Clarence Thomas Dissents - Word Foundations

Excerpts from “Misinformed and Misled: How a Distorted Perspective on Rights Is Leading America into Tyranny“

Misinformed and Misled: How a Distorted Perspective of Rights Is Leading America into Tyranny, Part 5

How True Rights and Genuine Liberty Are Becoming Casualties of the Supreme Court’s Redefinition of Marriage

Depending on the circumstances and on what listeners want to hear, the truth can be very difficult to accept. So difficult, in fact, that some individuals reject it altogether. Consider Marc, who was very much alive but was convinced he was dead. When his psychiatrist asked him if dead men bleed, Marc said no. The doctor promptly stuck Marc’s finger with a needle, causing blood to come forth. “Wow!” exclaimed Marc. “Dead men really do bleed, after all!”

With very few exceptions, it isn’t desirable for people to live in a world of fantasy and illusion. Mature people must grapple with reality. People need to eat! The bills have to be paid! The real world is messy, but it is the one we live in—yet it’s also the one in which we can find fulfillment and satisfaction, if we adjust to life’s demands and cooperate with its realities.

The law of gravity provides a great example. No one can step out of a 10^th story window and expect to go anywhere but down, and fast! Gravity prevents us from safely doing a great number of things. Yet when we cooperate with it, we benefit immensely. Why? In a great many ways, gravity, which is part of “the natural order of things,” makes ordered life on earth possible.

Marriage, as humanity has understood it for centuries, is very much like gravity in this regard. When a society respects marriage as an institution uniting one man and one woman in a committed, lifelong relationship, it’s clear that it limits that society in certain ways. Perhaps it’s not as clear that it liberates it in many more! Clear or not, this is the truth! When a nation rejects man-woman marriage, devastating consequences follow, a number of which we have discussed in previous posts.

This week in our series on rights, we move to consider how the Supreme Court of the United States, through its ruling on marriage, has violated the concept of rights our Founders embraced and enshrined in our Constitution, particularly in the Bill of Rights. Ironically, it has done this in the name of granting rights to a few! Five Supreme Court justices—a bare majority—also have violated the natural order to make life worse for everyone. Not everyone will accept the truth we will explore, but those who do accept it will benefit. Moreover, the more who accept it, the more the country will benefit. It is time for us as a nation to stop living in a world of fantasy.

At the outset, I’d like to stake out four principles that describe my perspective.

Everything I write today, I write, as Abraham Lincoln said in his Second Inaugural Address, “with malice toward none, and charity for all.”
While I bear absolutely no ill-will toward those who disagree with me, I cannot remain silent as this country continues to decline and as its foundational principles are abandoned and rejected. Liberty and authentic freedom are fragile and must be guarded. Once liberty is understood to mean license, once freedom is seen as absolute individual autonomy, and once the government endorses these definitions with policy, people begin to live according to their base desires en masse, without giving a single accurate thought to the public good. Eventually this will lead to societal chaos, which inevitably will lead to tyranny. We’ve been traveling down this very road for some time.
In previous posts, I have repeatedly called the evidence for man-woman marriage “obvious.” From the Word Foundations menu, do a search for the word obvious, and you will see what I mean. Here is one of my bedrock convictions: The fact that marriage can’t be anything other than what it has been for centuries is self-evident, revealed in nature and other realities in the world in which we live. Why, then, isn’t the obvious, obvious? Because the popular culture has touted lies about the world, life, and marriage so frequently and for so long, millions have come to believe them. They have been blinded!
I believe the Bible is God’s authoritative revelation to humanity and that it is absolutely true in all that it says. Even so, I don’t believe we need the Bible to understand what marriage really is. We will consider a few Bible passages at the end of this post, but otherwise we will rely on the truth that nature itself speaks loudly and clearly. The case for this is strong.

I am honored to be in very good company! Although I cannot verify that he would agree fervently with everything I’ve stated thus far, he apparently agrees with much of it, because I agree with him about the Supreme Court’s Obergefell ruling. In his dissent on this ruling, Associate Justice Clarence Thomas brilliantly describes the situation at hand.

In this post we will examine only the first paragraph of Justice Thomas’s dissent. That paragraph’s seven sentences alone are insightful and substantive, and they’re alarming enough to raise red flags nationwide about same-sex marriage. Next week we will look at additional statements in Thomas’s dissent and discuss even more implications of the Obergefell ruling as it relates to rights. But we’re getting ahead of ourselves. Here is the first paragraph.

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.

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Let’s consider each of these statements individually.

Statement 1: “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built.”

To learn just a few of the ways the Obergefell decision “is at odds…with the Constitution,” read this brief summary from Alliance Defending Freedom. Also read Bradley C. S. Watson’s National Review article “Reclaiming the rule of Law after Obergefell.” You can read some of our nation’s foundational principles here.

