I still haven’t read the opinions from yesterday’s SCOTUS decision yet. (My printer is out of ink and my eyes go cross-eyed if I try to read too much on-line.) However, it appears that Justice Clarence Thomas’s dissent is the one that saw through to the heart of the matter: the court’s eccentric definition of ‘liberty,’ a definition so bizarre that the court only invokes it in very select cases. Otherwise, it would break the back of the rule of law if applied consistently.
Liberty is complete individual autonomy, the freedom to do anything one thinks will give his life dignity. Any law that curtails such ‘liberty’ is unconstitutional. It violates due process, the protection that a citizen cannot be ‘deprived of life, liberty, or property without due process of law.’ The court has argued (in very select cases) that a law that deprives one of liberty is no law. (Common sense might say that administering such a law justly would be ‘due process of law,’ but our justices abandoned common sense long ago.)
Using that definition, it took three simple steps to get to yesterday’s decision:
1) Anthony Kennedy established this definition of ‘liberty’ as precedent in the seminal anti-sodomy-law case, Lawrence v. Texas, quoting from a previous abortion case, Planned Parenthood v. Casey: “These matters [homosexual behavior], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
As Justice Antonin Scalia’s dissent asserted, this is poetry, not legal reasoning. What law has ever been passed regulating a person’s right to define anything? But if a person has the completely unfettered right to act according to her own definitions, then “this is the rule that ate the law.”
2) Anthony Kennedy then used this definition to argue that the Defense of Marriage Act was unconstitutional in a sham case that should never have been taken up by SCOTUS, United States v. Windsor. You may remember that Eric Holder and Obama announced that the Executive would not in this case fulfill their oath of office by not defending the law of the land. So it was actually No one v. Windsor, who had already won her case in two lower cases anyway. Kennedy argued that Windsor was deprived by DOMA of her ‘liberty’ in violation of the due process clause in the Fifth Amendment, which applies to the federal government. “Liberty” and “dignity” are virtually synonyms in this opinion.
3) Now, Anthony Kennedy uses this same eccentric definition of ‘liberty,’ citing his own two precedents, to argue that state bans on same-sex marriage violate the Fourteenth Amendment due process clause. The Fourteenth Amendment does apply to states. No state may deprive an individual of ‘liberty.’ Period. If any law that deprives one of such ‘liberty’ is unconstitutional, then the further words ‘without due process of law’ become meaningless. There is no just administration of such a law that could be considered ‘due process.’
Kennedy appears to believe not only that he has protected LGBTers from the deprivation of dignity, but that he has actually conferred dignity upon them. Robe-clad humans can do no such thing. God confers dignity on human beings. (Pure secularists may say evolution has done so.) Dignity inheres in human beings. Kennedy bestowed nothing! But his reasoning delegitimizes this court.
We will see what definition of ‘liberty’ is at play in the religious liberty cases to come.