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.
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.
Instead, 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
Olly, Isaac’s understanding of the US Constitution is akin to a wading pool. He has lived in 2 countries that prosecute comedians, and wants us to be like them.
“You cannot argue someone out of their race or sexual orientation. You can, however, argue someone out of their beliefs.”
Isaac,
That is an absolutely shallow interpretation of the 14th amendment. You’ll recognize the superficial physical characteristics of the person but deny the profound metaphysical characteristics of the soul. Essentially, one has a right to be what can be seen but no right to think. Goodbye First Amendment. Well done!
I did not realize the backward Canadians and French are locking up comedians!! I see why US comedians are standing up to PC. They are the canary in the coal mine.
And where you here people spouting “The greater good of all,” remember those were the words of Mao and Stalin. Ask the Russian and Chines people who lived under “the greater good of all” how that worked! This country is founded on INDIVIDUAL rights. It is the longest living democracy in history.
Much of the pro gay marriage movement was really a pretext for anti religion. One just need read this thread. Being a fair and wise man, JT understands how this ruling and protected class status can be an attack of the 1st Amendment. Ted Olson, an attorney who fought hard w/ David Boies in California to get gay marriage in California, echoes JT’s concerns. Olson believes it a religious right for a Muslim, Christian baker, florists, etc. to not enter into a contract to do business w/ a marriage they find against their religion. YES, if a gay person wants a birthday cake, donuts, etc. the baker must provide them service. Here’s what is so amazing, to me anyway. Obama was anti SSM 3 years ago. Hillary was anti SSM 2 years ago. This is a runaway freight train. The anti religion people here, and elsewhere, have tipped their hand. And, I believe they are overplaying it.
If a person is born black or white or negro or caucasian, there is nothing they can do to change that. This is not a choice but an equal beginning. The laws should support these circumstances equally. This is also true with homosexuality. No one chooses to be homosexual, excluding all the bisexual and youthful exploratory goings on. The degree of persecution of blacks has a far greater history but it is essentially the same thing, people due to no fault of their own being persecuted.
There will always be the overlapping and the fringe elements but that is why we have the courts. The cake baker might be able to field an emotional argument and even tag on some convoluted and/or contradictory connection to a sacred right, as to why their bakery will sell gays cookies but not bake a wedding cake. These arguments are not based on the same level of rights as those belonging to people who are what they are as they were born. These arguments are based on choice of beliefs that may or may not be temporal or even fleeting. You cannot argue someone out of their race or sexual orientation. You can, however, argue someone out of their beliefs.
Regardless of whether the inclusion of gays in the civil condition of marriage is based on dignity or other rights there will always be some gray area. Much of this gray area will be more the making of a point to protect the essential rights and/or dignity of one side over another and less a real threat to the fundamentals of American society. The gays who took the baker, florist, or any other public business to task were not suffering. They could have gone to another store. However, as with the arguments protecting free speech when a rabid Christian threatens to burn a Koran and causes the deaths of innocents, it is not right, not good for anybody, and is tantamount to manslaughter. However, Americans hold the concept of the sacred words higher than the action. The protection of a rabid Christian to demand the deaths, expulsions, or persecutions of all Muslims comes under the right of free speech.
Most other countries place the action and the concept at the same level and deal with it as it affects society and the individual of the moment and circumstances. The rabid Christian threatening to burn the Koran would have been stopped for the greater good of all. Each approach has its advantages and disadvantages.
America has performed in a exemplary manner regarding basic rights as written in the Constitution and as in this case of dignity or whatever. Its governments and institutions have placed the good ahead of a perverted or too peculiar interpretation of words. America has also persecuted and defiled that which was, is, and should always remain good with interpretations of these same words. America has a checkered past, but an evolving societal direction towards the good.
The good is not always found in words carved in stone. Ultimately it comes down to the moment and the interpretation of these words. The words written down, two and half centuries ago were the easy part. There is a higher achievement obtainable at every intersection of the Constitution and the moment.
Issac, I am glad to see that you support banning burning of the US flag and making it a crime to do so. Of course, as you noted it goes against our Constitution, but that is of little concern. So freedom of speech should be limited to only those things that somebody will not take extreme exception to. I guess the American Legion should say that any person who burns the US flag as a means of speech will be shot on sight by its members. That should raise the stakes enough for the courts to ban flag burning in your world.
While I agree with most of Prof Turley’s column and reasoning, I do have to take issue with the idea that gays were denied their right to marriage under the old rules. In fact, millions of gays are married under the current law, only in accordance with the prevailing law of marriage, defined as one man/one woman. Now the right to due process would be denied if the marriage laws required a straightness test and banned gays from marrying a person of the opposite sex. I hope he would agree that using the Loving decision as a basis for this is wrong, since gay marriage had not even been thought of at the time, and I imagine that the SCOTUS back then would have been unanimous is denying that their precedent would apply to gay marriage.At least Warren had the good sense to know that when such a fundamental change such as the Brown vs Topeka decision is handed down that a unanimous decision makes the case for that decision beyond question. Unfortunately, our current justices have no such qualms.
