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
So conservatives think we must be ‘orderly’. By whose standards? Some folks seem to have an awfully difficult time living with what they feel doesn’t fall into line of orderliness. What happened to that libertarian individualism? Has the conservative movement dumped the libertarian wing? This country must be “united”, how? Group think? The Borg?
@Olly
I can’t wait for all the elderly Fascists we’ll see when Social Security gets cut back. Or, taxes have to go up about 1/3 across the board to pay for all the welfare and medical costs. Half the country is scraping by paycheck to paycheck as it is, and all it will take is one good shock, and even the I.Annie’s will be screaming for Trump.
I figure we are maybe 8 to 10 years out before the math becomes overwhelming. You think Greece wouldn’t go for a modern day Hitler-type about now???
Squeeky Fromm
Girl Reporter
Squeeky,
I agree that people look for order. Right now we are lacking a unified direction, no respected rule of law and no leadership. We have no moral compass so anything goes as long as liberals endorse it. Liberals have replaced conservatives as the fiercely intolerant segment of society. Conservatives on the other hand are just trying to hold onto whatever remains of the Bill of Rights. I believe the first candidate that can prove they can be trusted to unite this country, enforce the rule of law and support at a minimum a moderate moral standard will get serious bipartisan support.
@I.Annie
No, Annie. Order becomes more important to people when there is less of it, so they elect Fascists. No disorder, no fascists.
American hasn’t had enough disorder yet in the middle and upper class white neighborhoods. When it does, look out. Even people like you will be clamoring for “order”, when “disorder” enters your life in a meaningful way.
Squeeky Fromm
Girl Reporter
“A sense of order”, so important to fascists.
@David
The reason people create theocracies is because their societies were headed in the same direction ours is. If all that paganish, “Do your own thing” stuff had worked out in the long run, you would not have had the move toward theocracies in ancient times. But it didn’t work then, and it won’t now. There will be a extreme coercive power that will arrive in America. The Germans, with all their intellect and culture, went Nazi to reestablish a sense of order. Nazism was a form of theocracy. That day will come to America, too. Or, we will simply be defeated by some outside force that go their poop in one sock.
Squeeky Fromm
Girl Reporter
We could be a Theocracy! Whoopie!
I. Annie wrote: “We could be a Theocracy! Whoopie!”
No. A theocracy is a government with a State religion where the religious priests or leaders run the government in the name of God. I propose we have a government based upon the Declaration of Independence which acknowledges God and calls upon God to guide us. That is not a theocracy, nor is it a secular or atheistic government. It is a free Republic where liberty exists for everyone.
Good for Canada! Lawyers who are taught in law school to discriminate? What sort of law school is that?
Annie, cases like the recent Supreme Court decision and this Canadian one prove that equality and discrimination are a failed legal philosophy. It has led us over the last 100 years down a dead end of legal jurisprudence. The secularists have misled us with this phony replacement. We would be better to abandon the entire meme of equal rights and return to the Ten Commandments which is about individual responsibility, duties, and obligations that we have toward God and toward one another. Instead of people fighting from the selfish motive of defining what government owes them, people will be thinking more about what they owe government and society.
Canada is 10 years in front of us on the Gay Marriage issue. Now they have ruled that the right to gay sex trumps religious liberty.
“A court in Canada has upheld the denial of accreditation to a Christian law school, holding the private school’s prohibition of homosexual behavior is sufficiently discriminatory that its degrees can be invalidated for that reason alone.”
Read more: http://dailycaller.com/2015/07/04/canada-court-rules-right-to-gay-sex-trumps-religious-liberty/#ixzz3fAKuEx2a
“1) Go right on being bigoted and expect some people to shun them because of it;”
I feel like this strips the bigots of their dignity.
INlegaleagle wrote: My [gay] friends are conservative because they like having money, working for it, eating…..that kind of thing.”
Wow! I guess gays ARE pretty much the same all over—except for the “conservative” part.
@InLegaleagle
Hi!!! Tell everybody there I will do my best! I just finished a transcript of a legal hearing for my BFF, and boss, Penelope Dreadful, at Pansies for Plato, which is her website. You might enjoy that for the legal ramifications:
https://pansiesforplato.wordpress.com/2015/07/06/pansies-author-mick-dumdell-released-from-mental-health-institution-a-surprise-ending/
Here is just the transcript, in pdf. It was a rush job, only like 4 pages.
https://pansiesforplato.files.wordpress.com/2015/07/mick-dumdell-partial-transcript-sanity-hearing.pdf
She has a pretty fun website.
Squeeky Fromm
Girl Reporter
@Markkernes
“I work in the adult entertainment (porn) industry….”
