Today Liberty Expands For All Americans; With One Limitation For Alternative Families
Today’s Supreme Court decision brings marriage to same-sex couples across the country, but the majority’s reasoning expands freedom for all Americans in three profound ways, while potentially limiting it for those families not led by married couples.
1. New Life for A Living, Breathing Constitution
A core debate in constitutional reasoning is whether the enumerated rights are defined by our forefathers’ intent, or are animated by our changing times. This debate is often framed as an argument between an “originalist” reading of the Constitution and an “aspirational” view of the text. If today’s decision was up to Scalia, “When the 14th Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”
Kennedy eloquently responds, “The nature of injustice is that we may not always see it in our own times… the generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
2. The Role of Courts and Constitutions is to Protect Individuals and Minorities
Another core debate among the justices is how deferential courts should be to legislatures and the democratic process. So Roberts asks, “Just who do we think we are?… Five lawyers have closed the debate and enacted their own vision of marriage as constitutional law”?
Again Kennedy, writing for the majority, eloquently responds: “The Nation’s courts are open to injured individuals who come to them to vindicate their own direct personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principals to be applied by the courts. This is why fundamental rights may not be submitted to a vote, they depend on the outcome of no election.”
3. Dignity For All
Kennedy sums up the case in two simple sentences: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
The right to equal dignity is an emerging constitutional principal. In fact, Justices Roberts and Thomas write that there is no “Dignity Clause” in the Constitution, and for Thomas, neither constitution nor government action can bestow it. We should expect no more than the right to be left alone.
But today the majority endorses the right to equal dignity, a concept nurtured and expanded largely by Kennedy. He traces it from the other side of the dignity coin, the unconstitutional animus against LGBT people that led him to strike down Colorado’s Amendment 2 in 1992, through his articulation of it in Lawrence in 2003 striking down the country’s remaining sodomy laws; and then again in Windsor in 2013 when he struck down the Defense of Marriage Act.
We’ve come a long way from Bowers, baby: “There is a dignity in the bond between two men and two women who seek to marry and in their autonomy to make such profound choices.” But this is not just for LGBT people, this is a “promise of nobility and dignity to all persons,” a growing positive expectation from our government and from each other. We can expect more than just being left alone or tolerated. It could become a right to define who we are and to flourish.
4. The New Normal
But today’s decision does not extend equal dignity to all. On marriage’s centrality to our society, if not its definition, Kennedy is in complete agreement with the four dissenters. He declares that marriage is the “keystone to our social order,” “the foundation of the family and of society, without which would be neither civilization nor progress.” Marriage is a relationship above all others (“No union is more profound than marriage”) and the best for raising children (it “affords the permanency and stability important to the child’s best interests”).
Many more same-sex couples will marry now. That, and having the freedom to do so, is reason to celebrate. But many same-sex and different-sex couples will not. Many people will continue to be single parents by choice or default, or they will co-parent with friends, family members or romantic partners they choose not to marry. Today’s broadening of liberty and equality not only leaves these families out; it arguably relegates them to a second-class. But on this front, it is not game over. As Kennedy makes clear, this is a living constitution, and we must take up his call, through “pleas and protests,” to make these “new dimensions of freedom,” and dignity, apparent.
Roberta A. Conroy Scholar of Law and Policy & Executive Director, The Williams Institute, UCLA School of Law and
Assistant Dean of Academic Programs and Centers, UCLA School of Law