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On Justice Thomas’s Dissent In Obergefell

27 June 2015 @ 02:20

The six Philosopher-Tribunes on the Supreme Court have spoken from their leather thrones again…and the Dictator is well-pleased, and his Drones are celebrating.

There were four dissents.  In this post I’ll be covering the one by Justice Thomas.  I hope to do the same for Justices Scalia and Alito in the next few days.  I will not provide excerpts from the Dissent by the Chief Justice because we cannot trust any of his words any longer — not even ‘and’ and ‘the’.  He has totally beclowned himself with his contradictory actions and destroyed any Legitimacy he once seemed to have had.  He is without Honor or Virtue and, thus, is not worthy of our time any longer.

Justice Thomas begins:

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. The Framers created our Constitution to preserve that understanding of liberty.Yet the majority invokes our Constitution in the name of a“liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

And nor must we.

We must resist it, not comply with it, because this Ruling, as we shall see, fundamentally alters the relationship between individual Americans and their government via a decree from an unelected tribunal.

Our resistance will not be futile because we will be on the side of Good.

Resistance is necessary because (1) we have a Duty to our American Ancestors to preserve, protect, and defend the Great Legacy they fought and struggled and sacrificed to bequeath us and (2) we also have a Solemn and Sacred Duty to preserve for our Posterity that same Legacy.

To shirk such Responsibilities — to wither give-up and retire from The Public Square or surrender and collaborate with the Tyrants in Power And Control — would be to commit Moral Treason, a Mortal Sin, do violence to all that is Just and True, to Murder the Truth.

More from the Thomas Dissent:

…Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation….

And, it must be stated, for it is the Truth: the Constitutions of The Several States were all passed with the consent of their voters, so the Petitioners’s arguments fail utterly here.

…The majority claims these state laws [which define ‘Marriage’ as being only something that can only occur between a man and a woman] deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.


…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.

Time for a History lesson by a master teacher:

The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers. B. Bailyn, The Ideological Origins of the American Revolution 27 (1967). Locke described men as existing in a state of nature, possessed of the “perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” J. Locke, Second Treatise of Civil Government, §4, p. 4 (J. Gough ed. 1947) (Locke). Because that state of nature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security. See id., §97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom “to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact according to the trust put in it.” Id., §22, at 13. [4]

This philosophy permeated the 18th-century political scene in America….

Footnote 4 reads, in part:

…in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry, ante, at 5 (THOMAS, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power,which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have . . . to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148.

Whether you agree with this interpretation by The Founders or not, it is, as Justice Thomas states, the way most of them interpreted the term ‘Liberty’ and what instituting government involves.  It would be no exaggeration to describe these sentiments as ones which animated The Founding Fathers.

Further to the point [emphasis mine]:

…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.” J. Reid, The Concept of Liberty in the Age of the American Revolution 56 (1988)….

Justice Thomas now demolishes the claim of those who are Homosexual and want to be able to Marry that they are being deprived of their Liberty:

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 been able 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 religious ceremonies 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.

Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.

Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.

Homosexuals in America are not victimized by not being allowed to Marry someone of the same sex.

Justice Thomas now makes a key point that I wish many on our side would make [emphasis mine]:

To the extent that the Framers would have recognized a natural right to marriage that fell within the broader definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference. At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke §77, at 39; see also J. Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition. Brief for Petitioners in No. 14– 556, p. 33.

From a Footnote on the same page:

5 The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). …Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).

Further on:

…The majority’s “better informed understanding of how constitutional imperatives define . . .liberty,” ante, at 19, — better informed, we must assume, than that of the people who ratified the Fourteenth Amendment — runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’” Reid v. Covert, 354 U. S. 1, 9 (1957) (plurality opinion), not “Thou shalt provides.”

Well…hey…The Supremes are demi-gods, don’t ya know.

The Justice begins the third section of his Dissent thusly:

The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.

Of this, we should have no doubt because Justice Kennedy, who wrote the Majority Opinion, paints with a very broad brush.

The Majority Opinion does serious damage to representative government:

The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, “give up all the power necessary to the ends for which they unite into society, to the majority of the community,” Locke §99, at 49, they reserve the authority to exercise natural liberty within the bounds of laws established by that society, id., §22, at 13; see also Hey §§52, 54, at 30–32. To protect that liberty from arbitrary interference, they establish a process by which that society can adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. See Locke §98,at 49 (suggesting that society would cease to function if it required unanimous consent to laws). What matters is that the process established by those who created the society has been honored.

That process has been honored here. The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. Brief for Respondents in No. 14–571, pp. 1a– 7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.

Onto the threats to Religious Liberty:

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.

Numerous amici — even some not supporting the States — have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution;it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. [7]

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 marriage to 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.

Footnote 7 reads, in full:

Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies. Va. Code Ann. §20–60 (1960).

Justice Thomas begins the fourth section of his Dissent thusly:

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. Ante, at 3, 13, 26, 28. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.

…The government cannot bestow dignity, and it cannot take it away.

Dead solid perfect.

The summation:

Our Constitution — like the Declaration of Independence before it — was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from — not provided by — the State. Today’s decision casts that truth aside. 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.

Now, in America, Liberty shall be bestowed only by The State when it wants to.

As Mark Steyn remarks:

But here they are redefining an institution that pre-dates the United States by thousands of years with gay abandon. Ireland held a referendum to approve same-sex marriage a few weeks ago. I would not have voted as my fellow Irishmen did, but I can respect their decision. Likewise, I can respect those legislatures from Belgium to Uruguay where the people’s representatives, accountable to their electors, have voted to introduce gay marriage by law. But a system where, in effect, Anthony Kennedy gets to decide for 300 million whether he can divine a right to same-sex nuptials that its drafters cannily left tucked discreetly in some or other subordinate clause of the US Constitution is to torture that document beyond rational meaning — even before John Roberts started doing his “it depends on what the meaning of the word ‘state’ states” routine. In other words, American republican constitutionalism has itself become as meaningless as Obamacare or the definition of marriage. Why don’t we just cut to the Twitter version?

We the… whatever.

We are now living under The Rule Of Feelings, Of The Emotions Of The Moment.  The Rule Of Law is not only dead, it has been buried.

We are now subjects of an Arbitrary Government — a Tyranny.

The Supreme Court has taken control of Liberty away from the Sovereign People and reserved it’s definition and application to itself.

The Court has declared by diktat that every American belongs to, is the property of, The State.

By Decree, the Supreme Court has reimposed Slavery.



  1. ScienceABC123 permalink
    27 June 2015 @ 09:35 09:35

    I see only two ways out of this judicial chaos; 1) pass an Amendment that specifically states that the Constitution means exactly what the words say, nothing more, nothing less, and all previous judicial decisions that don’t fall into this definition are voided; 2) revolution.

    Otherwise we are to become nothing but a shadow of a once great country.

    • Adobe_Walls permalink
      27 June 2015 @ 21:39 21:39

      Revolution it is then.

      • 28 June 2015 @ 21:05 21:05

        Not ‘Revolution’, but Restoration.

        • Adobe_Walls permalink
          29 June 2015 @ 19:57 19:57

          It’ll have the same flavor.

        • 29 June 2015 @ 20:57 20:57

          Maybe. Likely, I suppose. In terms of the Misery and Violence, but we must work to do as The Founders did and prevent a French-type Revolution. That is our duty.

    • 29 June 2015 @ 00:27 00:27

      My grave concern is that as long as words in the Constitution and in law are plastic and malleable to those in government, that a revolution will merely allow some new tyrant to arise. At the very least we must be able to more easily eject judges who “go Roberts”.

  2. 27 June 2015 @ 10:13 10:13

    Reblogged this on That Mr. G Guy's Blog.

  3. theebl permalink
    27 June 2015 @ 10:31 10:31

    Thank you Bob. Great post and editing.

  4. indyjonesouthere permalink
    27 June 2015 @ 13:02 13:02

    I am of a similar opinion as HJL at Marriage should never have been a part of state or federal law. And before the Civil War, marriage was pretty much between a man, woman, and their church. The church pretty much invented and promoted marriage as a way to more safely and comfortably raise children and have them properly cared for by the parents. Marriage is a contract between parents to raise a family under certain conditions and it would be best to leave it as such and get the state entirely out of marriage and marriage law to include divorce. Divorce the state and you divorce nannyhood.

  5. formwiz permalink
    27 June 2015 @ 13:06 13:06

    This is all to the good.

    We’re all being a crash course on why the Constitution is necessary and why it should be defended to the death.

  6. Adobe_Walls permalink
    27 June 2015 @ 21:42 21:42

    It isn’t as if we didn’t already know that we needed to revisit Maybury v Madison.

  7. 29 June 2015 @ 00:24 00:24

    The left, and libertarians rightly ask if a person owns his own body. The left and libertarians then rightly go on to say that government has no right to control what they choose to ingest. In many cases, this demand was for the liberty of ingesting hallucinogens, but in other cases for the liberty of ingesting cow’s milk that had not been damaged by pasteurization.

    Now in the case of same sex marriage, the left demands that the cake baker, the wedding photographer and the florist no longer own their bodies, that they can be forced into servitude of an otherwise private event that is morally abhorrent.

    Government regulation of marriage has been taken over by the Pink Swastika crowd. Bake the cake or they will send government to destroy your family business. They will grind you into the dust as far as they can like they did to the former CEO of Mozilla, Brendan Eich. This is homo-fascism in action.

    If we have a separation of church and state, in order to protect godly marriage, we must separate marriage and state. It is time to get government out of the business of defining and regulating marriage.

    When marriage is a private matter once again, the Pink Swastika crowd cannot force anyone to bake a cake they don’t want to.

    I advise all clergy to stop being agents of the State, which is exactly what they are when they perform a marriage ceremony that was licensed by the State, and where the clergy signs the marriage license after performing his duties. Churches must declare they will not cede any ecclesiastical matter to the State, and indeed they reserve those matters under the First Amendment. Thus the clergy must seize marriage back from the State they foolishly gave it to. Let people be “married” by the State for purposes the State requires. Let the clergy officiate at a ceremony of the Covenant of Marriage, and by those means have full control over who is qualified to enter in to that covenant.


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