I also agree that this ruling can apply to plural marriages if the wishes of the parties involved, with full disclosure of prior marriage, is the determining factor. As Prof Turley has noted, popularity is a poor guide to formulating laws, so this may well open the door for more litigation from other religious based folks who accept plural marriages as a God given RIGHT.
I do rather like the use of dignity as a basis since that would clearly apply to the denial of due process and dignity of the case we older pilots lost when we were denied cert to the court. It certainly violates dignity when a 30 year captain is forced to the right seat while a 25 yrs old captain tells him how to fly. Not to mention the pay disparity when the young captain gets $100,000/yr and the older pilot is bound by law to earn only $23,000/yr. Then at United, the junior pilots took 80% of the older pilots retirement money as part of the bankruptcy settlement.
Dave,
So when a guy like Wesley Snipes gets behind on his taxes should his marraige get suspened?
Oh State, won’t you give me a Mercedes Benz ?
My friends all drive Porsches, you must make amends.
Did little my lifetime, no Dignity from friends,
So State, won’t you Give me a Mercedes Benz ?
Since when are sex and race concrete qualities? In the last month all that got defenestrated.
http://youtu.be/PLUwNUg4rTA
Based on government policy since BROWN, I do not share in this euphoria. Anti-discrimination laws have always been used as swords as well as shields. The danger with an “equal dignity” rule is that a governing majority has developed mechanisms to hold communities and states to standards of compliance that are based solely on statistical evidence. The class action is perfect for that. Instead of finding discrimination based on real evidence, the DOJ and some state AGs (New Jersey and New York in particular) convince judges to order open-ended oversight of all policy decisions that may have an “impact” on some judicially created standard for non-discrimination. Kennedy’s language invites more of these imaginative court remedies, and probably inflames public resentment of the protected class. But politicians are creative in finding ways to score points with it.
Yes, gay people, we are going to give you a trophy, too! Just for participating!
Squeeky Fromm
Girl Reporter
BarkinDog:
Animals don’t pay taxes, supply explicit consent, or qualify as citizens of any country. Among other reasons. Two people of the same sex, or of different sex, however, who do pay taxes, who do supply consent, and who are citizens of the U.S., have the same ability to marry (ie, to have a marriage certificate recognized by their government) as other pairings already processed and recognized.
Let’s not embed Orwell into upside-down arguments. Hypocrisy-irony overload.
David Barton vs feminist atheist Annie Laurie Gaylor on founding fathers and the constitution. God fearing or godless?
@Beldar,
To many Earthlings, what two males do in bed is just as important to society as what men and women do! This great thinker says it better than most supporters of gay marriage, and all things gay. Here are some excerpts:
But, I’m with you. Two males???
Squeeky Fromm
Girl Reporter
Beldar here: I was off Planet for a while. As an outsider I can understand a marriage between a dog and a human if they are of different sex but two human males???
In the last sentence in my comment above it should read “No Original Framer…. ” not “Nor”.
What is this country coming to? How about “Four Legs Good, Two Legs Bad”? The time has come for the recognition by our state and federal government of a marriage between a human and a dog. In the book Animal Farm the author penned the above phrase in an effort to show that dogs have standing too. But to say that a dog is superior to a human was a bit much. Now to say that the two species are not on an equal footing is too much. Dog was put on Earth to give guidance to Man. That happened on the 8th Day. One does not need to be an Originalist to see that this preceded the original Constitution and the Original thinkers who framed the Original Constitution. The liberty interest in same sex marriage is grounded as well on the often recognized right to privacy or right OF privacy. The word privacy is not underlined in the Bill of Rights but it can be derived quite easily from the First, Second, Third, Fourth, Fifth, Ninth and Fourteenth Amendments. We dont want troops quartered in our homes or dimed in our back yards or nickeled in our attics. We dont want the NSA reading our emails. Penny for your thoughts on that one. Someday the case of Betty Lou Thelma Liz versus North Carolina will get to the Supreme Court. I think Scalia will write a favorable opinion for a unanimous court. One argument will be that if marriage between a human and a dog is not recognized then nor should be one between an Italian and an Englishman. Nor Original Framer would have considered appointing a Supreme Court Justice named Scalia back in those days but Scalia would agree that the times they are a changing and that he was probably saved by the Originalist thinkers who framed the 14th Amendment.
First privacy, and now dignity. What is this country coming to?