Jus­tice Kennedy’s ap­peal to ‘dig­nity’

The Washington Post Sunday - - SUNDAY OPINION - lanec@wash­post.com

On one point the four dis­sent­ing jus­tices in the gay mar­riage case are quite right: Jus­tice An­thony M. Kennedy’s ma­jor­ity opin­ion shows how deeply the pol­i­tics of iden­tity have pen­e­trated Amer­i­can cul­ture and, now, ju­rispru­dence.

You could even call his 28-page med­i­ta­tion “post­mod­ern,” as Jus­tice Sa­muel A. Al­ito Jr. did. Kennedy ex­plic­itly held that the “fun­da­men­tal lib­er­ties” pro­tected by the 14th Amend­ment “ex­tend to ... in­ti­mate choices that de­fine per­sonal iden­tity and be­liefs,” sug­gest­ing that the Con­sti­tu­tion it­self leaves gen­der and sex­u­al­ity up to each in­di­vid­ual, free from the con­straints of tra­di­tion. Cait­lyn Jen­ner, take note.

Of course, iden­tity pol­i­tics are not nec­es­sar­ily all that mod­ern, or post­mod­ern. They were present, so to speak, at the cre­ation of the re­pub­lic— right in the text of the Con­sti­tu­tion. Cer­tain iden­ti­ties were taken for granted, in ref­er­ences to “In­di­ans not taxed,” to “nat­u­ral-born cit­i­zens” and (by clear im­pli­ca­tion) to Africans held as slaves.

The dif­fer­ence be­tween this form of iden­tity pol­i­tics and Kennedy’s is that the for­mer was ex­clu­sion­ary and the lat­ter is in­clu­sion­ary. The Con­sti­tu­tion both promised a mea­sure of democ­racy and lib­erty pre­vi­ously un­heard of in the world and al­lowed these to be de­nied to cer­tain peo­ple based on their iden­tity.

In 1868, with the rat­i­fi­ca­tion of the 14th Amend­ment — the pro­vi­sion at is­sue in the gay mar­riage case — the United States be­gan its long move away from ex­clu­sion­ary iden­tity pol­i­tics. Cod­i­fy­ing the re­sults of the Civil War, that amend­ment guar­an­teed, first only on pa­per, then even­tu­ally also in prac­tice, that black peo­ple were not an in­fe­rior caste but U.S. cit­i­zens en­ti­tled to lib­erty and equal pro­tec­tion of the law.

Elo­quent as it may have been, Kennedy’s opin­ion was not ter­ri­bly sat­is­fy­ing as a piece of le­gal rea­son­ing. To cite one short­com­ing, he made lit­tle se­ri­ous ef­fort to an­a­lyze gay mar­riage un­der the doc­trine of equal pro­tec­tion, which might have re­quired him to delve into whether gay men and les­bians con­sti­tute a “pro­tected class” whose rights could be cur­tailed, but only if the jus­ti­fi­ca­tion sur­vived var­i­ous lev­els of ju­di­cial “scru­tiny.”

As a broad in­ter­pre­ta­tion of the 14th Amend­ment’s his­tor­i­cal role in U.S. so­ci­ety, how­ever, Kennedy’s opin­ion was rather more con­vinc­ing. If you see the amend­ment (and its near twin, the 13th Amend­ment, which abol­ished slav­ery) as a re­pu­di­a­tion of the prin­ci­pal pre-Civil-War caste dis­tinc­tions, then you can see it, as Kennedy did, as the foun­da­tion for sub­se­quent re­moval of other iden­tity-based bar­ri­ers to full so­cial par­tic­i­pa­tion, as those be­come ap­par­ent to an evolv­ing so­ci­ety.

Kennedy’s re­peated in­vo­ca­tion of “dig­nity,” and his in­sis­tence that the case was not about just the le­gal rights but also the so­cial sta­tus of gay men and les­bians — even their sub­jec­tive “hu­mil­i­a­tion” — echoed, faintly but dis­tinctly, the post-Civil War court’s dis­cus­sions of “badges of slav­ery,” which the amend­ments of that era were meant to elim­i­nate. It was as if he saw him­self, and the court, strik­ing down a sex­ual-ori­en­ta­tion caste sys­tem.

Un­doubt­edly, the dis­senters were right that Kennedy’s rul­ing nul­li­fies the re­sults of demo­cratic pro­cesses in those more than 30 states that had voted to de­fine mar­riage as a man-woman union only, just as surely as the 14th Amend­ment struck down the South­ern states’ Black Codes (but, ac­cord­ing to them, with much less sup­port in the amend­ment’s ac­tual text or history).

In the­ory, this should have been prob­lem­atic for Kennedy. Just two years ago, he wrote the opin­ion strik­ing down the De­fense of Mar­riage Act, which had de­nied fed­eral recog­ni­tion to state­sanc­tioned gay mar­riages, in part be­cause “Gov­ern­ment, through our history, has de­ferred to state-law pol­icy de­ci­sions with re­spect to do­mes­tic re­la­tions.”

What’s more, the only other is­sue that has stirred Kennedy more than gay rights over the years is state sovereignty. “Dig­nity” was his touch­stone, then, too; in

Alden v. Maine, for ex­am­ple, he de­clared that “Fed­er­al­ism re­quires that Congress ac­cord States the re­spect and dig­nity due them as resid­uary sov­er­eigns and joint par­tic­i­pants in the Na­tion’s gov­er­nance.”

Forced to pick be­tween the dig­nity of states and the dig­nity of in­di­vid­u­als, how­ever, Kennedy chose the lat­ter. Alas for the dis­senters, their ob­jec­tions sounded pro­ce­dural and for­mal­is­tic in the con­text of in­creas­ingly pro-gay mar­riage opin­ion polls and, in­deed, the facts on the ground (i.e., thou­sands of ex­ist­ing gay mar­riages). Many, if not most, of the gay mar­riage bans cur­rently on the books would not pass if put to a vote to­day.

The dis­senters im­plic­itly con­ceded this by protest­ing that Kennedy and the court ma­jor­ity had per­ma­nently shut off demo­cratic de­bate on gay mar­riage. Tech­ni­cally this isn’t true: Anti-gay mar­riage forces could cam­paign for a con­sti­tu­tional amend­ment over­turn­ing Fri­day’s rul­ing. Po­lit­i­cally, though, that’s prob­a­bly hope­less, as the jus­tices know.

An­thony Kennedy trans­formed Amer­i­can so­ci­ety on Fri­day — be­liev­ing pas­sion­ately that he was do­ing the right thing, and, surely, equally con­fi­dent that it would be pop­u­lar.

MANUEL BALCE CENETA/AS­SO­CI­ATED PRESS

Supreme Court Jus­tice An­tho­nyM. Kennedy.

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