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Thomas Missed the Mark on Obergefell

Five years ago, Justice Clarence Thomas made headlines for his dissenting arguments in the landmark LGBT-rights case Obergefell v. Hodges. Thomas’s inflexible understanding of social norms and the Constitution made this so; specifically, his interpretation of the rights afforded to the states through federalism is succinct and asserts that states will have differing opinions on whether the “traditional” norms of marriage are of value to society. This is not controversial, but it is also true that states have the natural right of self-determination to interpret the Constitution’s provisions of “life, liberty, and property” in a way they feel most acceptable. 

Affording the states that right presents a legal quandary. Some states will interpret their obligations to promote liberty to mean that the government ought not infringe on homosexual couples’ right to marriage, while others may prohibit the application of this right, claiming to follow a religious interpretation of marriage that denies the merging of a same-sex couple’s property. When it comes to resolving these claims, Thomas stated that protecting the states’ rights to interpret liberty is far more valuable to a free society than the federal government imposing any one interpretation, regardless of its efficacy or pragmatic value.

The rights of equality and to free association ought to be valued above a state’s right to self-determination. The United States has a long history of valuing the rights of individuals over collective duties. The Supreme Court has upheld the rights of minorities to freely associate against the state’s right to determine school integration in Brown v Board of Education (1954). It has upheld the rights of women to enter the workforce against an employer’s right to freely associate. And, somewhat pertinently, it has upheld the right of interracial couples to marry against the racist sensibilities of social conservatives in Loving v. Virginia (1967). Following this precedent, the 14th Amendment’s Equal Protection Clause ought to be valued above the rights of states to self-determine. According to the principles of federalism, the decree of the federal government overrides the decree of states when promoting the general welfare of the people. Concurrently, the “fundamental right” to marriage can not be denied solely on the basis of group membership of race, gender, or class. Within the use of the term “group membership,” the Court held in Loving that an individual’s choice to freely marry was of greater importance than the social mores of the time—that is, no identification with a group shall be used to deny one’s fundamental right to marry. It is no different 52 years later. When Justice Thomas declared states’ rights of self-determination to be above the right of same-sex marriage, he ironically contradicted the legal precedent and the framers' intent he wishes to preserve. In attempting to protect federalism and its authority to allocate power, Thomas crushed the ability for individuals to set the course of their own lives. And in endorsing a regime in which same-sex couples are not afforded equal rights and equal protections, Thomas’s dissent manifests a cyclical history where conservatives must reluctantly accept modern social beliefs. 

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