Before going any further, may I say that I believe gay marriage should be legal, and, indeed, that I think the Constitution can legitimately be interpreted to require it. In that sense the Supreme Court's decision nearly two weeks ago was worthy of applause, even though nearly everyone seems to agree that Justice Kennedy's decision was not a highlight of American jurisprudence. I did not think so either. I think it embodies some unfortunate trends that have changed the role of the high court and changed our laws in unfortunate ways. And I am one of those who believe that consistency and fidelity to precedent are critical to a well-functioning judiciary, even if those qualities sometimes make it harder to reach my preferred result. Thus, I want to discuss the decision, and to show how I think the court could have reached a better one. To do so--and believe me when I say that I am just as shocked to write this sentence as you are to read it--I am going to rely mainly on the opinion of my contemporary, Justice Clarence Thomas. Please pick yourself off the floor and be ready to proceed.
Kennedy's majority opinion (which none of his liberal colleagues thought fit to supplement with reasoning of their own) relies, to begin with, on the doctrine of "substantive due process." Both the 5th and 14th amendments state that no American citizen shall be deprived of life, liberty or property without due process of law. That looks like a mere protection against arbitrary detention or imprisonment to me. As my old friend, the legal commentator Ken Jost, helped explain to me, however, these clauses have been read to give the citizens other liberties never enumerated in the Constitution, and, indeed, which early Americans did not enjoy. The Griswold and Baird cases that legalized birth control, Roe v. Wade which legalized abortion, and Lawrence v. Texas which legalized gay sex, all relied on this doctrine. They did not invent it: it comes originally from a 1923 case, Meyers v. Nebraska, which struck down a law that banned the teaching of foriegn languages by anyone to any child not old enough to attend the eighth grade. Here is what Justice McReynolds said then, speaking for the Court.
"While this Court has not attempted to define with exactness the
liberty thus guaranteed, the term has received much consideration and
some of the included things have been definitely stated. Without doubt,
it denotes not merely freedom from bodily restraint, but also the right
of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of
his own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of
happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136 U. S. 313; Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S. 33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S. 312; Adkins v. Children's Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered
with, under the guise of protecting the public interest, by legislative
action which is arbitrary or without reasonable relation to some
purpose within the competency of the State to effect. Determination by
the legislature of what constitutes proper exercise of police power is
not final or conclusive, but is subject to supervision by the courts. Lawton v. Steele, 152 U. S. 133, 152 U. S. 137."
While McReynolds defined liberty broadly, he did so in terms of tradition, both under the Constitution (the reference to religious freedoms, properly defined) and with respect to the common law. He also established a test for legislation--that it could not be arbitrary or lacking any reasonable purpose. But he did not use the clause to invent any new liberties, as the Warren and Burger and Rehnquist courts did to legalize birth control, abortion, and gay sex.
In their dissents, Justices Roberts and Scalia took Kennedy and the majority to task for inventing new law that reflected their own beliefs, or perhaps the beliefs of a large portion of contemporary society. Kennedy essentially admitted that that was what he was doing, acknowledging that opinions of what is right and proper change, and declining to wait for all our state legislatures to pass laws reflecting new views of gay marriage. I think Roberts's and Scalia's accusations had more than a grain of truth, but they have repeatedly been guilty of the same sin. It was not until the decisions they joined in Heller and Citizens United that anyone asserted that the Constitution protects a citizen's right to bear almost any arms, or that restrictions on campaign spending are illegal. And in striking down the key section of the Voting Rights Act, they invalidated a very recent act of Congress. I honestly would prefer it if the present court included at least one genuine strict constructionist, who might have voted against the gay marriage decision, but also against all of those conservative decisions as well, on the grounds that every one of them went well beyond what the Constitution says. Unfortunately there is no such person on today's court.
Justice Thomas's dissent starts with a flat-out, carefully argued rejection of the whole doctrine of substantive due process, and goes back to Magna Carta to show that "liberty," under English and American law, had the clear definition of freedom from physical restraint, period, With this I am inclined to agree: I do not think those clauses of the 5th and 14th amendment referred to broad and undefined liberties. The court going back at least to Griswold would have been better advised, in my opinion, to find additional rights in the 9th and 10th amendments, which specifically state that the people enjoy rights not specifically guaranteed in the Constitution. Unfortunately, they did not. At the same time, Justice Thomas makes a second argument, one dear to the heart of present day "conservatives" like himself, which seems to me quite absurd.
Stating the new conservative view of the Constitution and its origins, Thomas claims that liberty does not come from government. John Locke, he argues, said that men enjoyed perfect liberty while still in a state of nature. "When the Framers proclaimed in the Declaration of Independence that “all men are created equal," he writes, "and 'endowed by their Creator with certain unalienable Rights,' they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built." But this is not correct. The authors of the Declaration did not refer to "God," but to a "Creator." More importantly, Thomas, like most contemporary conservatives, conveniently omits the next sentence in the Declaration: "To secure these rights, governments are established with the consent of the governed."
We enjoy our rights only because we have an effective government. Without it, we would be at one another's mercy.
This fundamental misreading of history and law allows Thomas to embark upon a real flight of fancy worthy of a 19th-century French Catholic conservative. "The corollary of that principle," he continues, "is that 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.
"The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue toadhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them."
Now Justice Thomas, a Catholic himself, is free to believe that he owes nothing of his dignity to his status as a free and equal citizen of the United States, but our whole history and body of law screams the exact opposite. The greatest and most radical achievement of our revolution, as Tocqueville along with the framers themselves understood, was to create a society without distinctions of rank, in which all were equal before the law. The abolitionist movement based itself upon that principle as well and it was embodied in the 13th, 14th and 15th amendments after the civil war. The twentieth century has extended full legal dignity to women. Under Franklin Roosevelt's leadership, we fought the Second World War to make four fundamental freedoms safe in the world at large. It seems that Clarence Thomas, had he been an adult living in 1776, would have been a Tory, complaining that the Continental Congress had opened a revolution against an earthly authority whose doings should not unduly trouble any of God's creatures. Fortunately for the United States and the world, those views, while present in the revolutionary era, did not prevail.
It was these words of Justice Thomas that convinced me that the Supreme Court had made the right decision, even though its reasoning could have been much better. Gay sex has now been legal in the United States for more than ten years. The majority of us who are disposed to love and desire members of the opposite sex have always had the freedom to marry a partner of our choosing. In Loving v. Virginia, the case that struck down laws against interracial marriage in the 1960s, the Court did what it had been doing for a long time: it put an end to laws that created two classes of citizens, one free to marry whom they chose, and the other not. That is what it has done now. With gay sex recognized as legal, there is no basis for denying gay men and women the right to marry, based on the equal protection clause of the 14th amendment. As the court held in Meyers, liberty at common law includes the liberty to make contracts, including marriage contracts. When homosexuality was illegal, such contracts would also have been, but we live now in more enlightened times and it is not. My thanks go to Clarence Thomas, whose utterly baseless view of the foundation of our law and the source of our rights led me to see why the Court was right to legalize gay marriage.