Better late than never, I finally dove into reading the Supreme Court’s decision in Obergefell v. Hodges.
Much was made in the coverage of the case of Kennedy’s use of dignity as a legal concept. Between that and his widely-quoted, very moving conclusion, I expected the decision to be touchy-feely but legally foggy. In some ways, it was – but I think the reason for the fogginess wasn’t so much in his conception of dignity, which was less central to his opinion than I expected, and more in the teleological view of marriage which frames and informs Kennedy’s ruling.
The Constitutional argument goes something like this:
The Due Process Clause of the 14th Amendment says that no person shall be “deprived of life, liberty, or property without due process of law.” ->
Marriage is a fundamental right because it is part of “liberty.” (Here’s where the teleology comes in, more on that later.) ->
The Equal Protection Clause of the 14th Amendment says that the State shall not “deny to any person within its jurisdiction the equal protection of the laws” ->
There aren’t good reasons to treat same-sex couples unequally with regards to marriage ->
Therefore, that unequal treatment violates same-sex couples’ due process by depriving them of liberty for no good reason.
It’s that second point – why marriage is part of liberty – that Kennedy dwells the longest on, and he reaches it by spinning an interesting story about the history of marriage.
As Kennedy tells it, marriage – by which he means a lifelong, transcendent bond between two (and definitely not more) people – has been around since the “dawn of history”, but has been corrupted by various Cultural Things (he gives arranged marriages and coverture as examples). We, as Americans who are always looking for new ways to exercise our Freedom, are inclined to strip away those extras and get down to the platonic ideal of marriage.
“From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman has always promised nobility and dignity to all persons, without regard to their station in life. …Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.” (p. 3)
[New] insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and are then considered in the political sphere and the judicial processes.” (p. 7)
According to Kennedy, marriage is part of “liberty,” even if that’s not what the 14th Amendment drafters originally had in mind, because this platonic ideal of marriage is uniquely important to individual autonomy – and we’re just now getting to a point, historically, where we can see that that ideal applies to same-sex couples, too.
The history of marriage – and the history of America as a place “where new dimensions of freedom” are inevitably discovered – are both probably quite a bit more complicated than Kennedy gets into, and in my eyes that undermines his argument. He could have focused more on the Equal Protection clause – he lays the groundwork for it when he discusses how sexual orientation is immutable, and it would have set a clearer precedent for future nondiscrimination cases. But it’s a nice story.