Vanity thought #1412. “Supreme” Justice 13

Next dissenting opinion is quite long but it offers a somewhat different perspective. The ruling is, of course, seen as unconstitutional but not because the court went beyond its assigned powers but because it interpreted the constitution totally wrong. I don’t know if anyone could refute this particular argument, it seems pretty solid to me.

The main thrust of it is that the court misunderstood liberty not as freedom from government action but as entitlement to government benefits. Maybe this interpretation of what liberty means is not the only correct one, but in any case liberty is certainly not the same as the right to claim benefits.

Second point of this dissent is that human dignity is innate and not bestowed by the government, as the court mistakenly assumed. On the surface it seems correct but when looking at it in detail it becomes counterintuitive, only to emerge as logically consistent in the end again.

Going through the judgment for nearly two weeks now I can’t count the number of times I’ve seen “Due Process” phrase and I never understood what it really meant. This dissent is the only place that explains it in the most simple, straightforward way – the constitution “guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property.”

Even if the phrase is meaningless for us, the explanation itself is worth admiring in its brilliant simplicity. Somehow none of the judges who mentioned “due process” before has captured its essence and exposed majority’s folly here. No one is going to deprive same-sex couples of life, liberty, or property, and therefore court’s reliance of “due process” in this case is totally misplaced.

The dissent then dismantles the petitioners claim step by step, methodically getting back to the definition of liberty. It spends quite a bit of space on explaining where the American notion of liberty came from and how it was always understood as freedom from governmental restrictions. It all starts from Magna Carta, apparently.

This year marks an 800th anniversary of Magna Carta and so it quite often gets into the media. We’ve always been taught that Magna Carta is the first democratic constitution, a contract between the rulers and the ruled, guaranteeing freedoms and liberties. It’s only this year I, personally, learned that it lasted only a few weeks and was abandoned when neither the ruler not the ruled wanted to follow it anymore. So much for cornerstone of democracy.

How can they call these rights “universal”? If they were universal they wouldn’t need enforcing. Gravity is universal, no one going to bomb anyone to restore the law of gravity, but rights like freedom of speech clearly are not part of the universal order, they depend entirely on whoever is in power at the moment, on how they interpret them, and on how much energy and resources they can commit to maintaining (or suppressing) them.

This is in addition to the argument I made here before – it’s not freedom of speech they seek, it’s freedom from negative reactions. Karma is universal but their attempts to circumvent it are not. So, their Magna Carta is only an ideal and only a one side of universal duality, like happiness or distress. We wish that happiness lasted forever but it’s not possible and we wish that ideals of Magna Carta stood forever, too, but it’s similarly impossible, because karma always brings reactions and sometimes they are negative, no way of getting around it. They can make any contracts they like and refer to them as much as they want, karma doesn’t care.

Anyway, the dissent slowly builds up the case of compelling historical precedents to interpret liberty as freedom from government restrictions, or, as it quotes from earlier court interpretations, the meaning as basic as “freedom from physical restraint”. By citing even more scholars and early American leaders the dissent argues for “negative liberty” understanding – freedom from, not freedom to.

The dissent then states the obvious – the petitioners, same-sex couples, haven’t been restricted in any way in their behavior. No one forbids their cohabiting, no one forbids them behave as if they were married, no one forbids them raise children and so on. The States that do not recognize SSM do not tell them what to do or what not to do, their liberty is intact, they have nothing to complain about.

What they really want, however, is government benefits offered to married straight people: “Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government.” Italics are in the original, too, and it’s an important point in light of understanding of liberty as freedom from government.

If Framers of the Constitution, the dissent says, recognized the right to marriage, this right “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 — making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse — without governmental interference.” This right would predate the government, not flow from it, as in people have it because of the government.

The dissent then goes thought precedents cited by the majority and shows how in each case people were actually physically restricted in their behavior. Interracial couple, for example, was sentenced to a year in prison (suspended) for cohabiting in a state where interracial marriage wasn’t recognized.

The man who was behind on his child support payments was prohibited from marrying and there were criminal penalties involved. Prison inmates also couldn’t marry without permission and cooperation of prison authorities, their liberty was clearly restricted. In all those cases the court restored liberty which was unfairly lost, but nothing was lost in SSM case and so those precedents are irrelevant.

The dissent then gives a warning about religious freedoms, even though it doesn’t enumerate potential areas of conflict. It observes that in the US marriage is not only a governmental institution but a religious institution as well, and if they go by starkly different definitions clashes are inevitable.

The dissent also stresses that religious freedom is much more than the ability to teach principles central to people’s faith, “guaranteed” by the majority, but it is also a freedom to ACT on those principles and the scope of that liberty is related to civil restraints, now established by the court rather than through democratic legislation. Doesn’t sound very convincing to me, perhaps it’s a bit alarmist, but the majority clearly haven’t thought this through either.

I’ll leave the argument about dignity, how it is inherent rather than granted by the government, for another day.

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