POLITICS

Clarence Thomas Has The Weirdest Dissent To The Marriage Equality Case

06/26/2015 02:16 pm ET | Updated Jun 27, 2015

WASHINGTON -- Justice Antonin Scalia may have penned the most colorful dissent to Friday's landmark Supreme Court ruling on marriage equality, but his colleague Clarence Thomas wrote the weirdest.

Thomas, alone among the four dissenting justices, seemed to recognize that the legal reasoning he and his fellow conservatives were bringing to bear on same-sex marriage could also apply to interracial marriage. That's a problem for Thomas, because only bigots oppose interracial marriage, and he presumably didn't want his dissent to be seen as window-dressing for hatred. Thomas tried to get around this uncomfortable parallel by arguing that Loving v. Virginia, the 1967 decision that required every state to recognize interracial marriage, wasn't really about marriage after all. Here's what he wrote:

Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3. They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time.

In other words, Thomas is saying, the Loving decision was actually about letting interracial couples live together without being arrested. And OK, yes, it's true that Richard and Mildred Loving were criminally prosecuted. But it's ridiculous to claim that the decision overturning their conviction simply decriminalized interracial cohabitation. Here's what then-Chief Justice Earl Warren actually wrote in that case:

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause ... The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence... 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.

If you're still not sure whether that decision was about marriage, then consider that it overturned interracial marriage bans in 16 states... kind of like how Friday's decision overturned same-sex marriage bans in 13 states. Thomas can say whatever he wants, but his reasoning here is hard to defend. (Incidentally, Thomas, who is black, is married to a white woman named Virginia, because you can't make this stuff up.)

But wait! The Thomas dissent actually gets weirder! The justice is apparently very upset about the majority of his colleagues writing so much about "dignity" for gay couples. Here's what he has to say about human dignity:

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.

Relax, same-sex couples! Your dignity hasn't been compromised by laws against gay marriage any more than slavery compromised the dignity of the Africans who were abducted, exploited, raped and murdered in its name.

Thomas also says lots of weird stuff about the Magna Carta and John Locke's Second Treatise of Government, neither of which is the United States Constitution.

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