Dignity is Not a Slippery Slope

Picking up steam in the wake of Obergefell v. Hodges is the notion that Justice Anthony Kennedy's apparently expansive concept of "dignity" creates problems of application in the law and interference with other rights.

Jonathan Turley writes:

But is it true that Kennedy found a right to marriage based on dignity but not on status? Turley appears to argue that Kennedy's reasoning includes no equal protection aspect at all, that how we define dignity - and how we subsequently protect it - has nothing to do with the identity of the person seeking it. I'm not convinced.

I'm not convinced because Justice Kennedy wrote a lot more than just the word "dignity" in Obergefell. If you read what he actually wrote, you can see that he invokes dignity in very specific ways that involve both limited situations and identifiable groups of people.

Justice Kennedy invokes dignity for the first time in Obergefell on page 3, in a discussion of history:

Marriage promises dignity to men and women without regard to their station in life. This is the language of equal protection. Marriage promises dignity no matter who you are. Kennedy is making a key point here: we already extend dignity to different-sex couples. He's not creating a right to dignity, he's identifying one that already exists but is being denied to a specific group.

Justice Kennedy's next invocation of "dignity" comes on page 6:

Again, the invocation of dignity is within the confines of equal protection. Men already enjoyed dignity in marriage. It was denied to women. But women, as a group, also have a right to dignity that the law cannot strip on the basis of their sex.

On the next page, Justice Kennedy turns to the history of gay and lesbian discrimination. Again, he defines dignity through an equal protection lens:

He speaks of the dignity of homosexuals "in their own distinct identity," not a nebulous concept of dignity that floats in space to be claimed by anyone who drifts by.

So Justice Kennedy's concept of dignity and its history is intertwined with equal protection: dignity is a right that has regularly been denied to discrete groups of people based on who they are.

Dignity is also situational. Justice Kennedy confines his definition to a narrow set of decisions that, again, are intertwined with the concept of equal protection:

Read carefully the second sentence. The concept of dignity applies to "intimate choices that define personal identity and beliefs." First, this language is not really broad, especially considering the cases to which Kennedy cites. Eisenstadt and Griswold were reproductive freedom cases, which declared that married and unmarried people have a right to make contraceptive decisions for themselves without interference by the government. Kennedy similarly defined dignity in this narrow way in Lawrence v. Texas, which found a dignity right in private, consensual sexual relations. So this dangerous slippery slope of dignity has only really been found in sex and marriage.

Second, the choices encompassed in the dignity right "define personal identity." This is equal protection language again. And there's more:

As Kennedy is sure to say, his identification of a dignity right "is true for all persons, whatever their sexual orientation." The gay marriage bans challenged in Obergefell interfered with a specific group's fundamental right to marry, which infringed "their autonomy to make such profound choices."

Near the end of his opinion, Kennedy engages in a discussion of equal protection that has frustrated commentators (and the Court's dissenters) because it appears cursory. The Supreme Court has established extensive doctrine to identify and scrutinize equal protection violations, but Kennedy's opinion barely addresses any of it. Instead, he talks in broad, historical terms, about how marriage has changed over time to include more people and more autonomy.

This passage shows once again that Kennedy's concept of dignity requires equality of application:

Coverture laws denied "equal dignity," not just "dignity" in general. Marriage laws, historically, protected the dignity of men to make intimate decisions for themselves about who to create a family with. But they denied that freedom to women, who became property in marriage. Like all the other places Justice Kennedy invokes dignity in Obergefell, this concept cannot exist independently of the rights of others. One person's dignity creates a baseline for the dignity of others - where one person has freedom to make intimate choices, those intimate choices cannot be denied to someone else based on their identity.

Kennedy's final use of the word "dignity" appears in his soaring final paragraph:

The phrase "equal dignity" is critical to Kennedy's concept of the right. The law already protects the dignity of different-sex couples to make the intimate and personal choice to marry, a right that has long been considered fundamental. The law must also protect the dignity of same-sex couples to exercise this right.

Jonathan Turley says "it is not clear what a right to dignity portends," and then offers some rhetorical questions:

First, it is not "clearly undignified" to be denied a wedding cake. Kennedy's concept of dignity, as he has spelled it out in his opinions, does not extend to being served by a business. And it also doesn't extend to feelings of indignity by a business owner having to serve someone they find objectionable. Dignity includes having consensual sex, having (or not having) children, and marriage. That's about it. Those are the key situations involved in all of Kennedy's opinions that invoke a right to dignity. They all involve intimacy and the creation of a personal identity as a partner, spouse, and parent.

Regulations of business, such as public accommodation anti-discrimination laws, have long been held to be constitutional without regard to "dignity." First of all, businesses are voluntary enterprises. And though decisions about sex and marriage are also voluntary, the operation of a business does not seem like it would qualify as the kind of intimacy that Justice Kennedy's opinions seek to protect.

Second, Justice Kennedy's concern for dignity arises where it has been categorically denied to a group of people based solely on their identity. This "dignity" does not exist independently from equal protection. Do anti-discrimination laws deny the dignity of bigoted business owners as a group? How would you classify this group? By their discriminatory actions alone?* Which ones? Anti-discrimination laws certainly don't single out anyone. You can't argue that anti-discrimination laws single out Christians, because (1) the laws apply to everyone equally, and (2) lots of Christians don't discriminate and many argue that their faith actually prohibits it. So whose dignity do such laws infringe?

It is interesting that affirming a right to equal dignity and autonomy within the very narrow confines of intimate, family decisions could lead observers to propose yet another parade of horribles, especially astute observers such as Jonathan Turley. That's Justice Scalia's job. A fair reading of Kennedy's "dignity" opinions - Lawrence, Windsor, and Obergefell - shows that he does not propose an expansive, nebulous right to dignity, but a narrow right to key personal decisions which require the equal protection of the law. Calm down, Chicken Littles.

*Consider that Lawrence overruled Bowers v. Hardwick, which defined homosexuality not as an orientation, but as voluntary actions. So the idea that a classification can turn solely on behavior is already questionable.

The Obergefell Dissents - C.J. Roberts Introduction

In a series of posts, I'll share some thoughts about each of the four dissents to Obergefell v. Hodges.

The "lead" dissent to the case of Obergefell v. Hodges was written by Chief Justice John Roberts. It is actually longer than Justice Anthony Kennedy's majority opinion. Because of its length, I'll discuss it in parts. This first entry covers the introduction (pages 1-3).

Had the Chief been in the majority, he would have written the controlling opinion of the Court. I assume, based on the style of his dissent, that the opinion would have been very similar in content and style. Unlike his fellow dissenters, the Chief takes a very broad, tempered approach. He is at times quite critical of the majority, but, as is his style, he avoids intentional hyperbole and insults.

His dissent opens with praise for the "strong arguments" of the petitioners (the same-sex couples from Kentucky, Tennessee, Ohio, and Michigan). But he describes those arguments as political, not legal. Like Judge Jeffrey Sutton in the Sixth Circuit, the Chief immediately frames the question as a legislative one, not a judicial one. As a legislative question, it rests outside the realm of the Court. "Whether same-sex marriage is a good idea should be of no concern to us," he writes.

Of course, like in the Sixth Circuit, this was not at all the question before the Court. I'll elaborate on that further as we go along.

There are a lot of problems with this paragraph. First, the petitioners did not argue that anyone has a right to "make a State change its definition of marriage." States retain the absolute right to define marriage however they want to define it. But the Constitution gives us individual rights which must be respected by the government, so any definition a state chooses is at least somewhat constrained. Obviously this means some definitions of marriage are not permissible (like a ban on interracial marriage or a requirement that Christians marry only Christians). But acknowledging that states must respect individual liberty does not mean individuals have a right to force states to do anything affirmative, like "change their definition of marriage" to any particular possibility.

The second half of the paragraph relies on the usual ahistorical deceit that the "traditional" marriage of one man and one woman has been a universal, global institution forever. That just isn't true.

The last sentence is also misleading. It treats the choice to expand marriage to include gays and lesbians as a step beyond a benign baseline of opposite-sex marriage. That baseline is not benign. It is restrictive. The laws challenged in Obergefell explicitly exclude a distinct group of people from civil marriage. The true question in the case was whether such exclusions are constitutional, not whether states have an abstract freedom to expand marriage if they want to. Of course they do. Nobody challenged that.

The second half of the next paragraph introduces a theme that will come up more clearly in the last section of the Chief's dissent:

The Chief suggests that the true victim here is the abstract process of democratic debate, and, by extension, that gays have been harmed by its foreclosure. This is of course ridiculous, but I'll discuss why later when I tackle Section IV of his dissent. Simply note here the turns of phrase: "closed the debate," "stealing the issue," and "cast a cloud." These are the harms the Chief seems most worried about, not the purposeful exclusion of a group of people from a fundamental civic institution.

He goes on to criticize the majority for imposing its own personal political whims on the country. Then, this:

This is a very problematic passage, as other commentators have noted. Who do we think we are? We're Americans in 2015. It is a very curious argument that we should be bound forever to the civic rules of an ancient people who engaged in ritual human sacrifice and cannibalism in isolated, agrarian societies.

But absurd historical comparisons aside, what about the idea that including gays and lesbians in civil marriage "transforms" the social institution? This is a typical retort of gay marriage opponents, but it doesn't make sense. The institution of opposite-sex marriage persists even after Obergefell. Straight people are still allowed to be married. Existing straight marriages remain undisturbed. All the wonderful aspects of "traditional" marriage remain fully intact, its purposes affirmed, its benefits in place. It is simply illogical to argue that the institution of marriage may only be preserved by excluding gays and lesbians from sharing in it.

In the next paragraph, the Chief cites Lochner v. New York for the first time. Lochner will get more attention in a later section of the dissent. For now, I'll turn to the second half of the passage:

Another key deceit on which the Chief's dissent turns is that there was a "vibrant debate" in the states before the Court. In Kentucky and the other states involved in Obergefell, there was no debate. The debate in Kentucky, if it can be called that, lasted just a few days in 2004. In a panic following the legalization of gay marriage in Massachusetts, the Kentucky General Assembly quickly and forcefully pushed through a proposed constitutional amendment to forever exclude same-sex couples from marriage. By November of that year, the democratic process was effectively closed. Regardless of whether some other states were legalizing same-sex marriage legislatively or whether national opinion polls were showing a shift in public sentiment in the lead up to Obergefell, there was no "vibrant debate" in the states actually before the Court. There was no realistic chance that gays and lesbians in the Sixth Circuit would ever enjoy marriage rights. Not within many decades, at least.

The Chief then concludes his introduction with the following:

As I mentioned before, both the Chief and Judge Sutton in the Sixth Circuit base their opinions on a fundamental reshaping of the question before their respective courts. They claim the issue is "who gets to decide?" rather than, "is the decision constitutional?" Nobody challenged whether states can make domestic relations decisions. The challenges in Kentucky and elsewhere weren't declarative actions. They were suits challenging existing laws that took force after the states made decisions on the grounds that those decisions violated the Constitution.

This reshaping of the question was the most frustrating aspect of Judge Sutton's opinion in the Sixth Circuit, and was frustrating to see endorsed by the Chief Justice in his dissent. If you approach marriage restrictions as a question of "who decides," it becomes extremely difficult to reconcile the answer with important precedents like Loving v. Virginia. Had the Court in 1967 merely asked, "who gets to decide if marriage can include interracial couples?" the obvious answer that it is the state's decision to make means Loving was incorrect. Though the Chief (and Judge Sutton before him) go to some lengths to distinguish Loving on the basis of biology, extrapolating their underlying logic compels the conclusion that it is constitutional for states to limit the marital institution to couples of the same race, or to the same religion, or in any other way that the democratic process compels.

I'll explore this more in future posts as I discuss the remaining sections of Chief Justice Robert's dissent.

Can the Government Get Out of the Marriage Business?

