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Obergefell v. Hodges: The 'Silent Judge' Respectfully Dissents

06/30/2015 01:23 pm ET | Updated Jun 28, 2016
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Much has already been said and written about what some call Supreme Court Justice Scalia's "unhinged" eight-page dissent on the recent Supreme Court decision on marriage equality.

Although not as colorful as his "jiggery-pokery" dissent on the "SCOTUScare" ruling, Scalia's dissent on same-sex marriage does offer some interesting "insights" liberally (sorry, Your Honor) sprinkled among "Really?" "Huh?" "What say?" "Whatever that means" and other Scalia-isms. Scalia's dissent even offers "what may be the first legal citation of a hippie" by suggesting to "[a]sk the nearest hippie."

After claiming that this momentous case "is not of immense personal importance to [him]," Scalia opines:

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

That is, I suppose, the "freedom" to enslave a couple of generations of human beings, the freedom to -- for another hundred years or so -- deny their descendants and others who happen to be of a different skin color and of a different sexual orientation equal opportunity and the freedom to marry the person they love.

But, as I said, much has already been said and written about Scalia's dissent.

However, another dissenter in Obergefell v. Hodges is a distinguished African-American member of our highest court who has rightfully benefited from a number of U.S. Supreme Court rulings involving race discrimination and the rights of members of racial groups, including Loving v. Virginia.

Supreme Court Justice Clarence Thomas, whom I refer to as the "Silent Judge" because his silence during Supreme Court proceedings is now legendary and whose silence has even been called "disgraceful," is not "silent" this time -- at least not in the written form.

Like Scalia, Thomas writes a lengthy dissent vigorously condemning the majority decision.

What is surprising about Thomas' dissent is the fact that, had it not been for a Supreme Court decision in 1967 (Loving v. Virginia), his marriage to his wife, Virginia, would not be legal in some states.

In fact, Justice Anthony Kennedy, in the majority opinion, points to how "The history of marriage is one of both continuity and change" and how such changes "have strengthened, not weakened, the institution" and specifically mentions how Loving v. Virginia "invalidated bans on interracial unions."

Kennedy also connects dignity ("individual dignity and autonomy") to the same-sex marriage issue:

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10-27. (1) The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs


But even more surprising is how Thomas mis-uses "dignity" and the shame of slavery to justify and support his dissenting opinion.

Pooh-poohing the majority's opinion that this historic decision "will advance the 'dignity' of same-sex couples," Thomas asserts that the Constitution contains no "dignity" Clause, "and even if it did, the government would be incapable of bestowing dignity."

Thomas continues:

. ..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.

Say what?

The government may not be able to "bestow" life, freedom, "inalienable rights" or dignity, but it certainly can take them away or deny them as it does with capital punishment, as it did with slavery, as it did with segregation, as it did with inter-racial marriage laws and -- with respect to dignity and equal rights -- as Justice Thomas attempts to perpetuate with his "respectful dissent."

Yes, Justice Thomas, the Court's decision "will have inestimable consequences for our Constitution and our society," but not in the way you narrow-mindedly envision.