Justice Thomas: Obergefell v Hodges Threatens Religious Liberty

As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commen- taries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.

Both of the Constitution’s Due Process Clauses reach back to Magna Carta. See Davidson v. New Orleans, 96 U. S. 97, 101–102 (1878). Chapter 39 of the original Magna Carta provided, “No free man shall be taken, im- prisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Magna Carta, ch. 39, in A. Howard, Magna Carta: Text and Commentary 43 (1964). Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: “No freeman shall be taken, or imprisoned, or be disseised of his free- hold, or liberties, or free customs, or be outlawed, or ex- iled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land.” 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words “by the law of the land” to mean the same thing as “by due proces of the common law.” Id., at 50.

After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid., William Blackstone referred to this provision as protecting the “absolute rights of every Englishman.” Blackstone 123. And he formu- lated those absolute rights as “the right of personal secu- rity,” which included the right to life; “the right of personal liberty”; and “the right of private property.” Id., at 125. He defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” Id., at 125, 130.


Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.

The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422– 1425 (1990). When they arrived, they created their own havens for religious practice. Ibid. Many of these havens were initially homogenous communities with established religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Id., at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id., at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Reli- gious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.; Conn. Gen. Stat. §52–571b (2015).

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so ful- filling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

Although our Constitution provides some protection against such governmental restrictions on religious prac- tices, the People have long elected to afford broader protections than this Court’s constitutional precedents man- date. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional defi- nition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with poten- tially ruinous consequences for religious liberty.

—Justice Clarence Thomas dissenting in Obergefell v. Hodges (2015), 4–5, 14–16.


  1. Forgive my cynicism, but I suspect that the majority of the SCOTUS are hoping for far more work for their fellow Constitutional lawyers–and I salute Justices Thomas and Scalia.

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