Supreme Court Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.

Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.

Here is the Sunday column:

Like many people at the Supreme Court last month, I was deeply moved by the historic ruling in Obergefell v. Hodges recognizing the constitutional right of same-sex couples to marry. At such a transcendent moment, it is difficult to do anything but celebrate the triumph of what Justice Anthony Kennedy called the “dignity” and “profound hopes and aspirations” of the many loving couples who had been denied the recognition of marriage.

Justice Kennedy
Justice Kennedy
But Kennedy’s moving language was more than just aspirational thoughts on dignity. He found a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the “dignity” of marriage. The uncertain implications of that right should be a concern not just for conservatives but also for civil libertarians. While Obergefell clearly increases the liberty of a historically oppressed people, the reasoning behind it, if not carefully defined, could prove parasitic or invasive to other rights. Beware the law of unintended constitutional consequences.

For the record, I have long advocated the recognition of same-sex marriage. But the most direct way the justices could have arrived at their conclusion would have been to rely on the 14th Amendment’s equal protection clause. It, along with the civil rights legislation of the 1960s, holds that all citizens are entitled to the same treatment under the law, no matter their race, sex, religion or other attributes known as “protected classes.” Kennedy and his allies could have added “sexual orientation” to the list of protected classes, making the denial of marriage licenses an act of illegal discrimination. This approach would also have clarified the standard in a host of other areas, such as employment discrimination and refusal of public accommodations.

220px-Clarence_ThomasInstead, Kennedy fashioned the opinion around another part of the 14th Amendment, holding that denial of marriage licenses infringed on the liberty of gay men and women by restricting their right to due process. As Justice Clarence Thomas correctly pointed out, liberty under the Constitution has largely been defined as protection against physical restraints or broader government interference — “not as a right to a particular governmental entitlement.” While Kennedy makes a powerful case for an expansive new view of due process, he extends the concept of liberty far beyond prior decisions.

In reality, he has been building to this moment for years, culminating in what might now be called a right to dignity. In his 1992 Casey decision, he upheld Roe v. Wade on the basis of “personal dignity and autonomy [that] are central to the liberty protected by the Fourteenth Amendment.” Kennedy wove this concept of protected dignity through a series of cases, from gay rights to prison lawsuits, including his historic 2003 Lawrence decision striking down the criminalization of homosexuality. These rulings on liberty peaked with Obergefell, which he described as an effort of the petitioners to secure “equal dignity in the eyes of the law.” He used the word “dignity” almost a dozen times in his decision and laid down a jurisprudential haymaker: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

These words resonate with many of us, but it is not clear what a right to dignity portends. As Justice Antonin Scalia predicted in an earlier dissent to Lawrence, it signals “the end of all morals legislation.” Some of us have long argued for precisely that result, but the use of a dignity right as a vehicle presents a new, unexpected element, since it may exist in tension with the right to free speech or free exercise of religion.

Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify. It certainly appears as if Obergefell extends this protection because same-sex unions are now deemed acceptable by the majority. The courts may not be so readily inclined to find that other loving relationships are, to quote the opinion, a “keystone of the Nation’s social order” when they take less-orthodox forms. But popularity hardly seems like a proper legal guide to whether a relationship is dignified.

With the emergence of this new right, we must now determine how it is balanced against other rights and how far it extends. For example, it is clearly undignified for a gay couple to be denied a wedding cake with a homosexual theme. Yet for a Christian or Muslim baker, it might also feel undignified to be forced to prepare an image celebrating same-sex marriage. Should the right to dignity trump free speech or free exercise?

Other groups outside the lesbian, gay, bisexual and transgender community could invoke this precedent, since the reasoning does not concern a protected sexual-orientation class but rather a citizen’s right to dignity. Could employees challenge workplace dress codes as intruding upon their right to “define and express their identity”? Could those subject to college admissions preferences raise claims that race or gender classifications deny their individual effort to “define and express their identity”? Kennedy’s approach has only deepened the uncertainty over how courts will handle such cases.

Some of the greatest attacks on dignity are often found in the exercise of free speech. Europe and Canada, for example, protect broader dignity rights through laws that penalize statements deemed degrading, hateful or insulting to different groups, including homosexuals. In Britain, for example, a Baptist street preacher was charged with causing “harassment, alarm or distress” by stating on a street corner that he viewed homosexuality to be a sin. In Canada, comedian Guy Earle was found guilty of violating the human rights of a lesbian couple after he got into a trash-talking exchange during an open-mike night at a nightclub. In France, comedian Dieudonné M’Bala M’Bala has been arrested and prosecuted for jokes deemed anti-Semitic. In Greece, another jokester was arrested for insulting a famous monk by making his name sound like a pasta dish. In Italy, comedian Sabina Guzzanti was investigated for joking that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big [gay] devils.”

In the United States, such efforts have been largely stymied by the express protection of free speech in the First Amendment and expansive interpretations by the courts. Nevertheless, pressure is rising to criminalize forms of “hate speech” or speech that is viewed as discriminatory or degrading to certain groups. Universities increasingly warn students and faculty not just against comments deemed racist but also against an ever-expanding list of “microaggressions,” such as the use of “melting pot” and other terms considered insensitive. This year, a Montana prosecutor sought to punish speech that exposes religious, racial or other groups “to hatred, contempt, ridicule, degradation, or disgrace.” Such laws could now be justified as protecting the dignity rights of groups and balancing the “danger” of free speech.

