Sheldon Richman on Same-Sex Marriage and Clarence Thomas' Confused Notion of Freedom

Like Scalia, Thomas sides with the ersatz "liberty" of the People (a collectivist notion) against the real liberty of the several persons.



Compared to Supreme Court Justice Antonin Scalia, his colleague Clarence Thomas is well regarded by at least some devotees of liberty, and this is not totally unjustified. Thomas has demonstrated a familiarity with the philosophy and history of natural law and natural rights, which he (at times) sees rooted in individual persons. However, this background knowledge has not kept him from taking positions abhorrent by libertarian standards. For example, he voted with the minority in Lawrence v. Texas, in which the court struck down a law criminalizing intimate acts between gay and lesbian individuals. To be fair, Thomas said his objection to the majority opinion was constitutional, not substantive: "I can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy."

Of course in Obergefell v. Hodges, Thomas voted against the proposition that state laws which deny recognition to same-sex marriages are unconstitutional because they violate the due-process/liberty and equal-protection clauses of the 14th Amendment. Even so, his dissenting opinion has material of interest to libertarians, writes Sheldon Richman. Thomas's main point is that Justice Anthony Kennedy's majority opinion did not demonstrate that denying recognition to same-sex marriage constitutes a violation of liberty. A denial of state benefits? Yes. But, he pointed out, to deny state benefits is not to deny liberty.