Jonathan Turley: The trouble with the ‘dignity’ of same-sex [and poly] marriage

Washington Post

Jonathan Turley is the constitutional expert at George Washington University who represents the Kody Brown polygamous family (of "Sister Wives" fame) in their fight against the State of Utah. In the Sunday Washington Post today, he cites the rights and dignities of us polyamorists (yay!) but presents a different slant on the Supreme Court's gay-marriage decision.

As in, be careful what you wish for.

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

By Jonathan Turley

...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....

...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.... 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....

...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.”

Read the whole piece (July 5, 2015).

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