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
“What do you think we’ve been discussing???”
Markkernes,
You are discussing one thing and completely ignoring the other. I’ll repeat: “Do you have ANY evidence that Christians have denied service because of sexual orientation?”
They are not denying service because they ARE gay (sexual orientation); they can buy all the cakes and cookies and whatever else appeals to their taste buds. But, you already knew that and to admit it blows up your ‘bigot’ argument. Instead of the business being bigoted you would have to acknowledge the same-sex couple are the one’s being intolerant. Instead of accepting these business owner’s natural right of conscience, they will CHOOSE to run them out of business instead of going to some other bakery that will provide the product/service. The intolerance pendulum has swung over to the LGBT community and quite frankly, their not finished with their agenda.
Aha! Olly, I think I understand what the problem is: See, in America, when you decide to open up a business—let’s say, a bakery—and you put a sign in the window that says “Open For Business,” that means, in America, that whoever’s walking down the street and wants to buy a cake or donut or cookie or whatever you’re selling can walk into your store and buy it. Doesn’t matter if that person is white, black, young, old, Christian, Muslim, straight, gay or transsexual; in America, their money’s as good as the next person’s. And if you’re the sort of bakery that makes certain baked goods to order, any of those people can order those delicacies as well, because their money’s as good as anybody else’s.
Now, if you, the baker, decide that one person’s money is NOT as good as someone else’s, and you don’t want to serve them, the law says you have to have a good reason to refuse. For example, if someone comes into your food-selling establishment covered in dirt and dung with flies buzzing all around, you can refuse them service for sanitary reasons. If you run an adult bookstore, the law requires that you not sell your wares to minors. But simply because someone doesn’t share your sexual orientation OR YOUR VIEW OF THEIR SEXUAL ORIENTATION is not a legitimate reason to deny them service, because in America, when you open a business that serves the public, you don’t get to decide that there’s some portion of the public you don’t want to serve. Perhaps you’ve heard that in the South in the 1950s and ’60s, some shopkeepers put signs in their windows saying, “Whites Only” or something similar. But then Congress passed the Civil Rights Act and those shopkeepers were required to serve black people—or they could close up shop!
So understand, the fact that you refuse to sell, say, a wedding cake to a gay person, and instead suggest to them that they go down the street and buy such a cake from another baker who isn’t as bigoted as you are, and that gay person refuses, saying they want to buy that cake from you, they’re not being intolerant; they’re simply exercising their right AS AN AMERICAN CITIZEN to buy from a business that SERVES THE PUBLIC. Now, you may not like that, but it is the “American Way.” “Right of conscience” has nothing to do with it. If you’re open for business, you’re open for business to ALL of the public. It’s that simple.
markkernes wrote: “If you’re open for business, you’re open for business to ALL of the public. It’s that simple.”
I think government has taken a wrong turn on this issue. Any business should have the liberty to refuse service to anyone for any reason. If a person isn’t wearing shoes, they can refuse service. No shirt? They can refuse service. Obviously it is not in the best interest of the business to be too selective, but if their conscience bothers them to serve sodomites, pedophiles, pornographers, adulterers, or any other immoral person, then they should have the right to refuse to serve them. Let them go to another business that wants to serve them.
The American Way is individual liberty. The American Way is not the idea that people cannot buy or sell anything unless they agree with government policy.
Notice:
Bigots will be hounded and shamed until they quit their jobs or kill themselves.
It is IMPORTANT TO NOTE that the Progressive definition of ‘bigot’ will change from day to day, so be careful what you write.
Best to keep silent until the Official Talking Points have been released on any subject matter.
markkernes, for example, is revealing a tendency toward violating the pro-Diversity code by using the phrase “the company’s bigoted religious views about gays and same-sex marriage“, as that could be construed to be critical of Islam, which is given a pass on this issue.
markkernes, be careful. Your posts are being monitored.
Pogo – at the time of the cake contract, Oregon did not recognize same sex weddings. So, then the question becomes, did Oregon declare gays a protected class? This I do not know and it does not appear in the decision.
“So the “creativity” you have a problem with is them writing on the cake, “Best wishes on your wedding day”??????? And maybe putting little plastic figures (which they don’t make themselves) of two men or two women on top of the cake?”
markkernes,
Nope, “they are simply expecting the same respect for their conscience that same-sex couples are expecting for theirs.”
Why do you feel the need to force people to do something that violates their conscience? Why is it okay for you to be bothered by people that have religious objections to same-sex marriage but those objecting to it do not have an equal right to be bothered? Do you not see the hypocrisy in that? Do you not see the bigotry in that intolerance?
Do you have ANY evidence that Christians have denied service because of sexual orientation? Or has a product or service been denied that requested the businesses to participate or facilitate a celebration of any kind of that same-sex relationship? I ask because it has been ‘suggested’ that gay people are being turned away like Jim Crow laws were in effect and I’m not aware of that being the issue at all.
