Justice Thomas decided long ago never to walk in anyone's shadow.

I burnt out trying to read (and blog) all 5 of the Obergefell opinions yesterday. I was getting annoyed slogging through the Chief Justice's long cogitation about restraint after getting through Scalia's relatively playful romp through the topic (and the frustrating fuzziness of the majority opinion), and I just couldn't get to the work of Justices Thomas and Alito.

But let me finish the task I assigned myself and move on to live-blogging my reading of the Thomas dissent (which is joined by Scalia):

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. 

This is an excellent beginning, highlighting the main problem with using substantive due process — the idea of fundamental liberties (the "right to marry") — rather than equal protection. It's easy to see that the government is subject to equal protection limits as it hands out benefits, but maybe liberty should have only to do with being left alone to do what you can do on your own without interacting with the government.

So I'm very interested in what Thomas has to say about equal protection (which I think makes the most sense as the basis for the right), but he has almost nothing to say. He drops a footnote early on, observing that the majority says it's using equal protection, but it's "clearly" only using it "to shore up its substantive due process analysis." I agree, but when you're finding a right, one is enough. If you're rejecting the claim of right, you need to reject both grounds. Thomas should at least have articulated a legitimate government interest to be advanced by excluding same-sex couples from the legal institution of marriage. In my view, it cannot be done. (Listen to the oral argument to hear the ludicrous implausibility of the connection between the government's asserted interest — that children grow up with their biological parents — and the restriction of marriage to opposite-sex couples.)

To return to the subject Thomas does address — substantive due process — he opposes all of it. That is, he wouldn't even acknowledge the privacy rights that protect gay people from government interference with their freedom to engage in sexual activity. But there's case law that says these rights exist, so Thomas goes on to distinguish that case law:

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....

Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized....

Thomas accuses the majority of not caring enough about the problems its opinion will create for religious believers:

It makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

He's right that the majority only spoke of protecting freedom of speech and belief (a freedom that's protected whether your viewpoint is religious or not). But under the current Free Exercise of Religion precedent, there is no special treatment for religion-based conduct. Thomas alludes to that precedent:

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. 

That refers to statutory law such as the Religious Freedom Restoration Act.

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.

That is, if you leave everything at the statutory level, the people can make compromises between the various interests at stake (though those compromises would be subject to constitutional law-based challenges).

In the last part of the opinion, Justice Thomas talks about the government's role in giving or taking away "dignity." First, he looks at the text: "the Constitution contains no 'dignity' Clause," but more important than that is that government is not the source of dignity. "The government cannot bestow dignity, and it cannot take it away."

Human dignity has long been understood in this country to be innate.... 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.

This reminds me of the old Gerald Ford gaffe about Poland, "There is no Soviet domination of Eastern Europe," by which he meant to say "the Russians would never dominate the Polish spirit." In some uplifting, philosophical sense, we always have the free territory that is the inside of our own mind.

I'm picturing Whitney Houston swanning in — she's alive in my mind — singing: "No matter what they take from me/They can't take away my dignity."

But outside forces can impose indignities. Yes, you're better off finding dignity inside, putting your stock in the dignity that "They can't take away," but the indignities that arrive from the outside are still real. Slavery and internment are indignities. We can say that even as we like to think that those subjected to indignities will remember and treasure their sense of worth. I see the objection to looking to government for your self-esteem, but that doesn't mean that it never makes any sense to say that the government lacks the power to impose indignities on a politically disfavored group.