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Wednesday, April 29, 2015


Dignity matters

Dignity played a prominent part in the Obergefell v. Hodges oral arguments before the U.S. Supreme Court on Tuesday. The funny thing about dignity is who deserves it depends on who is making the argument.

To borrow climate change deniers' popular formulation, I'm not a scientist lawyer, but I'd be embarrassed to be making the arguments Michigan's former solicitor general presented against marriage equality before the Supreme Court on Tuesday. John J. Bursch, representing Kentucky, Michigan, Ohio, and Tennessee, argued right out of the gate that recognizing same-sex marriage will harm the state's interest in regulating procreation.

Regulation and Big Gummint are blasphemies in red states such as Kentucky and Tennessee. Arguing on their behalf for preserving states' interest in regulating procreation might have been enough to call the rest of Bursch's presentation on account of Godwin's Law or him being a communist. But no one blinked. Bursch persisted:

The first sign of trouble for the states came in a dog that did not bark: Kennedy, whose respect for federalism is oceanic, seemed uninterested in the question of a state’s sovereign prerogative to exclude same-sex couples from the institution of marriage. But the tide of argument truly seemed to turn when Bursch tried to give shape to the phantom menace posed by same-sex marriage; the only real danger he could point to was that fewer straight couples would marry or stay married, which would lead to more children not being raised by their biological parents. “The out-of-wedlock birth rate in this country has gone from 10 percent to 40 percent from 1970 to today,” he said.

And here the trouble began. “Under your view, it would be difficult for same-sex couples to adopt some of these children,” Kennedy said. “I think the argument cuts quite against you.”

Justice Anthony Kennedy was not done. As Dahlia Lithwick notes with a grin, Kennedy is "the dignity-whisperer":

So there is a rather extraordinary moment Tuesday morning, as the Supreme Court hears historic arguments in the marriage equality cases grouped under Obergefell v. Hodges, when Kennedy finds himself in an argument with John Bursch, Michigan’s special assistant attorney general, about whether marriage is a dignity-conferring enterprise, or not. Bursh, defending his state’s ban on same-sex marriage, is explaining that the purpose of marriage is not to confer dignity but to keep parents bonded to their biological children.

Justice Kennedy—who opened argument Tuesday morning with the observation that this whole case is about an institution whose definition has gone unchanged for millennia—looks rather shocked. The author of the majority decision outlawing sodomy bans in Lawrence v. Texas (“Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons”) and the decision striking down the Defense of Marriage Act in United States v. Windsor (“It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage”) did not want to hear this. Indeed, it seems like Kennedy wanted it to be perfectly clear that he is the guy who gets to say that if marriage is nothing else, it is a dignity-stamper.

"You know, dignity may have grown up around marriage as a cultural thing," Bursch argued, "but the State has no interest in bestowing or taking away dignity from anyone ..." Which brings me back to why "dignity" jumped out at me.

Bursch's view of dignity — Kentucky's, Michigan's, Ohio's, and Tennessee's view — contrasts sharply with marriage equality opponent Rep. Paul Ryan's view. The Wisconsin Republican believes, "Promoting the natural rights and the inherent dignity of the individual must be the central focus of all government policy." That would seem to align Ryan with Kennedy. Except for Ryan it depends on which natural rights and whose inherent dignity we're talking about. As Ryan explained in a Reagan-esque, four-Pinocchios anecdote delivered at the annual Conservative Political Action Conference in March, feeding poor schoolchildren lunch is counterproductive:

"What the left is offering people is a full stomach and an empty soul...People don't just want a life of comfort. They want a life of dignity..."

Yet that's just what the conservative hero Ryan and too many states refuse to LGBT couples. We'll have to wait until June to see how many other Supreme Court justices share Kennedy's interest in dignity.