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
A substantive discussion ended @ 2:25p. There are NUMEROUS threads w/ the same pathology.
markernes, I taught high school history, and the Constitution was taught in every class I had, whether it was in the curriculum or not. But, I’m secure enough to know there are many people who know the Constitution better than I. You just ain’t one of those people.
“Olly dearest, sometimes a picture is worth a thousand words.”
I hope Isaac is following this.
Aunt Thelma and her friend Louise? No they were heterosexual I believe.
markkernes,
None of us should be compelled to violate our conscience where that conscience does not infringe that of others. The governments first duty is to protect the right of conscience equally and if it has ruled that includes this issue of marriage then so be it. Up to that point no infringement of the right of conscience has been affected but the concern for the Christian is it won’t end there. The law states other forms of marriage other than between one man and one woman shall be legal. Again, so be it. Will the law extend beyond its authority and force others to violate their conscience to be active participants in this new definition of marriage? Shall some couple’s “dignified” same-sex marriage be considered more equal than another individuals “dignified” opposition to that wedding? In a free society and free market, it is hardly dignified to force anyone against their conscience to facilitate a same-sex marriage when there exists businesses willing to accommodate them.
@I.Annie
I think I have heard of those two women in your extended family. Didn’t they drive off a cliff in a car or something???
Squeeky Fromm
Girl Reporter
Pinandpuller,
I know of a young woman in our extended family that faked it for her very strict Catholic family, was married for a year, hated it, hated herself, her life and ran away with her female lover, who she has been with for the last 10 years now. It happens, the true sexual identity usually wins out, sometimes even after years.
Olly dearest, sometimes a picture is worth a thousand words. It doesn’t do your side any favors calling others fools, we are more polite and just think it.
Inga/Annie,
I understand why you often limit your posts to pictures; as Lincoln said, “Better to remain silent and be thought a fool than to speak out and remove all doubt.”
Sorry, Nick, but I can read the Constitution (which, after all, was meant to be the PEOPLE’S DOCUMENT) as clearly as anyone. Sorry you can’t.
http://i2.cdn.turner.com/cnn/dam/assets/130630103950-02-gay-weddings-0630-horizontal-gallery.jpg
Now how can you be grossed out with these two old people kissing? Tell me how these two old people kissing are different, better, more loving?
https://cbs931jackfm.files.wordpress.com/2013/02/kissing.jpg?w=400
markernes, You’ll excuse me and provide me w/ the dignity of choice on whom I consider a mentor on the Constitution. JT wins for me. Not even close. If it’s porn industry, you are my go to guy.
If SCOTUS can pretend words don’t mean what they say then that would explain why the definition of BIGOT only applies to the expressed conscience of Christians and not those intolerant of that conscience. The blatant hypocrisy is astounding but don’t let that get in the way of a sinister agenda.
Wow, Olly: So if you’re put off by people who are bigoted against gays, and at the same time standing up for the rights of gays, you’re bigoted? That’s almost funny!
Wow, for someone who doesn’t care much about gays Squeeky, you sure do focus on them and their activities, especially in the bedroom. I think you perhaps care a bit too much about gay people. To assume that others have not had contact with all classes of black people or gay people is assuming much too much about others you don’t know.
@DBQ
If I had to make a generalized statement about people my age, it’s that they don’t give a hoot what gay people do, because they don’t care that much about them in the first place. Gay people aren’t something we have to deal with very often. There will be one or two at work, if you work at a large enough place, and most likely none. Most get kind of grossed out when they see two guys kissing, The whole gay marriage thing is abstract to them. About the same way that Northerners and Westerners are about blacks.Or Mexicans. By and large, they aren’t in their neighborhoods, and the ones that are, are the kinds of black people who made it out of the ghettos and are pretty much like us.
They don’t really get what low class blacks are like until they have to come in contact with them. I think the same thing will hold true with gays. In the meantime, most boys will still get the hots for girls, and most girls will still get the hots for guys, and all the politicizing in the world won’t change it much. Just around the edges. And if it should change things, we will simply be replaced by a new group of people who are not confused.
And one day, scientists will figure it out!
Squeeky Fromm
Girl Reporter
Of course the American founding documents, and thesis as expressed in contemporary writing, does not grant dominion to the judicial or executive but solely to the legislative branch as it represents the Sovereign, the People. Both of the recent issues, and all cases suffering from “reasonable doubt,” should have been rejected as terminally flawed or unpopular, the Sovereign, and, respecting the Sovereign, the SCOTUS should have returned them to the legislative branch.
