tone of the opinion. I believe this paragraph will be of great value to future generations and I would not at all be surprised to see it become a part of same-sex marriage ceremonies. I think that, even if you read nothing else of the actual opinion, the final paragraph is well worth reading:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”