Olly wrote: “Why do you feel the need to force people to do something that violates their conscience? Why is it okay for you to be bothered by people that have religious objections to same-sex marriage but those objecting to it do not have an equal right to be bothered? Do you not see the hypocrisy in that? Do you not see the bigotry in that intolerance?”
Yup, I’m pretty intolerant of bigots in general; don’t care if they’re sectarian, racial or sexual. But that’s just my personal view, and one of the nice (possibly inevitable) things about being human is that people have viewpoints. What ISN’T nice, and what VIOLATES THE LAW, is when people who hold themselves out as doing business with the public at large refuse to do business with a portion of that public because they don’t share those (potential) CUSTOMERS’ outlook on life.
Olly: “Do you have ANY evidence that Christians have denied service because of sexual orientation?”
What do you think we’ve been discussing??? Sweet Cakes by Melissa denied service to a lesbian couple because of the company’s bigoted religious views about gays and same-sex marriage.
Olly: “Or has a product or service been denied that requested the businesses to participate or facilitate a celebration of any kind of that same-sex relationship?”
The couple didn’t ask Sweet Cakes by Melissa to either “participate” in or “facilitate any kind of… same-sex relationship.” They hold themselves out to the public as a business that bakes cakes, and two members of the public ordered a wedding cake from them—something which I suspect many other local couples have done—and they refused to make that cake. That’s called “discrimination” and it’s against the law.
Olly: “I ask because it has been ‘suggested’ that gay people are being turned away like Jim Crow laws were in effect and I’m not aware of that being the issue at all.”
No, your idea is that because someone who owns a business has bigoted views about some people’s sexual orientation, it’s okay for them to discriminate against those people by refusing to do business with those people even though they are open to the public and doing business with most of that public.
markkernes – it appears that Sweet Cakes is being penalized for an act that the state of Oregon did not recognize. I don’t think this will hold up on appeal.
We are the non-pig inmates in Orwell’s “Animal Farm.” And we are doing nothing to stop the ongoing gross injustices.
2 Navajo men holding hands in picture “two spirits” taken in 1866. What goes on here, same sex or some kind of shock?
http://indiancountrytodaymedianetwork.com/2014/02/13/same-sex-marriages-unrecognized-navajo-culture-how-long-153512
Greg,
In Navajo “Begay” is a surname. It basically means his son.
So I might say in reference to my son.”Two Bears Begay.”.
If your son is homosexual you would say,” Two Bears Begay be gay.”.
Where did the word “gay” derive from? Those who are of a same sex persuasion often seem unhappy– the opposite of “gay”.
Where did the word “bent” come from? Do they bend over in the clover or some such thing?
Are these words like “gay” and “bent” going to be put into the list of “uncivil” words or terns out there in the world or on this blog? One has to use Pig Latin to say words like itchBay or astardBay yet neither word is a cuss word and each describes something which is set forth in dictionaries. We have a human named Ray on our marina and I would hate to slur his name by using Pig Latin to describe a “retard”. i.e. etardRay. Ray is an etardRay. Then it sounds like a sea ray or something. A human is a slow witted sea ray– that sounds better than calling them a retard. There is also some jerk here on the marina who is a slow witted gay guy whom others call “The Bent Retard” as if that is his real name. I refer to him as “SWG guy”.
markkernes,
What your advocating is requiring businesses to “create” something that violates their conscience. I am not aware of any business that refused to sell any gay couple a wedding cake or take photos of a gay couple for example. Where I understand they are objecting is when asked to perform that service in a manner that violates their conscience. Buy all the wedding cakes you want and take all the pictures you desire but DO NOT expect those bakers and photographers to adorn a cake or take photographs in a manner that violates their conscience.
Forcing anyone to violate their conscience is unnecessary in a free society and totalitarian. Christians aren’t asking the gay couple to repent, they are simply expecting the same respect for their conscience that same-sex couples are expecting for theirs. Now that is love for thy neighbor.
Olly wrote: “What your [sic] advocating is requiring businesses to “create” something that violates their conscience.”
Well, they’re bakers, right? They bake cakes, right? They even bake wedding cakes on occasion, right? And assuming the bride and groom don’t tell them what to write on their wedding cakes, the bakers probably come up with something on their own, right? So the “creativity” you have a problem with is them writing on the cake, “Best wishes on your wedding day”??????? And maybe putting little plastic figures (which they don’t make themselves) of two men or two women on top of the cake?
Some here might find this 2003 video of interest: https://www.youtube.com/watch?v=1fSPKKtcpaQ
Fun With The Bill Of Rights
It’s a holiday weekend. Let’s play a little game. Let’s say we substitute a word of our choice for “religion” in the 1st Amendment. Maybe the Founders didn’t think they needed to explain the obvious. They may have assumed we knew, understood and would not modify their intent – an intent that was demonstrated by the way they lived their lives and practiced daily. Did the Founders freely think, speak, assemble, print, run businesses, discriminate, engage in racism, etc. (while obeying common law)? Were the Founders really more serious about religion than basic freedoms? See if this works:
“Congress shall make no law respecting an establishment of THOUGHT, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
So if Americans were provided the freedom of thought, they could think whatever they wanted to think and the government could not prohibit the free exercise of their brain. From that point they could engage in free speech, press, assembly, papers, effects, “castle,” privacy, etc. Seems like when the Founders said free, they meant free, even of the dictates and commands of KING SCOTUS.
