Kennedy's doctrine of dignity weighs heavily in marriage debate

Marriage as it has always been understood had its day in court. But throughout the 2 1/2-hour oral arguments over same-sex marriage last week at the Supreme Court, neither side of the debate seemed to understand the real meaning of marriage, nor the Court’s role in defining it.

Justice Anthony Kennedy, considered the swing vote on the issue, got into an exchange with John Bursch, attorney for the states who want to make their own marriage laws, about whether marriage confers dignity.

“What they are asking you to do is take an institution which was never intended to be [dignity]-bestowing and make it [dignity]-bestowing. That’s their whole argument,” Bursch said.

“I don’t understand this is not dignity-bestowing,” Kennedy responded. “I thought that was the whole point of marriage. It bestows dignity on both man and woman in a traditional marriage.”

Justice Kennedy used the word “dignity” a lot. He has almost single-handedly turned dignity into a doctrine, starting in the 1990s when he wrote that dignity was a basis of why the abortion decision Roe v. Wade should be upheld in another case.

He used it in 2013’s United States v. Windsor case striking down the federal definition of marriage. The result was a domino effect of judges overruling voter-approved marriage definitions in the states. Lawyers started using it as the basis for their arguments.

Solicitor General Donald Verrilli picked up on it, and the word “dignity” came up in his opening statement on behalf of the federal government: “The opportunity to marry is integral to human dignity. Excluding gay and lesbian couples from marriage demeans the dignity of these couples.”

The problem is that dignity isn’t a constitutional concept. It’s the court’s job to interpret the Constitution, not bestow dignity. The court doesn’t define the term. Yet Kennedy’s emphasis on it has caused other judges to hold it up as a right, like equality and liberty.

This is new territory.

If dignity is the basis for granting a new right, the chain of logic could allow any group to claim dignity violations. Jeffrey Rosen, writing in The Atlantic, used the examples of Obamacare violating the dignity of Americans who don’t want to be forced to buy something they don’t want, tobacco lovers feeling undignified by no-smoking rules, or gun owners losing dignity when gun laws are passed.

Driving the redefinition of marriage are the personal stories of the petitioners, some already-married same-sex couples with children.

“In terms of the question of who decides, it’s not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, not the government,” attorney Mary Bonauto, said, meaning each person gets to decide what the government should recognize as marriage.

But if that is so, then rules against incest, against the number of people in a marriage, and age restrictions can be thrown out, as well.

Justice Antonin Scalia predicted this expansion of individual rights more than a decade ago. In 2003, the court’s majority overturned a state sodomy law in Lawrence v. Texas. Scalia’s dissent then stated that decision was the beginning of the end of all morals legislation.

So what’s next in that progression? Where does it end? What legal argument props up laws against bigamy, against adult incest, against prostitution? That question has never been answered, but don’t be surprised when it is.

Listen to Legal Docket on The World and Everything in It.