About a month ago, before the oral arguments in Obergefell v. Hodges, I profiled two amicus briefs that took competing views of the "original understanding" of the Fourteenth Amendment and how it applies to the question of same-sex marriage.

One of those briefs was filed by the Cato Institute and several high-profile conservative scholars who specialize in "originalist" legal theory.  When the text of a law is silent on an issue or otherwise unclear, originalism is an approach to legal interpretation that tries to discern either what the writers of a law intended the law to do at the time it was passed, or what the words they used meant at that time.

Generally speaking, originalists tend to be a conservative lot. The authors of the Cato brief are no exception. Yet despite their ideological leanings, they actually argue in favor of same-sex marriage. As they see it, the original understanding of "equal protection," represented by the words of the Fourteenth Amendment, was a broad principle opposed to separating U.S. citizens into distinct and inferior castes. In their view, same-sex marriage bans relegate same-sex couples to second-tier status and are therefore unconstitutional.

This is all well and good, and in line with the majority of amicus briefs filed in Obergefell. But the conclusion of the Cato brief is noteworthy. The primary question in the case is whether the Fourteenth Amendment requires states to issue licenses to same-sex couples who seek to marry. To that question, the brief provides this answer:

"Of course" the Fourteenth Amendment doesn't require the states to issue licenses, they say. But since states do actually issue marriage licenses, the states cannot exclude same-sex couples. That's a sound equal protection argument.

But it does raise an interesting question. Can states get out of the marriage business altogether? Or, in other words, does the Fourteenth Amendment actually require states to issue civil marriage licenses at all? Is the Cato brief correct that it doesn't?

In an earlier post, I addressed the question of whether states should abandon civil marriage. I don't think they should. But from a Constitutional standpoint, would that even be an option at all?

The Fourteenth Amendment doesn't just command equal protection. It also commands due process, which means the government can't take your life, liberty, or property without (1) a really good reason to do so, and (2) a scheme to either allow you a chance to defend yourself or receive fair compensation for your loss. So if civil marriage is considered a liberty interest, then states can't deny it to anyone without a really good reason.

Is civil marriage a liberty interest? The Supreme Court has repeatedly said that it is. In 1888, the Court declared that marriage creates "the most important relation in life," and has "more to do with the morals and civilization of a people than any other institution." Maynard v. Hill, 125 U.S. 190, 205 (1888). Later, the Court said that legislation involving marital rights "involves one of the basic civil rights of man." Skinner v. Oklahoma, 316 U.S. 535 (1942).

Most famously, the Court unanimously declared again in 1967 that marriage was a basic civil right that required due process protection. "The freedom to marry, or not marry...resides with the individual and cannot be infringed by the State." Loving v. Virginia, 388 U.S. 1, 12 (1967). Of course, Loving dealt specifically with marital restrictions based on the race of the partners, but the underlying principle was clear: civil marriage is a fundamental right that the states cannot easily trifle with.

And just in case you're not convinced, "it is clear that among the decisions that an individual may make without unjustified government interference  are personal decisions 'relating to marriage.'" Carey v. Population Servs. Int'l, 431 U.S. 678, 684-685 (1977). "The right to marry is...implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384 (1978)

If we take the Court at its word that marriage is a fundamental right, a liberty interest protected by due process, then the answer to our question seems clear. States cannot deny that right by refusing to issue civil marriage licenses to everybody.

But what about marriages that don't involve the state? Would the government really be infringing on the right to marry if it just abandoned licensing but didn't prevent people from getting married at church or in some other private setting? My sense is that yes, that would still be an infringement because marriage without state licensing wouldn't carry any actual weight. It wouldn't mean anything within the context of civil society. I discuss that more thoroughly in my previous post so won't elaborate here.

My reading of the Supreme Court's precedent on the question of marriage suggests to me that the Fourteenth Amendment does in fact require the states to issue marriage licenses in the first place, not just issue them equally if it elects to issue them at all. Though the Amendment is silent on marriage, the Supreme Court has not been. As a fundamental right, marriage may not be denied by the state. "Getting out of the marriage business" would be the ultimate denial.

