Posted by Curt on 30 April, 2015 at 6:19 pm. 1 comment.


Jeffrey Rosen:

If the Supreme Court strikes down same-sex marriage bans, it may well do so on the grounds that they violate the dignity of gay couples. And although proponents of marriage equality may cheer a decision along these lines when it is delivered, the expansion of the constitutional right to dignity may produce far-reaching consequences that they will later have cause to regret.

The oral arguments at the Supreme Court on Tuesday made clear that Justice Anthony Kennedy’s biggest contribution to the gay-marriage debate is his expansion of constitutional protections for the right to dignity. Justice Kennedy invoked the word “dignity” five times in the oral arguments; and other lawyers invoked it 16 times. It was central to the opening statements of Solicitor General Don Verrilli. “The opportunity to marry is integral to human dignity,” he began. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.” It was also one of the first words uttered by the plaintiff’s lawyer, Mary L. Bonuato. “If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class,” she said, “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”

Although the word dignity has appeared in more than 900 Supreme Court opinions, Justice Kennedy, as Kenji Yoshino of NYU has noted, has been especially drawn to it. He has referred to “dignity” in cases ranging from partial-birth abortions to prisons. As Yoshino puts it, “When Justice Kennedy ascribes dignity to an entity, that entity generally prevails.” Kennedy’s recognition of the dignity interests of LGBT couples has been influential in persuading lower court judges to strike down bans on same-sex marriage. But although Kennedy’s description of the dignitary interests of LGBT couples is inspiring, and it accurately describes their social experience, the roots of the right to dignity in constitutional text, history, and tradition are harder to discern.

Kennedy first drew a clear connection between “personal dignity and autonomy” and laws regulating personal relationships such as marriage in the 1992 Casey decision, which upheld the core of Roe v. Wade:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

When Justice Kennedy later invoked this idea of dignity to overturn laws banning same-sex intimacy in the 2003 Lawrence case, Justice Scalia ridiculed his opinion in Casey as the “famed sweet-mystery-of-life passage.” Despite Scalia’s mocking tone, he was correct to note that Kennedy’s constitutionalizing of a right to dignity expanded the already amorphous right to privacy recognized in Roe v. Wade, which itself had tenuous constitutional roots. By rooting the right to dignity in a synthesis of the textually enumerated rights of equality and liberty, Kennedy laid the groundwork for judges to review laws that inflicted dignitary harm with skepticism, regardless of proof of intentional animus and regardless of whether the victim of discrimination was considered a “suspect class.”

A range of liberal scholars recognized the sweeping implications of Kennedy’s new synthesis of dignity with liberty and equality, from Robert Post (who observed that in Lawrence, the Court relied on “themes of respect and stigma … traditionally associated with equal protection”) to Laurence H. Tribe (who described a “Substantive Due Process-Equal Protection synthesis,” and the relationship between the two as a “double helix”) to William N. Eskridge (who called the connection between liberty and equality a “jurisprudence of tolerance”). But in discussing the dignitary interest that emerges from the equality and liberty clauses, all of these scholars relied on the same highly abstract penumbral reasoning that had proven so controversial in the cases leading up to Roe v. Wade. In other words, the kind of liberties that the Framers had in mind when they framed the Fourth Amendment (the liberty of the home) were very different, and far more specific, than the broad right to be free to define your own identity without being demeaned by the state or by fellow citizens that Kennedy recognized in Lawrence.

Kennedy made another crucial move in Lawrence, concluding that an individual’s interest in dignity trumps the majority’s interest in preserving traditional moral values. “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” Kennedy held.

“This effectively decrees the end of all morals legislation,” Justice Scalia fulminated, and he predicted the demise of “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” In fact, Scalia’s prediction may prove to be correct. His question about why the state’s police power to protect public morals—taken for granted from the founding era until the Lawrence case—was suddenly a violation of the Constitution remains valid and unanswered. In Lawrence, Scalia also predicted that the new dignitary right would lead inevitably to the recognition of same-sex marriage, despite Kennedy’s protestations to the contrary (“Do not believe it,” Scalia wrote). As Scalia understood, without moral disapproval as a permissible state interest, the other interests the state offered to ban same-sex unions were hard to credit. Here is Scalia’s prescient observation:

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