No two nodes of social meaning have changed more since the end of World War II than marriage and the scope of individual freedom protected by the Constitution. In its ruling that the right to marry must be open to same-sex couples in every state, the Supreme Court, by the slimmest of majorities, turned back efforts to disable the Constitution as a source of liberty in the realm of family life. Few if any acts of state could have conveyed the message of equality for a previously despised group more powerfully than the Court’s guarantee of access to an institution that both expresses moral norms and organizes material support. That is the good news, and it merits celebration.
But beware: There are razors in this apple. Justice Kennedy’s opinion for the Court reached for what he no doubt genuinely believes are the stars, but it wrapped a legal interpretation that is both profound and simple in a miasma of rhetoric about marriage that is both sententious and simplistic. In one of many examples, the opinion’s final paragraph speaks of the plaintiffs’ “hope…not to be condemned to live in loneliness.” Imagine what it felt like for the never-married Kagan, the divorced Sotomayor, and the widowed Ginsburg to join that language. Now imagine how much sharper the edge is for a single-mom waitress or bus driver. And consider how disconnected that platitude is from the vibrancy of a community that has generated new forms of kinship in moments of love and grief, sickness and health.
Lawyers are trained to separate the precise holding of a decision—the nugget that will have binding precedential effect—from its dicta, the peripheral parts of the analysis that are not necessary to the holding. Dicta, we learn, can be as easily ignored as cited by future courts. Lawyers and judges in later cases may reiterate all the twists and turns in the reasoning of a prior Supreme Court opinion, expanding upon and extending them, or they may bypass the inessential aspects entirely.
Justice Kennedy’s views on the “nobility” of a “lifelong union” are dicta, but that may be a formality. We would be arid technocrats to believe that social meanings are constructed only by the precise logic of juridical building blocks. The Constitution provides Americans with a culture as well as a form of governance, and its meanings are constituted and reconstituted by all of our understandings, not just by the enforceable determinations of state actors.
Social conservatives will accuse the majority of recklessly imposing an egalitarian rather than a traditionalist concept of marriage. They are asleep at the switch. The genius and the danger of Justice Kennedy’s opinion is that it swings both ways. Its radicalism lies in its overreach on behalf of a conservative ethos. Whether its ultimate net effect is liberatory or restrictive will depend in large part on whether its bottom line upholding of justice sinks beneath the weight of its clouds of dicta. Not only is it far too soon to know the answer, but in fact, the answer does not yet exist. It is up to us as citizens to create it.
For better and worse, the opinion in Obergefell v. Hodges will rank as one of the most important decisions in the history of the Supreme Court. Let us count the ways.
The Constitution Lives
For Chief Justice Roberts, the marriage case was the occasion for an eloquent call to forever tether constitutional protections to their historical underpinnings and to remove the judiciary from its role as counterweight to majoritarian injustices. His opinion is neither hateful nor unprincipled. It begins by noting that the plaintiffs “make strong arguments rooted in social policy and considerations of fairness,” before going on to reply: “But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.” Thank God it was a dissent.
Discerning the proper balance between deference to democracy and protecting important human liberties from election results is a central and enduring American tension. It is baked into constitutional democracy. No one argues that judges should have the power to casually invalidate democratically enacted laws based on their personal preferences. But neither should principles of justice be frozen in the past. Obergefell is as much about this tension as it is about sexuality and marriage.
Unrelenting adherence to the framers’ language as it was understood to apply when it was drafted, regardless of how cramped that vision, is a narrow and implicitly hierarchy-preserving lodestar. Therein lies the transcendent importance, not of marriage in any form, but of reading the Constitution as a living text, with a built-in commitment to the capaciousness of its invocations of liberty and equality. Indeed, the genius of the Bill of Rights and the Reconstruction Amendments derives from the framers’ aspirations and their understanding that those aspirations could forge a bond with the future. Fidelity to this aspect of our heritage means vigilant regard for the liberty for all, even if the challenge of something like same-sex marriage is as new to our generation as the norm of democracy was to European monarchies.
The single most important theme in the opinion is that the Constitution provides not merely space but also support for expanding the perimeters of human rights. Obergefell recommits the Court to an understanding that “the nature of injustice is that we may not always see it in our own times” and that the framers “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” Its grace note is the reminder to evolve.
Many critics will say, correctly, that Obergefell does nothing to ameliorate the retrenchment that the current Court has forced onto the racial-justice and reproductive-rights movements, not to mention its reinforcement of democracy for sale. True. But Obergefell does achieve one not small thing, for which progressives should be grateful. It keeps hope alive.
The essential holding in Obergefell is easy to state: The right to marry has long been considered a fundamental right under the Due Process Clause, meaning that a state may not deny it to an individual unless necessary to achieve a compelling public interest. There is no such interest in denying that right to same-sex couples, a conclusion fortified by the also long-recognized principle that states must apply laws equally, all the more so when they entail fundamental rights.