Obergefell would be a tragic irony if it succeeded in finally closing the door on morality and speech codes only to introduce an equally ill-defined dignity code. Both involve majoritarian values, enforced by the government, regarding what is acceptable and protectable. Substituting compulsory morality with compulsory liberalism simply shifts the burden of coercive state power from one group to another.

None of these concerns take away from the euphoria of this liberating moment. And the justices can certainly tailor their new right in the coming years. But if we are to protect the dignity of all citizens, we need to be careful that dignity is not simply a new way for the majority to decide who belongs and who does not in our “Nation’s social order.”

Twitter: @JonathanTurley

Washington Post (Sunday) July 5, 2015


  1. Law is made to the reason of common good, but the ‘passion’ inclines us, not to the common good, but to our own private good. But ‘passion’ has not the nature of law as it departs from reason, Therefore the judgement of the court assenting to the passion has not the law of nature nor of reason behind it.

    Just Some Guy

  2. Just Some Guy: “Loving v. Virginia in all account was a case about Eugenics. AKA, the superiority of the Pure Blood race which is a thing of two parts. First part being, with selective breeding undesirable traits can be removed from the genetic code. Second part is those offspring found to contain the undesirable become themselves undesirable. As the cost of the second is too high, thus a falsity, the falsity in both cases is true.” Your attempt to distinguish Loving v. Virginia slams right into the Equal Protection Clause of the 14th Amendment when it comes to same-sex marriage in my opinion. If you believe that marriage can only be about reproduction, then your basis can only be Judeo-Christian formulated, and we know that government has no authority to prescribe marriage on that basis for the Free Exercise and Due Process Clauses.

    davidm2575: “The purpose of genitalia in humans is to reproduce.” But is the purpose of marriage to reproduce? Obviously not always, as I. Annie points out. Should we now have the licensing authority inquire as to the intent of the marriage? ‘Madam, is your intention to have children or just stoke the fire down below?’

    Finally, if it’s tradition that has you thinking that marriage can only be between a man and a woman, it seems to me that erroneously characterizing homosexuality as criminal resulted in the tradition.

    At any rate, I appreciate your well-considered thoughts.

    1. stevegroen wrote: “If you believe that marriage can only be about reproduction, then your basis can only be Judeo-Christian formulated, and we know that government has no authority to prescribe marriage on that basis for the Free Exercise and Due Process Clauses.”

      I did not say marriage can ONLY be about reproduction. I outlined two primary factors in marriage that do not exist in same sex unions: 1) gender diversity and the complementary factor of the male needing the female to complete him as a person and the female needing the male to complete her, and 2) reproduction. Either of these satisfy the need for marriage, but same sex unions eliminate both from our understanding of the institution of marriage.

      As for the basis for marriage being ONLY Judeo-Christian formulated, I disagree. Marriage is simply a logical institution that requires no divine revelation from God to formulate. Natural law is sufficient to bring it about. When it comes to reproduction, it takes a lot of energy and time to raise children. In non-religious societies, even they naturally evolve toward the utility of marriage because of the new relationships formed by a union that results in children. It is especially advantageous for the female to secure the male to help with child rearing. Parents of the female likewise would favor this, hence the evolution of arranged marriages. Would you want your daughters just shacking up with whoever, having multiple babies out of wedlock, nobody knowing the identity of the father of each child?

      I wonder how many arranged marriages of same sex unions will be done? I doubt it will ever happen because same sex unions don’t have the same motivations as opposite sex unions. They are not equal.

  3. Davidm2575 wrote: “Set aside the Bible and God for a moment, and just use logic. The purpose of genitalia in humans is to reproduce.”

    Setting aside the Bible, huh? The truth is, you can’t. Actually genitalia have no “purpose” other than what they have evolved to do. Many people do not marry or enter into any interpersonal relationship; yet they often use their genitalia for masturbation.

    “While there might be pleasure associated with the behavioral drive to reproduce, that is not the function of genitalia.”

    Are you sure you’re setting aside the Bible? Pleasure is one of the main drives toward having sex; pregnancy may be considered a side effect in many cases.

    “Genitalia are complementary in the sexes specifically purposed to relate to each other in a specific way to create a new individual.”

    Gosh, that sounds like you think there’s some vast, overarching overlord who’s given “genitalia” a “purpose,” when in fact, the human reproductive system is simply a product of millions of years of evolution, and it’s come to the point in the evolution of human **intelligence** that humans can decide either not to procreate by not having sex and/or masturbating—a decision which less intelligent creatures are unable to make, since their reproduction drives are instinctual—or to have sex while using birth control so no pregnancy results. Or are you now in favor of denying humans the ability to use birth control?

    “The only purpose in a same sex relationship is pleasure.”

    Uh-oh; there’s that “purpose” again that you claim has nothing to do with either the Bible or God.

    “They engage in sex simply to satisfy lust. There is no purpose to ejaculation or orgasm other than pleasure. No new individuals are created.”

    Great! If there’s one thing we don’t need, it’s more hungry mouths to feed our limited resources. I’m all for everyone “engag[ing] in sex simply to satisfy lust” and “ejaculat[ing] or orgasm[ing] simply for “pleasure.” Many won’t, of course; they actually want to have children—but now that same-sex marriage is legal, I guess that’s all down the tubes.

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