Statement 2: “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”

From May 25 to September 17, 1787, the Constitutional Convention met in Philadelphia, Pennsylvania, and its delegates drafted the US Constitution. As we discussed in a previous post, resistance to ratification was strong because the proposed Constitution did not have a Bill of Rights—a list of limitations on the government that would keep it out of the way so people could live their lives freely. Even though the Constitution was drafted and proposed in 1787 without a Bill of Rights and subsequently was ratified, it was accepted only when the Bill of Rights was added. Thus, “there was, in the minds of this first generation of US citizens (not just the Founders), a direct relationship between the thriving of personal liberties (rights) and restrictions that kept the federal government out of people’s lives.” The battle to add the Bill of Rights to the US Constitution never would have been won if the principles of limited government had not been accepted and embraced in the populace in years prior.

Oh, that we could recapture their love of limitations on government! Today the prevailing perspective on rights calls, not for government limitations, but government intrusion! For a few moments, reflect on the degree to which government has had to invade marriage in order to remake it into an institution that affords same-sex couples the “right” to “marry.” While in US history, the Supreme Court has issued numerous egregious decisions to grant positive rights, only a handful have sent the Court even close to the level of meddling we’ve seen with Obergefell. More on this in a moment.

Statement 3: “The Framers created our Constitution to preserve that understanding of liberty.”

The Bill of Rights, with its government-limiting provisions to ensure individual liberties, provides undeniable evidence of this truth.

Statement 4: “Yet the majority [of Supreme Court justices] 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.”

These are allusions to a positive right and to negative rights. The positive right, the “‘liberty’ that the Framers would not have recognized” is, of course, same-sex marriage. Does anyone really believe the Founders had same-sex marriage in mind when they wrote the Constitution? Does anyone think for a New York minute they wouldn’t have acted to protect man-woman marriage if they knew same-sex marriage ever would be seriously proposed, much less practiced, in the United States? The point here is that we can be certain redefining marriage never even entered the the minds of the Founders, so they did not sanction it. We can say the same thing for those who drafted and ratified the Fourteenth Amendment (ratified after the US Civil War), which is cited as a basis for the Obergefell ruling. How then, can same-sex marriage be constitutional?

Many other strong arguments against the constitutionality of same-sex marriage exist as well, but Justice Thomas, rightly, was saying the Framers never would have recognized the practice as legitimate. The truth is that the men who drafted the Constitution and the Bill of Rights did act to prevent the implementation of same-sex marriage, even though they didn’t know it ever would be considered. They did so by enshrining the principle of limited government in the founding documents. The Supreme Court has rejected this principle outright.

Further into his dissent, Justice Thomas discusses Obergefell’s threat to religious liberty, which we will consider next week. The freedoms associated with the principle of religious liberty are included in the term “liberty” in Thomas’s powerful clause, “to the detriment of the liberty they [the Framers] sought to protect” through provisions that limit government action. Those provisions were established to guarantee negative rights.

Statement 5: “Along the way, it [the Court] rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.”

The Declaration of Independence declares,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness.

Rights are God-given! Put another way, human dignity is innate because it comes from God! This was the conviction of our Founders. It is a principle on which they severed ties with Great Britain and on which they founded the United States of America. The Obergefell ruling, according to Thomas, “rejects this idea.” Justice Thomas is right.

Moreover, through its ruling the Supreme Court “suggests instead that it [human dignity] comes from the Government.” We must not miss the implications of Justice Thomas’s strong statement. Marriage, a God-given and God-ordained institution, could be redefined by government only through the most intrusive of bureaucratic actions. In redefining marriage, therefore, our government defied God! Yet, as frightening as this is, there’s even more here to alarm us. If human dignity comes from the government rather than God, is it really dignity at all?

Human dignity definitely does not come from government. It was the reality of human dignity—innate and God-given—that compelled our country’s Founders to limit government in ways that preserved personal freedom and rights in the first place!

Statement 6: “This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.”

The implications here are especially alarming. Hang in there with me, and you’ll see what I mean. In the US Constitution we see reflected a host of principles stated clearly in the Declaration of Independence. This one comes to mind: In order “to secure these rights [the unalienable rights given by God], governments are instituted among men, deriving their just powers from the consent of the governed” (emphasis added). Accordingly, the Constitution itself doesn’t begin with “The Government of the United States of America,” but with the phrase “We the People.”

The people are to be the government’s boss in America, but the US government has inverted this relationship by usurping the people’s authority. Not only that, but the Supreme Court, through its Obergefell ruling, has defied nature and defied God. In fact, it has set itself up as God! If the Supreme Court will be so bold as to change the millennia-old definition of marriage, what will it not attempt?

Statement 7: “I cannot agree with it.”

Justice Thomas understands. He “gets it”! Because he does, he disagrees with the marriage ruling, and so must everyone else who is truly familiar with the importance of the founding principles of the United States of America.

