Clarence Thomas, gay marriage and the Declaration of Independence

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Not surprisingly, the U.S. Supreme Court's landmark 5-4 ruling that the Constitution guarantees a right to same-sex marriage has generated a lot of reaction. What is surprising, however, is that, as far as I can tell, no one has commented on how prominent a role the Declaration of Independence played in Justice Clarence Thomas's dissenting opinion in the case. Never before has a Supreme Court justice cited the Declaration so frequently, and it is important to understand the reason Thomas did so, especially as the nation celebrates the anniversary of our founding document on the Fourth of July.

Justice Thomas opened and closed his opinion by invoking the Declaration, and the bulk of his dissent was devoted to explaining why: Because, in his judgment, "Our Constitution — like the Declaration of Independence before it — was predicated on a simple truth: One's liberty, not to mention one's dignity, was something to be shielded from — not provided by — the State. Today's decision casts that truth aside."

Thomas's commitment to the Declaration of Independence traces to his days as chairman of the U.S. Equal Employment Opportunity Commission during the Reagan Administration. There, he immersed himself in literature about the nation's founding document to try to find solutions to the problem of discrimination in America. His critics strived during his Supreme Court confirmation process to mischaracterize his views about it.

Harvard Law School Professor Laurence Tribe, for example, wrote in a scathing New York Times op-ed that Thomas would use the Declaration to turn back the clock to the darkest days of the nation's history: "Most conservatives criticize the judiciary for expanding its powers, 'creating' rights rather than 'interpreting' the Constitution. … Clarence Thomas, judging from his speeches and scholarly writings, seems instead to believe judges should enforce the Founders' natural law philosophy — the inalienable rights 'given man by his Creator' — which he maintains is revealed most completely in the Declaration of Independence."