FREE.
PERIOD.
Simple and concise; succinct and immutable by the judicial branch.
I wonder if the Founders thought:
a. No government would be so antithetical and dictatorial as to tell people what to think.
b. All people will understand that we meant what we said in the 1st Amendment, across the board.
*****
What if we played the game substituting the word “business?”
“Congress shall make no law respecting an establishment of BUSINESS, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Ooo! That would mean the Founders KNEW that business was to be free of interference by government in perpetuity and immutably as one of “…the blessings of liberty…”
******
Religion, business, assembly, speech, thought, discrimination, etc.
“Congress shall make no law respecting an establishment of DISCRIMINATION, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Government has no authority to impose or prevent discrimination. People may engage in the free exercise of discrimination, speech, press, assembly and thought.
FREEDOM AND SELF-RELIANCE.
PEOPLE WILL ADAPT TO AND LIVE WITH THE CONSEQUENCES OF FREEDOM.
Steve, You taught me something I did not know. I thought “bubbler” was unique to Wisconsin. I love it when I learn something new. Thanks.
And the secret ingredient is…Fairy Cake!
I’ve lived down here in the mid south for quite some time now. They definitely have some interesting laws concerning the sale of alchohol.
Most towns you can buy beer. In some places wine and hard liquor are a little harder to come by.
Now one particular town where I was delivering pizza, you could only get mixed drinks at the Moose lodge, VFW or the United Ebony Brothers (I ain’t lyin’). You could only buy a drink there if you were a member.
I wonder if this is where baked goods and florists are headed?
Nick wrote: “The majority ruled the 14th Amendment was applicable. Are you more learned on the Constitution than SCOTUS?”
While I don’t hold myself out as more constitutionally savvy than the Supreme Court justices, I have noticed over the years an incredible reluctance by the Supreme Court to look at the Ninth Amendment and apply it to any number of cases that have come before it over the past 50 years or so. I think the 14th does apply as the justices have stated in their opinion, but to omit the Ninth Amendment basis for legal gay marriage suggests to me that the Supremes want to parse out rights based on ANYTHING ELSE, considering that just dismissing or affirming a number of cases based on the unspecified rights guaranteed by the Ninth would decrease their power, especially when it comes to supporting or dismissing the pet causes and beliefs that each of the justices seem to hold personally.
DBQ, I’m getting tired of explaining these BASIC business differences OVER AND OVER AND OVER again. Et vous?
mark, The majority ruled the 14th Amendment was applicable. Are you more learned on the Constitution than SCOTUS?
.What they can’t do is DISCRIMINATE against anyone regarding the work that they do and/or the services that they provide to THE PUBLIC.
This is true, HOWEVER, making a special order one off item like a wedding cake is not a product or service that is offered to the general public. It is a contractual agreement that two WILLING parties enter into. A contract is not something that a contractor is obligated to make with anyone who requests it.
THIS is the difference that many cannot wrap their little minds around.
CONTRACT versus public accommodation.
DBQ wrote: “This is true, HOWEVER, making a special order one off item like a wedding cake is not a product or service that is offered to the general public. It is a contractual agreement that two WILLING parties enter into.”
Horseshit. If they are in the bakery business and they make wedding cakes for ANYONE else, it’s part of their business, and making a wedding cake for a gay couple is essentially no different than making one for a straight couple.
DBQ
Why are gays trying so hard to be like heteros in the first place, with their wedding cakes and other paleohetero symbolism?
I could really have done without throwing the bloody bedsheets over the balcony.
Annie
That picture looks like an old guy kissing a mirror. It reminds me of how Liberace had his male lover get plastic surgery to look like him.
Well, Nick, then I’m confused that you don’t understand the Ninth Amendment, which is about as clear as it gets, at least regarding the issue of whether gays can marry.
Olly: You wrote “None of us should be compelled to violate our conscience where that conscience does not infringe that of others.” But you see, we’re not talking about anyone’s conscience here. The people who refused to, for example, bake a cake that would be served at a gay wedding may have had a conscientious objection to doing so, but in America, when you hold yourself out as offering a product or service to “the public,” that includes ALL the public (minus, in some cases, those who aren’t wearing shirts and shoes). The bakers (or whoever) can BELIEVE whatever they want about gay people or whomever. What they can’t do is DISCRIMINATE against anyone regarding the work that they do and/or the services that they provide to THE PUBLIC. You worry about what may happen to Christians in the future, though there’s no indication that anyone is or will be forcing them to change their BELIEFs. But when their actions violate the law—in this case, the 14th Amendment, then they must be held accountable.
I wonder whether segregationists in the ’50s and ’60s made similar arguments about why they were refusing to serve blacks?
I think we need state laws which prohibit a gay male from buying a male dog. Period.