The Supreme Court decided June 26 same-sex marriage bans were ?unconstitutional.
Despite being happy for the thousands of activists whose hard work had at last paid off, I found it hard to be enthused by the news — not because of the result of the decision, but because of the fine print in the majority opinion.
The opinion, penned by Justice Kennedy, gave several arguments for its conclusion, the primary one being federal involvement.
If the federal government wants to support the institution of marriage, it must do so without discrimination, which means extending benefits to same-sex partners.
But Kennedy also mentions “the nobility and dignity” promised by such a “lifelong union.” Oddly, this is the part troubling me.
You probably know Supreme Court decisions set precedents for cases to come, but you might not know the right to dignity has been contested for some time now.
One of the reasons why is because the definition of dignity is nebulous. In the past, it was seen as a person’s right to not have your reputation tarnished, even if what people said about you was true. For this reason, past justices like Louis Brandeis stopped supporting such a right due to its obvious conflicts with the First Amendment.
More recently, Justice Kennedy spoke of it in his 2003 Lawrence v. Texas decision, which declared anti-sodomy laws ?unconstitutional.
In that decision, the closest he came to defining the term was “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
If you’re confused about what this actually means, you’re not alone. As best as I can fathom, it means same-sex marriage is unconstitutional because it infringes on same-sex couples’ right to express their sexual identity through marriage.
It follows, then, the act of being married is giving dignity to the couple — and the government is bestowing that dignity.
You can see why I’m disturbed. The idea dignity is anything but inherent, inalienable and universal is disturbing. People have it regardless of race, sex or sexual orientation. Furthermore, in his dissenting opinion, Justice Clarence Thomas rightly notes Justice Kennedy’s supposed right flips the idealized relationship between citizen and government.
Rather than a citizen legitimizing their government’s authority through democratic processes, the government now legitimizes its citizens by bestowing dignity. Besides, if dignity is a right, it applies to everyone. Parents might argue not vaccinating their children is part of their identity, or worse.
Justice Kennedy’s decision reflects the conclusion most Americans had come to after a cultural conversation about marriage.
Our society’s understanding of it changed from being a union ideally suited to caring for children to being a union ideally suited to establishing the love and mutual support of two consenting adults. This is fine. That’s the way our democracy is supposed to work.
What isn’t fine is Justice Kennedy’s reasoning, or the potential ramifications of his opinion. While love may have won this past weekend, I’m afraid it might have come with a cost.
awurdema@indiana.edu
