RBGG’s Sandy Rosen, Ernie Galvan, and Ben Bien-Kahn co-authored this piece that originally appeared in Casetext.


In Praise of Justice Kennedy’s Jurisprudence of Human Dignity 
The Lasting Takeaway from the Obergefell Decision

The Supreme Court once again has made June 26 a momentous day for the principle of “equal dignity in the eyes of the law.”  Obergefell v. Hodges, No. 14-556 (U.S. Jun 26, 2015), at *28.  Two years to the day after the Court declared unconstitutional the core provision of the Defense of Marriage Act, and thirteen years to the day after it held that the liberty to engage in intimate conduct between two consenting adults is constitutionally protected, a 5-4 majority of the Court held that the fundamental right to marry the person you love applies equally to everyone, regardless of sexual orientation.

Our law firm  filed an amicus curiae brief in Obergefell v. Hodges on behalf of several gay men who were subjected to sexual reorientation therapy, the mother of one of the men, and the sister of a gay man who was forced into sexual reorientation efforts as a child and later committed suicide.  Our clients shared their powerful stories with the Court to reveal the extent that people have been and continue to be subjected to discrimination and prejudice based solely on their sexual orientation, an inherent and immutable trait, and to ask the Court to strike down discriminatory marriage laws.  We filed similar briefs in the Defense of Marriage and California Proposition 8 cases. 

Justice Kennedy, writing for the majority in Obergefell, grounded equal marriage rights in both the Due Process and Equal Protection clauses of the Fourteenth Amendment.  The dissenters and some commentators have faulted Justice Kennedy for not precisely situating equal marriage rights within the familiar “tiered scrutiny” map for equal protection challenges.  These critiques also fault Justice Kennedy for using terms outside the tiered scrutiny map, such as dignity, individual autonomy, expression, intimacy, and spirituality, in discussing the individual interests harmed when governments give anti-gay prejudice the force of law.  The dissenters say that there is something fuzzy-headed about Justice Kennedy’s invocation of such elevated notions, and that he should instead stick to more technical-sounding tiered analysis.  The dissenters are wrong. 

Justice Kennedy’s invocation of the concepts of human dignity and individual autonomy are a welcome and much needed reminder of the most important limitation on government power in America’s republican system of government.  That limitation is respect for individual human dignity.  Governments have awesome powers at their disposal.  But at the core of each human being is an inviolable spirit that deserves to be beyond the reach of government power.  When Justice Kennedy writes about the links between marriage and the rights of each individual to cultivate happiness through intimate relationships, he vindicates the highest tradition of republican government, which is stated in our Declaration of Independence—that government exists to serve the interests of the human spirit, not the other way around.  Nothing could be further from the mark than the accusation that Justice Kennedy’s individual rights jurisprudence somehow tarnishes the Supreme Court’s intellectual rigor by failing to adhere to the tiered scrutiny pigeonholes.  On the contrary, by recognizing that some interests are so fundamental as to transcend the tiered scrutiny scheme, it is Justice Kennedy, not the dissenters, who has obeyed Chief Justice Marshall’s injunction that “We must never forget that it is a constitution we are expounding.”  McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819). 

The courts still need the tiered scrutiny system, of course.  For future cases, there can be no doubt that Obergefell requires that government classifications based on sexual orientation be subject to strict scrutiny.  Justice Kennedy’s opinion described the dignitary harms that resulted from the long history of governments and communities treating same-sex intimacy as immoral and homosexuality as a disease, and the growing acceptance that “sexual orientation is both a normal expression of human sexuality and immutable.”  (Slip. Op. at 8.)  Now that the Court has recognized that sexual orientation falls within the individual’s right to his or her own identity, off-limits for government interference, it is virtually impossible to imagine any government classification based on sexual orientation that could meet any level of scrutiny within the traditional tiered system. 

While tiered scrutiny is a useful analytical tool, Justice Kennedy’s jurisprudence of human dignity is far more important.  It is our best protection against tyranny.  Even when government power over the individual is at its zenith—when the government takes away physical liberty and imprisons the individual for a crime—the government has no right to invade the individual’s core of human identity and dignity.  Democracies and despotisms both regulate human conduct, even up to the point of taking away physical liberty.  What separates democracies and despotisms is respect for the inner dignity of individuals.  That is why torture and inhumane treatment are off-limits in a democracy.  “As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons.”  Brown v. Plata, 131 S. Ct. 1910, 1928 (2011).

 In the understanding of human dignity as inviolable, there is common ground with Justice Thomas’s dissent in Obergefell, where Justice Thomas correctly argues that human dignity does not come from government, but comes before and is superior to government.  Justice Thomas’s jurisprudence of dignity, however, exists in an airless, frictionless plane of abstract reasoning, where the acts of government cannot work any harms to human dignity.  In real life, however, human dignity can be injured.  Unjust government actions —such as licensing provision of so-called “sexual reorientation therapy” to minors that injured our clients—attack the essence of human dignity.  That can result in real harms, including and up to distress so awful that it drives people to suicide.  Justice Kennedy and the Obergefell majority are right to  police the boundaries that limit government action to its proper sphere vigilantly, and to keep government out of  the most intimate and personal expressions of human identity and dignity.  

Proper respect for human dignity also requires that we avoid the frankly shocking historical misunderstanding behind Chief Justice Robert’s invocation of Dred Scott v. Sandford in his Obergefell dissent.  The Chief Justice writes as if the error of Dred Scott was the particular mechanism of constitutional analysis it employed, the mechanism that came to be known later as substantive due process.  The error of Dred Scott is far more profound—and it is an error that we risk repeating if we fail to heed Justice Kennedy’s clarion call to respect the essence of human dignity.

The error of Dred Scott is its two-fold denial of the human essence of African Americans.  Dred Scott expressly states that its ruling is grounded in the belief that African Americans “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”  Dred Scott v. Sandford, 60 U.S. 393, 407(1856).  And—here is the second fold—Dred Scott attempted to ground the denial of African-American dignity in Chief Justice Taney’s reading of colonial history and of the racial attitudes of the founders.  Chief Justice Taney wrote that it was necessary to consult history’s so-called “fixed opinions concerning that race,” in order to properly interpret the Constitution as forever requiring that the government of the United States act as if African Americans had no essence of human dignity.  Dred Scott v. Sandford, 60 U.S. 393, 409 (1856).  This arrogant grounding of hateful prejudice in pseudo-history, this usurpation of future generations’ right to discover the inherent worth of persons previously cut-off from the status of fellow humans, is the error of Dred Scott that the Obergefell dissenters would perpetuate .  

Chief Justice Roberts’ Obergefell dissent also errs in stating that Dred Scott was overruled on the battlefields of the civil war.  To say that is to ignore the abandonment of Reconstruction, the rise of Jim Crow, Plessy v. Ferguson, lynching, and the racial terrorism  some of which persists to this day, as the June 17, 2015 mass shooting of African Americans at Emanuel African Methodist Episcopal Church in Charleston, South Carolina demonstrates.  Americans rose up to end these evils in the civil rights movements of the 1950s and 1960s.  Dred Scott and its post-Civil War bedfellow Plessy were overruled only as African Americans demanded full acceptance of their shared humanity, and the Court answered their demand  by ending separate-but-equal in Brown v. Board of Education.

 Dred Scott is overruled—and future Dred Scotts are prevented—only when the Court recognizes that human beings are and have always been imperfect in their appreciation of the full dignity of their fellow humans, that we are always overcoming the blinders of tribalism and prejudice.  The constitution’s respect for human dignity must evolve with the people’s expanding understanding of the essential worth of their fellow human beings: 

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 Fourteenth Amendment did not presume to know the extent of freedom in all of 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. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Obergefell v. Hodges, 16 No. 14-556 (U.S. Jun 26, 2015), at *11. State by state, marriage equality has been becoming the law of the land.  But when people’s rights are being violated, the courts may not wait.  It was past time for the Court to recognize that governments have no business interfering with the pursuit of love and happiness in the name of irrational prejudice.  “[A] claim to liberty must be addressed.”