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Misinformed and Misled: How a Distorted Perspective of Rights Is Leading America into Tyranny, Part 6

How the Government Is Bulldozing Over Conscience Rights to Secure All the “Rights” Associated with Same-Sex Marriage

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.
—Supreme Court Justice Clarence Thomas, in his dissent on the Obergefell ruling—

Last week we began to examine Justice Clarence Thomas’s dissent in Obergefell, the case in which five Supreme Court Justices—a razor-thin majority—struck down the all laws in the United States that limited the definition of marriage to one man and one woman. Thomas’s dissent rests on the solid foundation of the Founders’ perspective on liberty and rights. For your convenience and review, here is the first paragraph of his dissent.

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 [when the Constitution of the United States was drafted and sent to the states for ratification], 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.

Conscience rights were seen by America’s Founders as sacred. These essentially are rights to exercise your religious beliefs freely, without hindrance from the government. With the founding of America, especially through the First Amendment to the US Constitution, “government essentially said, Yes, be religious. We will not only tolerate it; we will respect it and we will encourage it. But we cannot take sides or put our thumbs on the scales. But the understanding of this has been lost to many in modern America.”¹

Against this historical backdrop, we can better understand Justice Thomas’s dissent, and just how extreme and unconstitutional the Obergefell ruling really is. Thomas expounds eloquently and powerfully on his opening paragraph. He writes,

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 re- strained, 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.

Thus, same-sex marriage by itself violates the Framers’ concept of liberty and rights. This reality is bad enough, but as we have seen in the year since the Obergefell ruling was issued, enshrining this positive right into the practice of American culture has, more than any other governmental action, strengthened the movement for a whole host of additional counterfeit rights—positive rights that trample on the negative—and authentic—rights of ordinary citizens.

This truth was not lost on Justice Thomas (citations have been omitted to enhance readability).

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 [legal briefs advising this Court]—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” In our society, marriage is not simply a governmental institution; it is a religious institution as well. 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. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition.

Writing for the majority of justices in Obergefell, Justice Anthony Kennedy had said,

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

What?! Advocate with utmost, sincere conviction?! Teach the principles that are so fulfilling and so central to their lives and faiths?! The “proper protection” afforded in the First Amendment clearly allows citizens to do things far more substantive than these! Justice Thomas continued in his dissent, poking holes in Kennedy’s weak view of conscience rights and religious liberty.

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.” 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.

On a side note, we need to be aware that it isn’t just the Supreme Court that is refusing to wholeheartedly affirm freedom of religion. Last year in New York City at the sixth annual Women in The World Summit, Hillary Clinton was talking about abortion when she declared that “deep-seated cultural codes, religious beliefs and structural biases have to be changed” so women can have increased access to “reproductive health care.” One cannot dismiss the idea she feels the same way about convictions that homosexuality is a sin, because she also said, “We move forward when gay and transgendered women are embraced as our colleagues and friends, not fired from their jobs because of who they love.”

Unfortunately, we do not have to look far to find a growing number of examples of what Justice Thomas called “civil restraints…upon religious practice.” This video prepared by Alliance Defending Freedom (ADF) is a great place to start.

Notes:

¹Eric Metaxas, If You Can Keep It: The Forgotten Promise of American Liberty, (New York, Viking, 2016), 73.

Misinformed and Misled: How a Distorted Perspective of Rights Is Leading America into Tyranny, Part 7

Eight Reasons Obergefell Has Derailed America
The Importance of Rediscovering the Authentic American Way

The real American way embraces free speech and open debate in the marketplace of ideas. In fact, at the founding of the country, free speech and personal integrity were so cherished that no one thought of trying to adjust his or her position so as to attract a greater number.

Modern Americans are assaulted by misguided calls for “bipartisanship,” a code word for one side ceding its ideas to the party favored by the media. In fact, however, [Founding Father James] Madison detested compromise that involved abandoning principles, and, in any event, thought the Republic was best served when factions [groups with opposing viewpoints, especially political parties] presented extreme differences to the voters, rather than shading their positions toward the middle. The modern moderate voters—so highly praised in the media—would have been anathema to Madison, who wanted people to take sides as a means of creating checks and balances.¹

Thus, while at the time of the founding rigorous debate was considered healthy, with Obergefell, the Supreme Court effectively choked it off! As Justice Clarence Thomas said in his dissent (citations have been omitted to enhance readability),

The majority [of this court making this decision] 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,” they reserve the authority to exercise natural liberty within the bounds of laws established by that society. 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. 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. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.…

[Also,] conscience rights aren’t new, but a part of America’s heritage. Conscience rights are negative rights consistent with the Founders’ view of liberty and limited government. As Justice Thomas indicated in his dissent, the “right” of members of the same sex to “marry” involves government intervention inconsistent with Founding principles and with the Constitution. You may recall that Thomas wrote,

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.

¹Larry Schweikart and Michael Allen, A Patriot’s History of the United States: From Columbus’s Great Discovery to the War on Terror, (New York: Sentinel, 2004), 122.