Justice Thomas Dissents, but I Fixed It for You

Because I read speculative fiction, I spent the weekend wondering how Justice Thomas’ dissent would read if the petitioners were Christians seeking to have their “religious ceremony” legally recognized as a binding contract before an honestly secular government.

[My fixes edits are bolded.]

…Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in religious ceremonies. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold religious ceremonies in States that recognize religious ceremonies and limited liability partnerships in all States. 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.

Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to participate in religious ceremonies, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in limited liability partnerships, to hold themselves out as LLC partners, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of limited liability partnerships through private legal means, such as wills, trusts, and powers of attorney.

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 religious ceremonies —on state recognized contracts, death certificates, or other official forms.

And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a limited liability partner, compensation if a limited liability partner 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.

To the extent that the Framers would have recognized a natural right to religious ceremonies that fell within the broader definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—entering contracts, participating in limited liability partnerships, raising children, and otherwise enjoying the society of one’s partner—without governmental interference. At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke §77, at 39; see also J. Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand religious ceremonies when they say that it would “mean little” absent governmental recognition. Brief for Petitioners in No. 14– 556, p. 33.

Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to religious ceremonies, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with religious ceremonies.

Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecuted for participating in religious ceremonies in the District of Columbia and cohabiting in Virginia, id.,at 2–3.  They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.

In a similar vein, Zablocki v. Redhail , 434 U. S. 374 (1978), involved a man who was prohibited, on pain of criminal penalty, from “participating in religious ceremonies in Wisconsin or elsewhere” because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U. S. 78 (1987), involved state inmates who were prohibited from participating in religious ceremonies without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental recognition and benefits associated with limited liability partnerships.

In a concession to petitioners’ misconception of liberty, the majority characterizes petitioners’ suit as a quest to “find . . . liberty by religious ceremonies and having their religious ceremonies deemed lawful on the same terms and conditions as limited liability partnerships between persons.” Ante, at 2.

But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority’s “better informed understanding of how constitutional imperatives define . . .liberty,” ante, at 19,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’” Reid v. Covert, 354 U. S. 1, 9 (1957) (plurality opinion), not “Thou shalt provides.”

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