Wednesday, April 29, 2015
While other Justices focused more heavily on ideas of liberty and equality during yesterday's oral arguments on same-sex marriage at the Supreme Court, Justice Kennedy's questioning of the lawyer defending the state respondents' definition of marriage focused on the idea of dignity. Unfortunately, Justice Kennedy's opinion for the Court in Windsor shows him to have previously been deeply confused about the sources of dignity in a limited, republican government.
Dahlia Lithwick's write-up for Slate captures Justice Kennedy's perspective in yesterday's first argument well:
As for Justice Anthony Kennedy, if we know anything at all about him it is this: You don’t tell him what dignity is, or who has it, or how much it counts. As most Kennedy-watchers well know, to the extent that Kennedy’s vote is in play on most issues, what he is contemplating is dignity. Often balanced against other dignity. He’s the dignity-whisperer.
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Later in the argument, Bursch [representing the state respondents] circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”
Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.
It is, of course, degrading to Justice Kennedy to be spoken of in this way. But is it inaccurate? Irreverent, sure. But not inaccurate. Indeed, there is something already degraded about the Supreme Court as an institution when one arguably requires such irreverence to accurately account for the dynamics of oral argument as Lithwick has done here.
As for the "ennoblement" that Justice Kennedy believes the state confers through its marriage licenses, one might note somewhat pedantically that one cannot take ennoblement-through-state-marriage-law too literally as a proposition of law. After all, Article I, Section 10 provides that "No State shall ... grant any Title of Nobility." And nobody thinks (or ought to think) states have been violating this constitutional prohibition by conferring the designations of "husband," "wife," and "spouse" on individuals.
More fundamentally, and more to the point, as I previously wrote in criticism of Justice Kennedy's opinion in Windsor, the State does not confer dignity:
Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not "confer" dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary.