Rights and Protections -or- Easy on the Analogies, There, Chief

Supreme Court Justice Clarence Thomas has taken some pretty serious body shots from his critics, during his two and a half decades in that job.

In January 2013, several media outlets reported on his remarks from the bench. Not so much their content, though, as the fact that he had actually made remarks at all. It had been a month shy of seven years since he had spoken at all during Supreme Court oral arguments. “A study of transcripts by Timothy Johnson of the University of Minnesota,” reported CNN, “found in the past four decades, no justice besides Thomas had failed to speak at least once during an entire 12-month term.”

Speaking (!) as a shy person, I may not wish to assess someone’s intelligence or engagement based solely on the frequency of his or her utterances. That way might lead to hypocrisy. There are people who have impressed me greatly (or, in some cases, frankly unnerved me) during my life who have spoken very infrequently, or concisely, and who have done a lot more listening than blabbing.

And, doing a little digging, I discovered an interesting and relevant tidbit: Justice Thomas spoke the Gullah language, not English, during his childhood near Savannah, Georgia. When he attended the College of the Holy Cross, Thomas realized that his speech still sounded unpolished, despite having been drilled in English grammar at school, and chose to major in English literature “to conquer the language”.

Recognizing that childhood experiences often have a lifelong effect on a person, I can see my way to excusing a certain residual reticence on his part. Historically, I myself have been much more comfortable sending an eMail to a person or company than picking up the phone and making a cold call. I can do public speaking; but I have to kinda rev myself up for it.

The usual verbosity of this blog, in fact, might lead a reader to think that verbosity pervades my whole life. The reader would be very wrong.

I’m sure I’m not the first person to recognize writing as an easier environment in which to organize one’s thoughts. And if I were a Supreme Court justice, with my dissents and decisions and such being in the public record, potentially to be pored over by legal and non-legal minds for many ensuing decades … well, I’d want to do a few drafts before doing the Supreme Court equivalent of hitting “send”. And I think I’m careful with this blog!…

So I’m inclined to read one of Justice Thomas’ bits of writing, from one of this week’s decisions, with some chin-scratching of my own.

Today, the Supreme Court ruled 6-3 that states’ bans on same-sex marriage violated the Fourteenth Amendment to the US Constitution. Justice Thomas was one of the three dissenting judges.

In his dissent, Thomas wrote:

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. … The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

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. The government cannot bestow dignity, and it cannot take it away.

Objection, Your Honor: … human dignity cannot be taken away by a government? Those held in internment camps do not lose their dignity because a government confines them?

Counsel wishes to enter into evidence: perhaps the McCarthy hearings in the 1950s? … Or perhaps the Christians and the lions engaging in an afternoon tilt on a beautiful Rome day in the Colosseum? … Or perhaps Birmingham, Alabama public safety commissioner “Bull” Connor’s 1963 use of fire hoses and police attack dogs against civil rights protestors, including their children, to enforce racial segregation? … Or, with my profuse apologies for the invocation of Godwin’s Law, but … Auschwitz?

Also: objection, Your Honor: … slaves did not lose their dignity because the government allowed them to be enslaved?

Counsel wishes to enter into evidence: the idea that if someone is owned by someone else, regardless of whether a government has stepped in and said “hold it” … the person who is owned has by definition lost at least some of their dignity, regardless of whether their owner “treats them well”.

I dunno, maybe I need to brush up on my definition of “dignity” … but I don’t think so.

Finally, and this is the crux of the decision … so, objection, Your Honor: … those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits?

Counsel wishes to place this into evidence:

Until today, there were same-sex couples that wished to be married, went to their local government office to try to secure a marriage license, so that they could be registered as legally committed to each other (and thereby enjoy the same rights and protections that “straight” couples have always enjoyed – including those related to social security, tax law, health care, hospital visitations, child custody, and plain ol’ public acceptance and recognition of a committed personal relationship) – and were refused by some local-government employee who took it upon themselves to pass judgment upon them for personal or religious reasons, or our-state-law-still-bans-this-sort-of-thing reasons, or no very damn good reason at all.

And they probably felt like, in fact were treated like, second-class citizens.

That’s not an example of a government contributing to their loss of dignity?

Counsel wishes to suggest, Your Honor, that you have not exhibited the empathy for your fellow human beings (those who wish to enjoy the same benefits of marriage – not more, but the same benefits – and have the same opportunity to screw marriage up) that any human being ought to be capable of showing another human being.

Counsel also wishes to suggest – may it please the Court – that if the Justice is going to utilize analogies, that in the future he ought to find some that most of the good and decent people that I know wouldn’t sadly shake their heads at.

 

“Analogies, it is true, decide nothing, but they can make one feel more at home.” –Sigmund Freud, The Essentials of Psycho-Analysis