Supreme Court and Same Sex Marriage: What is Liberty?

The Supreme Court of the United States held on June 26, 2015, that “the Fourteenth Amendment requires states to license two people of the same sex and to recognize a marriage of two people of the same sex when their marriage was lawfully licensed and performed out-of-State.” The decision, known as Obergefell v. Hodges, will certainly go down in history as a landmark case and a defining moment for the rights of gays and lesbians in this country.

Justice Anthony Kennedy, joined by the four justices appointed by Democratic presidents, wrote the opinion of the Court. In a beautiful piece of writing, Kennedy laid out an argument in which the concept of “Liberty” was center stage: “The Generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” For Kennedy, and now solidly in American case law, Liberty is a broad concept.

One of the dissenting opinions, written by Justice Clarence Thomas and joined by Justice Antonin Scalia, also made Liberty a central point of discussion; but, for Thomas, Liberty is a narrowly defined concept. Making use of historical analysis, in keeping with his chosen doctrine of “originalism“, Thomas proposes one of two possible definitions for Liberty.

The first, and most narrow, is the idea that Liberty is the right only to be free “from physical restraint”, meaning arrest, without due process. In other words, it is only a procedural protection from criminal enforcement.  To promote this argument Thomas quotes William Blackstone’s interpretation of the Magna Carta and argues that this interpretation informed the founder’s writing of the Fifth Amendment. With little explanation, he then jumps to say “If the Fifth Amendment uses liberty in this narrow sense, then the Fourteenth Amendment likely does as well.” Were this definition true, it would mean ‘the right to marry whomever you choose’ would not be protected.

Next, perhaps because he was unconvinced by his own prior argument or perhaps because he knew most readers would be, Thomas proposed a definition more in line with the common understanding of Liberty. In this definition, Liberty is “the individual freedom from government action” but not “a right to a particular government entitlement.” Government issued marriage licenses are an entitlement according to Thomas, along with the societal benefits they confer such as reduced taxes on inheritance, compensation for work related death of a spouse, and more. Therefore, even under his broader definition, Thomas argues same sex couples are not entitled to anything under the Fourteenth Amendment.

There are several issues with the Justice’s historical arguments. First, Thomas refers to the Magna Carta but neglects to mention that the due process clause of that document says, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land” [emphasis added]. One could certainly argue that refusing to allow same sex couples to marry, and enjoy all the societal benefits marriage brings, deprives them of standing. While the Magna Carta is not an American legal document, a full reading of the text does clearly indicate that Liberty was understood as a broad natural right. Thomas misinterprets due process and Liberty by making them into something much more narrow than they were even in 13th Century England.

Second, Thomas correctly notes that John Locke had a defining influence on the founders’ understanding of Liberty and correctly quotes Locke’s understanding of Liberty as a person’s “perfect freedom to order their actions and dispose of their possessions and persons as they see fit…without asking leave, or depending on the will of any other man”. In other words, Liberty is the opposite of tyranny. The entire purpose of government according to Locke is to protect that freedom and there is a clear line of connection between Locke’s writing and the Fourteenth Amendment’s protection against deprivations of “life, liberty, or property, without due process of law.” Both for the framers of the Constitution and for the philosophers who preceded them, Liberty was understood as a broad concept, not the narrow “freedom from physical restraint” that Thomas pushes.

Justice Thomas hardly offers a compelling historical argument for the narrow definition of Liberty. In cherry picking only historical quotations that support his view, he ignores the many contrary definitions of Liberty which are in the majority. Most importantly, Thomas ignores the 9th Amendment entirely: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” While legal scholars generally agree the 9th Amendment cannot be used to argue for specific affirmative rights, it clearly sends a general message that natural rights, such as liberty, are not constrained by the Constitution or the Bill of Rights. Rather, as this text makes clear, the Founders believed that “life, liberty, and the pursuit of happiness” are broad natural rights and that government exists to guarantee them.

Thomas makes a better argument when he allows for the broad definition of Liberty but argues that it only protects from government interference and does not guarantee benefits. However, his argument undersells the importance of marriage for an individual’s ability to “to order their actions and dispose of their possessions and persons as they see fit” without having to depend on anyone else, as Locke said. Remember, Thomas agrees that Locke’s definition informed the Founders’ understanding.

Marriage is not solely a private institution or understanding between individuals, their churches, and their families. A great number of laws on the local, state, and even federal level have, over the years, turned marriage into an institution of the state. Estate tax rates, workers compensation benefits, healthcare eligibility, child custody, adoption and private pension benefits are just some examples of laws and institutions dependent on state issued marriage licenses. This means Americans’ ability to distribute their money, both living and after death, as well as raise their children “as they see fit” is dependent on a government marriage license. Or, to put it the other way, the denial of a government marriage license to same sex couples infringes on their ability to exercise their Liberty.

Justice Kennedy’s majority opinion does not make this point nearly as strongly as it could have. Kennedy spends too much time speaking about the “transcendence importance” of marriage and its importance for  poorly defined legal concepts like “nobility and dignity.” The majority opinion would have been stronger if it had laid out more explicitly the specific harms done to same sex couples by denying their right to marriage and how this denial infringes on their due process rights and equal protection of the law by taking away their Liberty. However, Kennedy does at least allude to this argument in discussing the circumstances that compelled the petitioners to sue in the first place.

Consider April DeBoer and Jayne Rowse. Though the couple is raising children together, their state law prior to Obergefell only allowed one of the parents to be legal guardian over each child because the couple was not recognized as married. As Kennedy points out, this means that only one parent would have the ability to respond to an emergency if a child became ill at school and that, if one of the parents were to die, that the children could be separated from the only parents they had known. Such a situation would be a horrible injustice and illustrates clearly how denying same sex couples marriage licenses infringes on their Liberty; and does so without due process or equal protection.

If one accepts that the constitution protects a broad right of Liberty and that marriage is central to an individuals ability to exercise that right, it becomes obvious that denying marriage licenses to same sex couples violates the 14th Amendment. The centrality of marriage to Liberty has been long established in American case law and marriage has been defined by the Supreme Court as a fundamental right. Kennedy is correct both that Liberty is a concept that encompass many individual rights and that we are, as a society, still learning its meaning. Accepting instead the narrow definition of liberty as only “freedom from physical restraint”, as Justice Thomas would have us do, would deny the philosophical history of the founding fathers, their stated intent, the 9th Amendment, and many past Supreme Court decisions. More importantly, the narrow definition of liberty would allow for an unreasonable expansion of government power and do real harm to real people, beyond just same sex couples.

More Liberty means smaller government with fewer powers. For that reason alone, Americans should be happy that Kennedy’s definition won.

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Phil King

Phil King

I am an avid reader and believer in free markets and individual liberty. I have management experience in both government and on political campaigns. I am a critic of politicians on both sides of the aisle, many of whom are badly failing the American people.