Justice Kennedy's Dignity

Justice Kennedy’s majority opinion in United States v. Windsor did much more than declare unconstitutional section 3 of the Defense of Marriage Act. It did more than affirm the right of states to allow gay marriage; it went beyond insisting that the Federal Government must recognize those lawful unions. Kennedy’s opinion, as Justice Scalia sees clearly and Justice Roberts strives futilely to deny, argues forcefully that depriving gay people of the right to marry is an affront to their basic human dignity.  In making this argument, Kennedy opens two doors. First, he signals that the same 5-4 majority might very well uphold a challenge to those presently existing state laws that deny gay people the right to marry. He also takes one more step in the evolution of dignity as a meaningful legal ideal.

Justice Kennedy invokes the word “dignity” 11 times in his short majority opinion. When states recognize the validity of same-sex marriages, as New York does, they confer dignity on that personal and enduring bond.

The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas. By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.

The marital status, Kennedy continues, “is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” To recognize same-sex marriages as New York and other states have done is to dignify same-sex unions.

Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

The converse of such dignified recognition is, of course, the denial of dignity when same-sex marriages are not affirmed. The Defense of Marriage Act, or DOMA, “seeks to injure the very class New York seeks to protect.” The injury is understood in a few ways. First, it denies gay people the equal protection of the laws:

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

But Kennedy goes far beyond the claim that DOMA violates equal protection. He adds that the Defense of Marriage Act is a violation of dignity.

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.

Kennedy’s statement should be obvious, and to bring the point home he elaborates on the indignity of DOMA. The statute

humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Kennedy’s reasoning here is hard to limit to simply those states that have passed laws legalizing gay marriage. The point is that gay couples across the country are living together and raising children in matrimony. If marriage confers dignity on the act of living together and raising a family, than the denial of marriage is a denial of dignity. It does seem likely that Kennedy’s opinion signals that the Court is ready to invalidate state laws prohibiting gay marriage. What is undeniable is that Kennedy’s opinion is another step in the introduction of dignity as a meaningful idea in U.S. Constitutional law.

Justice Kennedy’s decision in United States v. Windsor is well worth reading. You can skip section II, which addresses technical legal questions of standing. The rest, however, is compelling reading. There are few legal decisions to really celebrate these days. This is one that merits attention. It is your weekend read.