America has been “MADOFFED.” The American founding documents were an exercise in simplicity compared to the radical extremists’ efficacious tool of “infinite argument.” Bernie Madoff’s Ponzi scheme relied on inordinate complexity and prestidigitation. The radical collectivist extremists are working furiously to manipulate the Preamble, Constitution and Bill of Rights into something they aren’t. Only a fool would believe that the Founders ensconced a despotic regime and expected the minority to prevail (nine justices are a distinct minority). “Infinite argument” must be constrained and time limits imposed (the Preamble is only 52 words and the Lincoln conspirators were dead within 3 months). The truth about Bernie Madoff was finally discovered. When will America remove the robes and reveal the Bernie Madoff SCOTUS/Liberal/Progressive/Democrat Complex and introduce corrective action – the Constitution provides impeachment – for the corrupt and tyrannical radical, dominion-of-the-minority-supporting SCOTUS?
The Preamble, Constitution and Bill of Rights are not the Communist Manifesto, despite the protestations of Ruth Bader Ginsburg. There is no constitutional mandate for social engineering and compulsory opinion. Americans enjoy the understood Freedom of Thought and discrimination is the first step of freedom. The minority does not rule. The majority, with the right to free thought, rules.
The American thesis is Freedom and Self-Reliance.
In a free America, people must adapt to and live with the consequences of freedom.
The American Founders debated the role of the minority. They deserve admiration and commendation.
The Founders did not empower the judicial branch to find the dominion of the minority no matter how interminable, convoluted, tedious and debilitating the arguments for it are.
Since apparently no here has read the Constitution recently, allow me to point out the portion that makes it clear that same-sex marriage should ALWAYS have been legal: Article IX “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment has not been overruled by any subsequent amendment, and there being no good reason for the government to deny gay folks the right to marry, there is no constitutional argument against it either.
A couple of other points: If a baker cannot refuse to make a wedding cake for an interracial couple, they have no “right” to refuse to make one for a same-sex couple. The same goes for wedding flowers and wedding photographs and any other service or product that someone could supply to/for a wedding.
Perhaps before suggesting that “gayness” can be acquired sometime after birth, one might want to ask gay folks how long they’ve felt same-sex attraction. ALL of the ones I’ve spoken to have known their sexual orientation for as long as they can remember. And you might also ask yoursel(f)(ves) if you consider yourself straight, is there any event or argument you can think of that would turn you from straight to gay? I can’t think of one.
Markkernes,
I worked at a factory four years in the mid-south. Most of the night shift supervisors were various shades of LGBTQETC. That was neither here nor there. Everyone got along and were pretty good natured overall.
Now one of my supervisors was a gay man, effeminate and about an eight on the stereotype scale. He also had a teenage son from a previous marraige.
I’m curious what you think. Did he turn from gay to straight back to gay again like a frog or did he just fake it for sociatal expectations and the benefits he was denied as a gay man?
There is apparently a fairly large number of people who, though gay, act straight due in large part to cultural conditioning. They even marry people of the opposite sex and conceive children—but what they’re thinking about during that act of conception I will not speculate upon.
That being said, the choice is not simply between gay and straight. Sexuality, as near as I can tell, is a spectrum with straight at one end and gay at the other—and in-between are a number of people who can (and do) “swing both ways” to a greater or lesser extent. Your colleague might be one of them.
markkernes – having said all that, does the court that fined them 135k have the right to gag them to prevent them from talking about their side of the case?
Paul: The court does not have the power to stop the folks who were fined $135,000 for refusing to (if memory serves) bake a cake for a gay wedding from talking about their views on gay marriage or, indeed, any subject. What the court CAN at least attempt to prevent them from doing, by levying a fine, is from discriminating against those gay people they claim to have such a problem doing business with.
markkernes – the court issued a gag order gagging the defendants from discussing the case, including appealing the decision.
Paul: Actually, that’s not accurate. The article at this link http://hotair.com/archives/2015/07/03/happy-independence-day-state-of-oregon-orders-christian-bakers-to-stop-talking-about-their-faith/ makes it clear that they were only prevented from talking to customers about the case—and since they closed up shop, that order is moot.
markkernes – thanks for the update. I take it back. 😉
Great metaphor, Olly.
I take great solace in the fact religion and specifically Christianity will survive this most recent onslaught. Moral absolutes always prevail. They are like the hardwood floors discovered laying under carpet, padding and years of neglect. Our existing generations are merely laying carpet on top of carpet and it may look good for the majority in our culture but it will never replace the true hardwood floor that gives our culture it’s absolute moral foundation. Eventually the polished hardwood floor will return as societies preferred foundation. DIY has its purpose but not when it comes to trusting in human nature.
Those 2 liberal Nazi’s sure the hell didn’t give that young mother the dignity she deserved!!