Anthony Kennedy's awkward gay-marriage revolution: Why his SCOTUS opinion was imperfect — but also deeply profound

Justice Kennedy made history with an imperfect legal argument. But his central idea, "dignity," is revolutionary

Published July 2, 2015 3:25PM (EDT)

Justice Anthony Kennedy         (AP/Damian Dovarganes)
Justice Anthony Kennedy (AP/Damian Dovarganes)

As everyone expected, the Supreme Court decided that same-sex couples have a right to marry by a 5-4 margin, with Anthony Kennedy writing a majority opinion full of vague talk about dignity. His opinion relied on his strange idea that marriage is fundamentally about conferring dignity on people. There is something to this. Everyone understands that dignity was at stake in this decision. (The headline on the front page of the New York Times the next day was simply “Equal Dignity,” quoting those words from the opinion.) But he delivers that news in a garbled way.

In fact, it is only in the past couple of decades that exclusion from marriage has become a mark of the indignity of same-sex couples. Denial of the right to marry had become an insult. And the reason the issue has become so central to gay rights struggles is that it also addressed the core question of the value of gay relationships.

Kennedy declared: “The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.” Justice Clarence Thomas sensibly objects that government is “incapable of bestowing dignity,” and observes: “People may choose to marry or not to marry. The decision to do so does not make one person more ‘noble’ than another.”

Kennedy has been enamored of this notion for a while. In another majority opinion in 2013, United States v. Windsor, holding that the federal government had to recognize same-sex marriages solemnized under state law, he wrote: “The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Did it? This is an odd sort of creation myth: The State said, let there be dignity for same-sex couples. And there was dignity. Excuse me, but I thought that same-sex couples had a dignity and status of immense import whether or not the state saw fit to recognize it.

At oral argument in this latest marriage case, when the state’s lawyer argued that marriage law had nothing to do with anyone’s dignity, but was about encouraging bonds between adults and children, Kennedy responded: “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. . . . I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.”

In fact, “the whole purpose of marriage” has changed radically over time. The earliest purposes of the institution appear to have involved forging ties between nomadic bands through the exchange of women. Since then, it generally has existed to regulate and license sexual intercourse, and to manage its consequences. Dignity had nothing to do with it. Christianity, which arose after marriage had been around for millennia, introduced the idea that marriage is a sacrament, but even this did not confer on the couple a dignity it did not already have. I have been studying arguments about marriage for decades, and I have never run across anything like Kennedy’s theory. He is, in short, a crank.

Yet he is on to something.

Dignity has always been the core issue for the gay rights movement. Gay people have been stigmatized and despised. Violence against them has been common, and for a long time police tolerated it or even perpetrated it themselves. The movement has concerned itself with a huge range of issues, including sodomy laws, AIDS, discrimination, and parental rights, but the central evil is America’s stupid and brutal tendency to regard gay people as scum.

The association of marriage with dignity is a very recent development. From the beginnings of the gay rights movement, same-sex marriage was generally recognized as politically impossible. Pressure for some kind of relationship recognition started to build in the 1980s because of the AIDS epidemic and the lesbian baby boom. AIDS victims often had to rely on the assistance of partners who were regarded by the law as legal strangers to them, and so sometimes could not visit their partners or make medical decisions for them. A surviving partner sometimes lost his home when his partner’s biological family contested his will or claimed a jointly owned home or property. The willingness of some courts to set aside wills of gay testators sometimes led partners to settle for a fraction of their inheritance. At the same time, increasing numbers of lesbian couples were having children, typically through the use of donor sperm. They worried about what would happen if the biological mother died and a relative contested the right of the surviving partner to continue to have a relationship with the child. Difficulties also arose when a couple separated after one of them had given birth to a child who both had raised. The nonbiological mother had no legal relationship with the child and no right to visitation, and the biological mother had no claim for child support. So gay couples began to campaign for somerecognition of their relationship under the rubric of “domestic partnerships.” They didn’t use the term “marriage,” because they knew that wasn’t going to happen.

And then, suddenly, it did happen.

In 1993 the Hawaii Supreme Court unexpectedly indicated that that state would shortly have to recognize such marriages. Same-sex marriage immediately became a national issue. In 1996, Congress responded by enacting the federal Defense of Marriage Act (DOMA), the law the Court struck down in Windsor. Almost every state also enacted mini-DOMAs, declaring that they would not recognize same-sex marriages valid in other states.

Some on the religious right observed that same-sex marriage was a better fundraising issue for them than even abortion. This presents a puzzle. According to what view of the world could same-sex marriage possibly be worse than abortion, when you believe that abortion involves the killing of millions of babies? But for these people, abortion may be a great moral evil, but it is not one that the state participates in. The state merely tolerates it. State recognition of the wrong kind of marriage is, the thinking goes, a kind of sacrilege, a profaning of the temple.

The notion of gay people as vile contaminants was a depressingly familiar one, and gay people quickly realized that those were the stakes of the marriage debate. The marriage issue also mattered because of the nature of the institution. Married people have sex. Society knows that they have sex. It thinks that’s ok. In fact, it’s more than ok; it’s expected, and good. The stigma against homosexuality is tightly tied to the condemnation of the sexual act. Recognition of same-sex marriage necessarily reverses this valuation. It logically implies that homosexual sex is good. And if homosexual sex is good, then it can’t be contaminating for someone to engage in it. Attraction to a person of the same sex can no longer make a person abject, inferior, and devoid of dignity.

Kennedy is guilty of a common error of amateur historians: assuming that people from the past shared your concerns. The gay pride parade on Halsted Street in Chicago Sunday was also about dignity, but gay dignity is not the reason why Chicago built Halsted Street. Marriage bespeaks dignity today, in this specific context. Isn’t that enough?

So the Times was right to emphasize “equal dignity.” Friday’s decision was a decisive victory for all gay people, not just those who wanted to marry. And the victory was indeed a vindication of the dignity of gay people. Kennedy garbled the message, but the message was right.

By Andrew Koppelman

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University.

MORE FROM Andrew Koppelman

Related Topics ------------------------------------------

Anthony Kennedy Gay Marriage Marriage Equality Scotus The Supreme Court