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
DBQ, The most intolerant people in this country are liberals. Taking flags, sex, race, out of their intolerant views. Look @ something as private and personal as breast feeding. There are many liberal women who PROUDLY call themselves “Breast Feeding Nazi’s.” They shame, intimidate and mock women who don’t breast feed. I was sitting in a restaurant not long ago. A woman was quietly feeding her baby w/ a bottle. Two hairy legged, hairy pitted, liberal women walked over and just started lecturing this quiet, introverted mother as she fed her baby. Liberals are right, you are wrong, end of discussion.
You’re older than I am DBQ, I think you might just slip on that banana peel before me, but who knows? Or you may accidentally shoot yourself with one of your numerous guns….
Amazing. The ability to generalize and stereotype old people, young people, Christians and just about everyone else and have no self awareness whatsoever. Megalomania
I have no problem with people our age group dying off as nature dictates, DBQ. We really can do very little to stop it, now can we?
Nope, we can’t. You go first.
I am an older person who may just be more tolerant than many in my age group. Squeeky may be younger than I am, but she holds viewpoints much more common to a much older group of people who are known to be quite intolerant. We humans are funny that way, some are young at heart and some are old before their time. I have no problem with people our age group dying off as nature dictates, DBQ. We really can do very little to stop it, now can we?
While I don’t necessarily agree with Squeeky on some of her views, it is hilarious to see one OLD person lecturing a YOUNG person about the older folks dying off and their old views going away. Irony. 😀
Well Squeeky what you don’t realize is this: Your extreme views are not shared by most Americans. You hold the abberant attitude in our greater society. As older folks die off the young people who consider your views reprehensible are replacing them the old haters and hangers on. The attitude you have toward homosexuals and other minorities will die a natural death, as it should.
Squeeky w/ the coup de grace! But, Chucky never dies. LOL!
I.Annie in an Argument about The Danger of Cigarettes
A Brief One Scene Play by Squeeky Fromm
Squeeky Cigarettes really suck! They cause lung cancer and stuff!
I.Annie You Idiot! People who don’t smoke get lung cancer, too!
Squeeky Yeah, but that’s the norm for cigarette smokers! About 20% of them get it! And only a couple of percent of non-smokers!
I.Annie You foul, contemptible BIGOT!!! Here’s a picture of a non-smoker who got lung cancer!
Squeeky Why are you calling me names? I am a dear, sweet innocent child, who would never say mean things about people. Plus, lung cancer goes along with smoking! You can’t deny the link!
I.Annie You swine! You pesky kid! Here’s another picture of a non-smoker with lung cancer! And what about FAT people! They die, too! If they smoked, they wouldn’t be fat, and they wouldn’t die! So There!
Squeeky Oh, you have hurt my sensitive feelings with your mean comments! What I said is true! Smoking kills you! It is just as plain as the nose on your face!
I.AnnieDon’t act innocent with me, you black-hearted witch!!! Here’s another picture of a non-smoker with lung cancer! Max-1, help! Can you grab some more pictures for me!
Squeeky
And thus we see the truth revealed,
The fate of argument is sealed!
Truth becomes a thing uncanny,
When one argues with I. Annie.
Now, the curtain falls and Squeeky curtsies before the audience,to massive applause while I.Annie “gives them the bird”, with both hands, and curses!
Cue, tomatoes, and rotten eggs for her!
Finis.
Squeeky Fromm
Girl Reporter
I do not think people who do own a bakery should be forced to enter into a contract, to make a special cake for a gay wedding, if they have religious objections.
Exactly. Being forced to enter into a separate contract from your day to day business to do work that is against your religious scruples and for an event which you feel is sinful. Entering into a contract requires TWO willing parties who agree on a price and product of the labor. They used to have a name for this unwilling forced labor…..slavery.
JT said; 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?
No. The right to dignity is due to BOTH parties. When one person’s rights trample all over the rights of others who gets to win? The slave owner/gays demanding that you do the work or else….. or the rebellious slave/baker/flower arranger/photographer who doesn’t want to be placed into involuntary servitude?
Should society be intolerant of green eyed people, red haired people, freckled people? If one believes that most homosexual people are born that way, why then would one hold their genetic/ developmental differences against them? Seems very mean spirited.
pinandpuller
You nailed it, “I don’t think.” This represents the issue. It is an opinion, one that can change from ‘Heller’ to the next time it makes it to a different Supreme Court. It has everything to do with the time when it was written. That might take some thinking.
