The trou­ble with the ‘dig­nity’ of same-sex mar­riage

Jonathan Turley on how the rul­ing could hurt free speech

The Washington Post Sunday - - OUTLOOK - Twit­ter: @JonathanTur­ley Jonathan Turley is the Shapiro chair of public in­ter­est law at Ge­orge Washington Univer­sity.

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.

But Kennedy’s mov­ing lan­guage was more than just as­pi­ra­tional thoughts on dig­nity. He found a right to mar­riage based not on the sta­tus of the cou­ples as ho­mo­sex­u­als but rather on the right of ev­ery­one to the “dig­nity” of mar­riage. The un­cer­tain im­pli­ca­tions of that right should be a con­cern not just for con­ser­va­tives but also for civil lib­er­tar­i­ans. While Oberge­fell clearly in­creases the lib­erty of a his­tor­i­cally op­pressed peo­ple, the rea­son­ing be­hind it, if not care­fully de­fined, could prove par­a­sitic or in­va­sive to other rights. Be­ware the law of un­in­tended con­sti­tu­tional con­se­quences.

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.”

“Lib­erty . . . in­cludes cer­tain spe­cific rights that al­low per­sons, within a law­ful realm, to de­fine and ex­press their iden­tity.” Jus­tice An­thony Kennedy

JAC­QUE­LYN MARTIN/AS­SO­CI­ATED PRESS

Bal­loons that spell out “HRC,” the ini­tials of the Hu­man Rights Cam­paign, and “love” float out­side the Supreme Court af­ter the June 26 rul­ing le­gal­iz­ing same-sex mar­riage.

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