In invalidating same-sex marriage bans nationwide in Obergefell v. Hodges, the Supreme Court held that the Fourteenth Amendment protected marriage as a fundamental liberty, regardless of the sex of the spouses. Specifically, it noted that
The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State….
….The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.
To this, Justice Clarence Thomas offered a dissent (in which he was joined by Justice Antonin Scalia), taking on the definition of liberty:
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits….[and the petitioners] have in no way been deprived [of liberty]. 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.
This in itself is troubling enough. And rather typical of the right-leaning, libertarian-esque, social conservatives who tend to give the most ungrounded and facile readings of “liberty” — unless the flavor of said liberty is taxation or other kinds of property control.
But then things take an interesting, and, I would suggest, more worrying turn: Not only have the petitioners not been deprived of their liberty, Justice Thomas argues, but their human dignity itself is also not subject to governmental influence or control (and, indeed, “has long been understood in this country to be innate”). Here are Thomas’ thoughts:
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The corollary of that principle 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.