Isaac,
I’m sure the Founding Fathers never forsaw a sky full of drones where we might fight in the shade.
This was a sane and substantive thread until the clowns arrived.
Squeeky
“First of all, I have known many gays. Early on in the sixties and up until recently, no one would choose for that torment in life if it was a choice. I will not get into the science behind the condition but it has been studied, researched, and published among those who are not so much inclined to make opinions but to allow the findings to speak for them, that homosexuality, in its complete sense, is a physiological condition.”
It is a combination of my opinion based on what I have experienced in observation and what I have read that has been published in scientific and medical journals. I make no comparisons to autistic or other physiological conditions. That is your rant.
Does that answer your question?
I did put in a reference to those that build their cases on aberrations and anomalies. Did that sail by you not understood?
Time for a poem?
@pinandpuller
I tend to agree with you. I think there is an underlying physical propensity, maybe a brain wiring screw-up, that gets reinforced as the kid gets older. When you have a reward system like an org*sm to provide positive reinforcement, the problem gets worse. That is my OPINION. Science doesn’t really know what causes the stuff, yet.
Where I think society goes wrong is that’s one thing to be tolerant of somebody with a problem, and entirely another thing to celebrate the problem, or make the other 98% of society conform to the 2% aberrant behavior.
Squeeky Fromm
Girl reporter
http://youtu.be/Gwi9mmoirNE
Lovely dignified wedding. Why so hateful? Why does their love bother you so much?
I need to keep making this point because some folks are stupid..err, forgetful. I do not like organized religion, but I respect people who do. I am not anti or pro gay. I do not care who, or what you choose to have sex w/, as long as it’s not children. I respect people who do not want to take part in a ceremony that is considered wrong by their religion. If I owned a bakery, I would make cakes for gay weddings. I do not think people who do own a bakery should be forced to enter into a contract, to make a special cake for a gay wedding, if they have religious objections.
Nick
As with much of what you post, you have it backwards. Homosexuality is not attacking religion. Many and perhaps even a majority of gays are religious and would love to be accepted into this or that denomination. It is a fact that the major accomplishments of gays have been centered around having different denominations allow them to be part of their communities. Catholicism has, albeit perversely, been a refuge for gays for centuries.
It would be more correct to state that if anything gays are protecting themselves from the hypocritical onslaughts by the last dinosaurs of religion. At one time it was all religion but religion as with society being manmade, evolves and perfects itself. We are witnessing the death throws of racism, bigotry, and other perversions. When racism, bigotry, and perversion are the norm, dissent does not make such a splash.
Vis a vis my depth of understanding of the Constitution. It is proven constantly throughout this great nation as well as other great nations but more in the US, that it is not a question of depth but perversion due to ambiguity. The intentions of the founders of a society as written at the beginning of that experiment must not stay ambiguous as they are due to time and circumstance but must be clarified in the face of the society of the present. We have that problem with the 2nd amendment where some conveniently leave out the ‘well regulated militia’ part of the statement and ignore the differences between frontier life and today.
You can rant and rail all you want but the further you stray into lame a** arguments pertaining to Canada and France, two equally if not more free societies, the closer you get to some pet peeve.
Take note there is what is written and what is performed. A country can have the boldest statements but the poorest executions of that which it holds sacred.
Re 2nd Ammendment and “well regulated militia”
The supreme court already addressed that in Heller.
And I don’t think the 2nd Ammendment had anything to do with living on the frontier any more than the 14th had to do with gay marraige.
http://happyweddingwishes.com/wp-content/uploads/2012/04/Superhero-Wedding-Themes2.jpg
@Isaac
Sooo, you’re saying gay people are born that way, the same as autistic and retarded people are born that way? And is that an OPINION, or FACT. Because your explanation kind of rambled.
Squeeky Fromm
Girl Reporter
Squeeky,
I think its more like diabetes. You can be born with a propensity for it but if you don’t fill your diet with gay wedding cakes and salty snacks you might live past 45.
@I.Annie
Same old illogical tricks! Oh lookee, I found a rare example that makes your argument look bad!
I haven’t seen crowds of old geezers grooms and scantily clad brides out on parade anywhere. Because they are the exception. I have seen my fair share of looney tune gays on parade, and their complete lack of dignity and revelry in weird sex is the norm. In cities all across the country. Deal with reality.
Squeeky Fromm
Girl Reporter