The Commercial Appeal

Ruling safeguards dignity

- COLUMNIST CASS R. SUNSTEIN Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, is a columnist for Bloomberg View.

The word “dignity” can’t be found in the Constituti­on, but in his majority opinion in U.S. v. Windsor, Supreme Court Justice Anthony Kennedy uses it no fewer than nine times (actually 10, if we include “indignity”). The foundation of the court’s opinion, and its real importance, lie in its insistence on human dignity as a constituti­onal value, one that stands at the heart of our longstandi­ng commitment to equal protection of the laws.

In Windsor, the court struck down a central provision of the Defense of Marriage Act, enacted in 1996, which states that, under federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” When filing tax returns or seeking federal benefits, samesex couples can’t count as “married” under federal law, even if their state allows them to wed.

The court’s chief objection to the law is that it is an affront to dignity. In describing the recent rise of same-sex marriage, the court emphasizes that some states have conferred on same-sex couples “a dignity and status of immense import.”

In identifyin­g the central problem with the Defense of Marriage Act, the court proclaims that it “demeans the couple” and “humiliates tens of thousands of children” now being raised by same-sex parents.

In explaining its consti- tutional judgment, it finds that “the resulting injury and indignity is a deprivatio­n of an essential part of the liberty protected by the Fifth Amendment.” In its critical closing paragraph, the court states that the “federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

It is true that the Windsor opinion emphasizes not only dignity, but an unruly mixture of constituti­onal concerns. The court devotes considerab­le space to the traditiona­l role of the states in establishi­ng the legal nature and incidents of marriage. Kennedy was clearly troubled that by inserting federal authority into domestic-relations law, the Defense of Marriage Act “departs from this history and tradition of reliance on state law to define marriage.”

But the court didn’t invalidate the law on federalism grounds. Instead it invoked the due process clause of the Fifth Amendment, which prevents the federal government from depriving people of life, liberty or property “without due process of law,” and which has long been understood to contain an equal protection component.

Because the Defense of Marriage Act discrimina­tes against same-sex couples for no legitimate reason, because its “purpose and practical effect” are to impose “a stigma upon all who enter into same-sex marriages,” and because it reflects (in the court’s view) “an improper animus or purpose,” it violates the Fifth Amendment.

Windsor isn’t exactly a minimalist decision, but it does leave a great deal undecided. The court conspicuou­sly declined to resolve the question of whether courts must, as the Justice Department had argued, give “strict scrutiny” to laws that discrimina­te on the basis of sexual orientatio­n. If the court had agreed, it would have imposed a severe obstacle, not limited to the area of marriage, to any form of discrimina­tion against gay men and lesbians.

In his dissenting opinion, Chief Justice John Roberts urged a narrow reading of the court’s opinion, clearly attempting a kind of damage control. In his view, federalism was crucial to the outcome, and hence the court’s opinion did not bear on whether states must recognize same-sex marriages.

By contrast, Justice Antonin Scalia contended that the handwritin­g is on the wall: “The view that this Court will take of state prohibitio­n of same-sex marriage is indicated be- yond mistaking by today’s opinion.” It is too soon to know whether Scalia’s prediction is correct, but as a technical matter, Roberts is right to say that the issue remains undecided.

There are also hard questions about the meaning and scope of the notion of dignity. That notion should be taken not as free-standing or as a recent invention, but as a modest and historical­ly grounded effort to help specify what a denial of equal protection looks like. If the government is demeaning, humiliatin­g and stigmatizi­ng people, there is a constituti­onal problem. That problem is hardly disconnect­ed from the concerns that long ago gave rise to the national repudiatio­n of slavery and Jim Crow — and to the enduring constituti­onal principles that reflect that repudiatio­n.

As a matter of simple fact, American constituti­onal law has never been static; a discipline­d dynamism is built into our constituti­onal fabric. That dynamism is most inspiring, most constraine­d and least dangerous when the court refuses to build out of whole cloth, but instead maintains continuity with the basic purposes of the constituti­onal design. In resting its ruling on the foundation of human dignity, the Windsor opinion does exactly that.

Newspapers in English

Newspapers from United States