JUSTICE
THOMAS, with whom JUSTICE SCALIA joins, dissenting.
[T]he
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.
By
straying from the text of the Constitution, substantive due process exalts
judges at the expense of the People from whom they derive their authority.
Petitioners . . . 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. That a “bare majority” of this Court, is able to grant this wish,
wiping out with a stroke of the keyboard the results of the political process
in over 30 States, based on a provision that guarantees only “due process” is
but further evidence of the danger of substantive due process.
Even
assuming that the “liberty” in those Clauses encompasses something more than
freedom from physical restraint, it would not include the types of rights
claimed by the majority. 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.
“[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). Or as
one scholar put it in 1776, “[T]he common idea of liberty is merely negative,
and is only the absence of restraint.” R. Hey, Observations on the Nature of
Civil Liberty and the Principles of Government §13, p. 8 (1776) (Hey).
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.
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.
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.
“[L]iberty”
is not lost, nor can it be found in the way petitioners seek. As a
philosophical matter, liberty is only freedom from governmental action, not an
entitlement to governmental benefits. And as a constitutional matter, it is
likely even narrower than that, encompassing only freedom from physical
restraint and imprisonment. The majority’s “better informed understanding of
how constitutional imperatives define . . . liberty,” . . . runs headlong into
the reality that our Constitution is a “collection of ‘Thou shalt nots,’”), not
“Thou shalt provides.”
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.
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. The history of religious
liberty in our country is familiar: Many of the earliest immigrants to America
came seeking freedom to practice their religion without restraint.
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.
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.
[T]he
Constitution contains no “dignity” Clause, and even if it did, the government
would be incapable of bestowing dignity.
Human dignity has long been understood in this country to be innate.
When the Framers proclaimed in the Declaration of Independence that “all men
are created equal” 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.
The
corollary of that principle is that human dignity cannot be taken away by the
government.
The
government cannot bestow dignity, and it cannot take it away.
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.