That’s it? Basically, yes.
When the debate is framed in these liberty terms (i.e., access to marriage is protected as a liberty that cannot be denied absent due process), the only real question is whether the fundamental right to marry includes same-sex marriage, or whether marriage and same-sex marriage are two different animals, the first the basis for the decisions protecting a right to marry, the second something new and different and outside the shelter of the Constitution. The revolution in social meaning wrought by the LGBT-rights movement, which will seem banal in 20 years if not sooner, has been to shift the predominant understanding of gay marriage from the category of gay to the category of marriage. If it is simply a variation on marriage—think covenant marriage, teenage marriage, remarriage—then whether it appeals to you or not, in the end is just another form of marriage. That, in a nutshell, is the evolution that brought the Court, the president, and the majority of Americans to support for marriage equality.
The alternative legal frame for marriage equality is to flip its two components and prioritize the equality claim: States must treat lesbian and gay persons equally under the law. As is immediately apparent, this frame has an instantly broader reach than marriage and is less contingent than a liberty frame on how important the nature of the differential treatment is. (Whether the license in question is a hunting license or a marriage license, and even though the state can establish criteria for eligibility for both, those criteria cannot include, for example, race or sex.)
The plaintiffs, while hardly complaining of the outcome, wanted to win on equality grounds, as did the solicitor general on behalf of the United States, whose brief made only Equal Protection Clause arguments. It may be that some of the justices who joined the Kennedy opinion pressed for that analysis to be part of the reasoning as well, because a section of the opinion addresses the equality argument, even while framing it as secondary, and concludes that bans on same-sex marriage violate equal protection as well as due process.
The Court has relied on both liberty and equality principles in several prior cases, but Obergefell makes clear that there is a third, apparently blended concept at play, and that it “furthers our understanding of what freedom is and must become.” At the end, literally, the strands of autonomy and equality reasoning converge in the final sentences of the opinion. Justice Kennedy reframes the plaintiffs’ claim as one “for equal dignity in the eyes of the law, and declares that “the Constitution grants them that right.”
The theme of dignity recurs throughout Obergefell, suggesting that Justice Kennedy is working on what we might call a jurisprudence of dignity. He has previously used the term and the underlying concept in other LGBT-rights cases as denoting a norm of respect. Dignity first appeared in Lawrence v. Texas, the 2003 opinion that ruled sodomy laws unconstitutional, and it returned in United States v. Windsor, the 2013 decision that found the Defense of Marriage Act unconstitutional. Obergefell, with its explicit interweaving of liberty and equality, hints that the best name for that blend is a constitutional concept of dignity.
“Dignity,” as Columbia Law Professor Katherine Franke has written, is a land mine. It is emerging from a series of cases that can be read to suggest that justice for LGBT persons resides in a quid pro quo of equal treatment in return for conformity to the norms of respectability. Are married LGBT couples the new deserving poor? If so, this is thin gruel.
Part of the impulse behind Justice Kennedy’s effort to conceptualize a new variant of individual rights (if that is what this is) may be that, because dignity is new as a part of the constitutional lexicon, he is not beholden to an established standard for its assessment. I am thinking here of the tiers of Equal Protection analysis, for example: strict scrutiny, intermediate scrutiny, and rational-basis review. Both scholars and lower courts have criticized Justice Kennedy’s LGBT-rights opinions because they are grounded in vague generalities and because they eschew application of the various tests that have been established for determination of when individual rights trump discriminatory laws. If “equal dignity” is a new concept of rights, then the current Court and Kennedy cannot be faulted for ignoring the textbook list of standards that apply to other approaches.
Whatever this concept of dignity amounts to in constitutional law, it is a work in progress. We may see it migrate to other issues or not. It may outlive Justice Kennedy’s time on the Court, or not. Its meaning is unclear. Some scholars, like Yale Law Professor Bruce Ackerman, view it favorably, as a signal of empathy for stigmatized groups. With Obergefell, it has become an idea to contend with.
The Danger of Success
The Supreme Court has now ended the last blanket exclusion under law of lesbian and gay Americans. This is huge. But it also creates an enormous challenge for the LGBT-rights movement, one that is perhaps even bigger than taking on marriage once seemed. Winning is seductive; that is the danger of victory when so much remains to be done. Some of what is needed consists of securing the remaining elements of an anti-discrimination model: a full set of nationwide civil-rights laws, for example.
A more fundamental question is whether this movement will direct its resources toward more ambitious goals: to an enlarged vision of legal protection for parenting and partnering that is not bounded by marriage, for example, or to fighting the legal abuses suffered by sexual outsiders who are incarcerated or at risk of deportation. These examples and many others are at least partially constructed by how the dynamics of sexualized and racialized oppression mutually reinforce each other. Bringing even a semblance of justice to those living on the margins will not be easy. Like everyone else, the LGBT-rights movement needs to evolve.