Constructive Uses of Freedom

Anti-Muslim attention hound Pamela Geller hosted a "Draw Muhammad" event in Texas this past weekend. Perhaps unsurprisingly in the wake of the Charlie Hebdo massacre in France, it resulted in an attack by apparent Muslim extremists angered by the obvious provocation.

Incidents like this spark the never-ending debate about the limits---if there are to be any---of free speech. On one side, the absolutists who argue that absolute freedom of speech includes an absolute freedom from using good judgment. On another, religious hypocrites who insist they should be free to mock and ridicule others but would happily accept an American Christian theocracy. And on yet another side (this is a triangle), a bipartisan group of authoritarians who believe security is probably a good justification for curbing some mean language.

This is not going to be a "free speech is important, but..." college newspaper editorial. I, like the late Supreme Court Justice Hugo Black, interpret the First Amendment strictly. It says government shall make no law abridging the freedom of speech, and I read that to mean "NO law." I think that rule applies to obscenity laws, so-called hate speech laws, and anything that would prohibit "shouting 'fire' in a crowded theater," too. If I'm any kind of "qualified absolutist" as Justice Black has been described, the qualifications would be few and far between.

That said, you can simultaneously embrace the absolute freedom of speech but still believe that such freedom can and should be used for constructive ends. That's why events like Geller's bother me. Of course she and her supporters have the freedom to purposely provoke Muslims with cartoons of Muhammad. And of course nothing they did justifies the violent attack that resulted. But that still doesn't mean they're good or right or heroes for doing it. And I don't think the cartoonists at Charlie Hebdo, who frequently used racist caricatures to get across their satirical points, should be lauded as heroes of freedom, either. This is not at all to detract from the tragedy of their murders or justify the extremists who killed them.

Last month, cartoonist Gary Trudeau accepted a Polk Award for his long career with remarks that infuriated people who believe the freedom of speech justifies literally anything and everything people want to say. He urged cartoonists and satirists like those at Charlie Hebdo to avoid the urge to "punch down," and instead turn their wit and criticism against those in power. A marginalized minority religion is an easy target. Elites who exploit the masses (and can ruin your career or reputation if you raise their ire) are a more constructive punching bag.

Trudeau then addressed certain absolutists specifically:

What free speech absolutists have failed to acknowledge is that because one has the right to offend a group does not mean that one must. Or that that group gives up the right to be outraged. They’re allowed to feel pain. Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.

This was not well received. David Frum took umbrage in the Atlantic, accusing Trudeau of victim-blaming and ignoring the real source of societal privilege---the will to violence. In my view, Frum tries too hard to wring sympathy for extremists and a desire for censorship from Trudeau's reasonable call for personal temperance. One can simultaneously believe that the freedom to be offensive should be protected but not necessarily used.

It is not anti-freedom to encourage people not to be assholes simply because they can be.

Which brings us back to the Geller event in Texas. The sole purpose of the event was to provoke anger among Muslims who Geller hates and smears at any chance she can get. Her hatred is tribal---an us-against-them, spiritual war between two mutually exclusive civilizations. Those who attended used their freedom only to incite, not for any constructive purpose.

Should we pass laws against events like that? No. There is no justification, whether it be to encourage religious or ethnic sensitivity or to prevent violent responses, for the government to attempt to curb religious criticism or blasphemy of any kind. America should become neither a police state nor a theocracy. But that's not where the discussion should end.

Yes, you have and should have the freedom to criticize any religion. But of what value is your criticism? Are you illuminating contradictions, or exposing corruption, or are you just harassing and ridiculing The Other as part of a tribal circle jerk? It is not unreasonable or fascist to suggest that our freedom can be used for more constructive ends than petty agitation.

Our diverse society includes people of as many different backgrounds and viewpoints as you can imagine. It is critical that we protect everyone's freedom to believe and say whatever they feel. It is also critical that we maintain a dialogue among each other to avoid or minimize unnecessary conflict that solves no problems and helps no one in need. That dialogue should begin with an affirmation of our freedom, not end there.