During a break on my reporting trip to Ferguson, Missouri this spring, I visited the museum inside the Old Courthouse, a magnificent, green-domed federal-style building that sits in the shadow of the St. Louis Arch. It houses artifacts and displays relating to the Dred Scott case, tried there in 1847; ten years later, in 1857, the United States Supreme Court would hand Scott—an enslaved man suing for freedom for himself and his family—his final judicial defeat. In arguably the worst decision ever handed down by any American court, in words that are displayed today inside that museum in large, bold, white letters, Chief Justice Roger Taney wrote that African Americans were “beings of an inferior order,” so much so that they had “no rights which the white man was bound to respect.”

Taney’s statement is anathema to the very idea of equality. But he asserted that the Founding Fathers, as indicated in the Constitution itself, would have thought the same of people who looked like Scott, or me. In historical terms, Taney wasn’t far off. The Constitution needed correcting, and it wasn’t until the Fourteenth Amendment, ratified in 1868, eleven years after the Scott decision, that this got cleared up.

But I wondered again this morning, as marriage equality became the law of the land, what Constitution Clarence Thomas is reading, and in what America he lives. On Friday, Thomas—a black man who grew up in the Jim Crow South, a man who should know precisely the meaning of equal protection under the law—issued one of four individual written dissents in the case, Obergefell v. Hodges. It begins in the strict constitutionalist vein that Thomas is known for, but broadens to cover not only the Constitution but also the nation as a whole. For Thomas, the decision isn’t so much about laws as it is about principle:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.

Let’s consider this passage literally, and let’s consider the kind of liberty that the “Framers” recognized. The Constitution was ratified in 1787, in a new nation in which the enslavement of kidnapped Africans and their descendants—to say nothing of the abuse, murder, and rape they suffered—was already a national institution. Their notion of liberty didn’t include folks who looked like Dred Scott, me, or Thomas himself; Thomas’s “liberty” wasn’t open to gay or lesbian Americans in that day and age, either.


In a paper written in time for the nation’s bicentennial 39 years ago, Louis Crompton noted that homosexuality was punishable by the death when this country began. Its abolition plodded through the states over the next few decades. (In 1792, Thomas Jefferson, Crompton notes, called for the castration of those found guilty of sodomy in a Virginia bill.) Penalties were reduced to imprisonment in most cases; South Carolina, perennially the last state to act in the name of its most vulnerable citizens, was slowest to change, repealing their death penalty only eight years after the Civil War. To use Thomas’s words, I’d argue, strongly, that all of this constitutes the government stripping away the dignity of those suffering legal punishments for being who they are. 

Thomas, however, appears to define dignity more strictly, as the quality of being worthy of respect. That’s strange to hear coming from a man who, while the head of the Equal Employment Opportunity Commission, sexually harassed Anita Hill and likened criticism of his reprehensible behavior to a “high-tech lynching.” But I’ll allow that the idea of preserving dignity and therefore proving oneself as worthy of respect is an idea Thomas, a high-achieving student who nonetheless chose to study English literature in college to help him shed the burden of his Gullah dialect, is quite familiar with.

What I can’t stomach, however, is Thomas’s tendency to ignore the systemic effects of prejudice, and in the process serve as an agent to foster them. By not recognizing what plagues so many, he allows hatred and ignorance to swell. Thomas clearly wants marginalized people to pull themselves up by the bootstraps, all while he’s committed to taking those same bootstraps away. This is his legacy, a disgraceful sequel to the term of the man he succeeded, Thurgood Marshall. Granted, Thomas sometimes interprets symbols—such as burning crosses or Confederate flags—as offensive. But the actual, institutional bias those symbols promote escapes him. Thomas frequently infuses respectability politics into his rulings, which demonstrates his continued obliviousness to reality: It is not the responsibility of a vulnerable people to convince the powerful they are worth protecting. It is not the duty of the marginalized to prove they have dignity and therefore become worthy of being treated as equals; that task lies squarely across the shoulders of the rulers. And, in this regard, Thomas’s blindness shows. This is a person who, during the demonization of black people in the Reagan era, thought we were the main problem.

He returns to the notion of dignity later in the dissent in a passage that is even more shocking and incorrect. Citing the Declaration of Independence’s “all men are created equal”—a phrase that in an increasingly gender-aware nation, should already raise alarms about a lack of inclusion—he writes

…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.

We live in a nation whose industries, cities, and towns grew out of fertile soil wet with the blood and sweat of slaves. The United States has long been full of unmarked geysers of prejudice, blasting their ignorance on continuously marginalized people—including the LGBTQI Americans who in many ways continue to live, despite this ruling, as second-class citizens. Marriage equality does not close the housing, employment, and healthcare disparities that exist between us cisgender straight folks and those who are not. It is only the beginning of another long march.

We live in a nation where a young white man with a racist manifesto can study the Bible with a group of African Americans and then murder them, and in the aftermath the chattering class will engage in debates about whether a racist act has occurred. We live in a place where Matthew Shepard can be slain for being gay in 1998, and Wyoming, the state where he died, can remain one of five without a hate-crime law nearly two decades later. This is a place where, since its founding, the government has had a strong say over just how much dignity a person is allowed. The right of same-sex couples to marry was one that many straight men were not bound to respect, depending upon their state. There are still many of these men, but they cannot remove the dignity the government has today bestowed.


Dignity may be innate, but that doesn't mean it can't be taken away from you. It can become a two-way street. You can consider yourself worthy of honor or respect, as Oxford defines it, all you wish. But if institutional discrimination deprives you of such basic human rights as health care, education, and the right to marry whomever you love, honor and respect is not afforded you. Sometimes, in the course of history, states and people need to be bound by law to respect you. Relying upon human nature, or the Founders’ supposed intentions is ridiculous when you consider yesteryear. 

Thomas, having lost the argument over marriage equality, chose to offer a pernicious, unsympathetic dissent that gives short shrift to the forces of discrimination and subjugation legalized by government while further emboldening his self mythology, this legendary story he keeps feeding us. Thomas would have you believe that because he himself could survive the indignities forced upon him by Jim Crow—a system of legal discrimination that eventually came to be made illegal, after a variety of Supreme Court decisions very much like today’s ruling—and that somehow, others should be able to endure something similar without the benefit of the very legal recourse that he can deliver from his perch. Using himself as the basis for a legal argument is asinine. Doing so in the service of discrimination is inexcusable.