Yes, I suspect we know a far different segment of the gay population. My friends are conservative because they like having money, working for it, eating…..that kind of thing.
Hey Squeeky ! Your Hoosier fans, who discovered you in our search for comic relief from the “RFRA Indiana” week of hysteria, rarely, if ever, comment here ………….. but we stalk you. Often. You never disappoint. Stay well…….. : )
@Markkernes
I rather suspect that most gay men are preoccupied trying to figure out how not to have those embarrassing “little accidents.”
http://www.realjock.com/gayforums/842217
Squeeky Fromm
Girl Reporter
markkernes, as Chierf Consort to the Progressive Grand Inquisitor, I must warn you off of pushing too hard on 2) reconsider their views on gay rights“, as you are willfully ignoring Progressive Rule 3 (the Islam Exception).
As such, markkernes, you are acting as a bigot against Islam.
Pogo: I don’t know what the hell you’re talking about, but have fun.
@Inlegaleagle
Great comment!
Squeeky Fromm
Girl Reporter
Gay marriage has never been the end game and goal.
It hasn’t been about love, it has been about a political action committee hoping to do an LBJ on the gay votes – silencing anyone who stands in their way. Truly sad. My gay friends, along with black and hispanic Americans, are fed up with left that are using them. On the bright side – every fence sitter moderate I know jumped off their straddled positions and squarely into the conservative column. Liberals will always always always go too far. Always have – always will. They have zero impulse-control and even less ability to delay gratification.
In case you don’t actually KNOW any “gays” … here’s a little insight into how nearly every gay person I know is feeling about now……….
Carl Cervini:
“We are all sick of it. I sat on the Board of Directors of the nation’s oldest continuously operating LGBT Community Center. I came of age during the 80s at the height of the AIDS pandemic and the anti-gay vitriol of the fringe religious right (think Westboro). I came out blazing with righteous indignation at what was being said and done to the gay community back then…and then I watched and listened as my community became a caricature and mirror of the very thing that had been attacking them. I watched and listened as my community spewed hate and venom against anything not properly ‘supportive’ of their ever escalating, ever more fascist tactics & goals. I watched and listened while, as the nation became more ‘tolerant’, and finally even supportive, they became ever more fascist against anything not ‘tolerant’ and ‘supportive’ enough. When they began to label anyone who would not acquiesce to their demands a ‘hater’, I knew that ‘tolerance’ was not the goal, ‘submission’ was. When my community decided they would use the law to force people to associate with and labor for them, I decided ‘enough is enough’. Your gay friends SHOULD be sick of it. No doubt they hear, as I do, that anyone who is gay and a Christian, a Conservative, a Libertarian, or not completely Leftist must be self-hating and a traitor. The gay political class does not care about ‘the gay agenda’ (whatever the hell that is). They care for nothing but to destroy anything that whiffs of Liberty, the traditional family, and of capitalism.”
Very humorous, INlegaleagle. Since I work in the adult entertainment (porn) industry, I do know a few gays—couple hundred, tops— and NOT ONE SINGLE ONE OF THEM that I’ve spoken to thinks they’re being “used” by liberals for some political motive, but rather that gay political activists are doing what they do to secure equal rights for all gays. Guess you know some pretty conservative religious gay people—or is that a contradiction in terms?
From my own observations, gays are not using any tactics that blacks didn’t use in the ’60s to secure their equal rights. And as for “silencing” you or your bigoted buddies, you should feel free to spew your venom anywhere you choose to anyone you choose (assuming you’re not creating a public disturbance in the process)—and you should expect that anyone who believes that “all men (and women) are created equal” will call you a “bigot” when you do—because that’s what you will be.
Now, I can understand that bigoted people generally don’t like being called bigoted, so they have a few choices: 1) Go right on being bigoted and expect some people to shun them because of it; 2) reconsider their views on gay rights and understand that gay or straight, we’re all human beings with ideas and desires common to our species, and treat all people as equals under the law; or 3) I’m sure there’s some compound being set up somewhere—probably the Mid-West—where people who want to avoid all contact with gays and same-sex marriage can hole up together and share their bigotry far away from anyone who might put them down for it.
markkernes, somebody shared this article with me today. It’s thesis is that all pornography is homoerotic. Because you work in the porn industry, I am very curious what you think of it.
http://www.drjudithreisman.com/archives/PORNOGRAPHY-IS-HOMOEROTIC.pdf
“If you’re open for business, you’re open for business to ALL of the public. It’s that simple.”
Possible violation of Progressive Rule 3 (the Islam Exception):
“If you are kafir and open for business, you’re open for business to ALL of the public. It’s that simple.”
Excising this exception is forbidden.
Your comment has been noted, markkernes.
All victim status awards are retroactive.