Friday, July 05, 2013

Dignity's Debut: A Happy Marriage of Liberty and Equality

To understand the Court's recent decision in United States v. Windsor, striking down the federal Defense of Marriage Act, it is useful to first see what this case is not, but what, in lesser hands, it might have been.

This is not a case about privacy, like Lawrence and Bowers before it. At least since the 1960s and '70s, privacy has been the linchpin of the Due Process clause insofar as it protects intimate and private decisionmaking; it has been particularly important in cases relating to sexual intimacy and marriage. But privacy is not even mentioned here.

Nor is this a case about federalism, like so many other Supreme Court cases of the last 20 years, including cases that should have been about individual rights, like this term's Voting Rights Act case. (Because the case was decided under the Fifth Amendment and not, say, the 10th Amendment, its logic applies equally to the states, thereby potentially imperiling even state efforts to redefine marriage as exclusively heterosexual).

Nor does this case follow the logic of what's sometimes called "representation reinforcement," like Romer v. Evans, where the Court invalidated a state constitutional amendment because it undermined the political process: by prohibiting only sexual minorities from gaining legal protections against discrimination, it "tend[ed] to seriously curtain the operation of [] political processes ordinarily to be relied upon to protect minorities," as Justice Stone famously put it in Carolene Products' footnotefour.

In fact, Justice Kennedy's opinion in Windsor goes much further than any of these well recognized rationales. In the process, it radically alters the landscape of rights in a number of ways.

Unlike any other case that the Supreme Court has ever decided, the Court here relies emphatically on the principle of human dignity. It explicitly refers to "dignity" 9 times, and refers to other forms of the word an additional 3 times in a mere 26 pages. No other Supreme Court case refers to human dignity more than once or twice, and usually in passing, and most often in dissents.

But this case refers to it, refers to it often, and refers to it in a variety of ways: the dignity of the person to make intimate and personal decisions, the dignity of the status of being in a same sex relationship, the dignity of the class in a community, and the dignity of same-sex marriage itself.

And in this case, unlike others in which dignity is mentioned, the concept is not mere window dressing: it is the exclusive basis for the opinion. Indeed, when the Court excoriates Congress for passing DOMA out of "a bare congressional desire to harm a politically unpopular group" it is saying that there are limits to what a majority of the people can do to a minority. Even in a winner-take-all democracy like ours, there are simply some things that people can not do to each other. The ultimate rationale for this limitation is that a constitutional system recognizes the inherent and inalienable dignity of each person. That dignity immunizes every person from certain harms that might otherwise be perpetrated against him or her. There is in our constitution no explicit explanation or reason given for this limitation -- no mention of human dignity and certainly no "right to dignity," as exists in the constitutions of most nations around the world. But Justice Kennedy sees it implicitly. And he sees it profoundly. (I've written about this understanding of constitutional dignity in Dignity Rights.)

To recognize dignity as a matter of constitutional doctrine, he has to braid together strands of the Due Process Clause with strands the Equal Protection Clause: "The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws," he says, citing federal equal protection cases.  He says that the law violates the liberty protected by the Fifth Amendment but repeatedly relies on equality language ("equal dignity" the "evolving understanding of the meaning of equality"), equality theory ("What the State of New York treats as alike the federal law deems unlike…"), and equality precedents (e.g. Bolling v. Sharpe, the federal companion to Brown v. Board and USDA v. Moreno).

Up until now, the liberty protected by the due process clause and the equality of the equal protection clause have been doctrinally and conceptually distinct (even when incorporated), the former protecting conduct, while the latter protects status. Same sex relationships have always confounded the Court which has never been able to decide whether the constitutional harm is  to liberty or equality (ie whether homosexuality is a matter of what one does or who one is). Now, the Court has united them, in the hands of human dignity -- an unwritten but finally recognized guarantee of the United States Constitution.


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