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July 03, 2015


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The FFC clause was thoroughly explored prior to the case.

The issue is that there are well recognized exceptions, and plenty of precedent for the marriage rules of a state sustaining inconsistencies.

What many have found more distressing is the "dignity" interest that Kennedy seems to find in the constitution. This seemingly ill defined interest (you must call it "marriage" and not "registered domestic partnership" -even if EVERY RIGHT AND BENEFIT is afforded to both, lest "domestic partners" or their children not feel dignified having a different label attached to their union).

This "dignity interest" could support compelled state recognition of many forms of conduct. It will be for Justice Kennedy to decide what forms of conduct (e.g., polygamy) he finds entitled to "dignity." Perhaps the views of people who amended thirty one state constitutions will be relevant; perhaps not.

The best solution might be to leave marriage to the religious institutions, and leave to the state to prescribe the forms of domestic partnerships it will recognize, notwithstanding Justice Kennedy's "dignity" analysis. Whether these state prescriptions would be held subject to the due process and equal protection shields put up by Justice Kennedy would be a different case, perhaps.

At least that case would put Justice Kennedy (and others) to the test of actually articulating the contours of "dignity." (i.e., who would be entitled to claim to be "married" if the state doesn't recognize any marriages, who would be entitled to claim "domestic partner" status if the state only recognizes certain partnerships (e.g., two people) and not others?)

Post: I always thought that our law recognized the "dignity" of every living person, hence, we do not cruelly or unusually punish anyone, we must treat everyone with due process and equal protection (as interpreted), etc. We are entitled to the rights and privileges of Englishmen under our common law, the rights of persons in our republic, etc., and those rights include the right to "dignity" ... period. Shouldn't same sex couples be entitled to some more meaningful standard to uphold their unions than merely the "dignity" analysis that should be afforded to every human and is afforded to every human under our system of law?


JUst to garnish the point a bit, here some accepted definitions of "dignity" :

1. the state or quality of being worthy of honor or respect.
"a man of dignity and unbending principle"

2. a composed or serious manner or style.
"he bowed with great dignity"

3. a sense of pride in oneself; self-respect.
"it was beneath his dignity to shout"

Which sense best fits the notion that the due process clauses of the constitution proscribe unreasonable infringement?

Is what Justice Kennedy personally respects a constitutional right, unable to be denied to persons despite amendment to the constitutions of thirty one states, and what he doesn't personally respect otherwise?

Or, is it the third sense that Justice Kennedy felt in his heart would be saved by finding a constitutional dignity interest that precludes domestic partnerships that bear all of the rights and privileges of "marriage"?


Ultimately, the original post and is lawyers playing with words. Do you believe same-sex marriage should be protected by the Constitution? That's the issue. Whether one couches it in terms of dignity or some more "sophisticated" constitutional language, that's just beating around the bush. There's no point in pretending the constitution provides a definitive answer either way to this question. Might as well be honest about the issue and simply ask the policy question: should the law protect same sex marriage. Debating Kennedy's dignity analysis is a side show.



Maybe so. But in future cases, involving different issues (or, perhaps in the polygamy cases to come) the Court will need to articulate some meaning to its precedent.

Just saying "it's the right thing to do" is the sideshow when it comes to overturning the law of millennia when even the paragons of propriety on this issue held a different view of it just three years ago.


The meaning is simple. There is no harm to others because of same sax marriage. There is only people who find it offensive to their beliefs. Relying on the millennia argument is not persuasive. Just because something has happened for a long time is an insufficient rationale to prohibit an act that causes no harm to others. My guess is there are articulable harm to others in the polygamy context, but I have yet to hear a harm to others caused by same sex marriage. My other guess is you find same sex marriage offensive, but prefer not to express your underlying belief and rather dance around that core issue with faux nuanced "constitutional" arguments.



FOr the record, I don't find same sex marriage offensive. I find arguments like yours (attacking anyone who dares to consider the precedent here) to be, though.

The constitution does not forbid laws that fail to afford equal legal status to all conduct that "does no harm to others." That bizarre rationale has no place here.

And, if not discernible already, putting the word "constitutional" in quotes discloses your understanding of the legal arguments.

So, time to disengage. YOu are just arguing the political talking points (including the "you must be a bad person" argument), not law.


If the constitution provides no answer, we are talking politics. We like to pretend that the legal fiction of constitutional law has some meaning independent of what people claim it to be. But, we are just making it up. While the constitution does provide some clear(er) answers in some contexts, it provides no answer for the same sex marriage question. Rather, nine human beings decided what they believe the constitution should or should not protect. Finally, I would argue that the Constitution does embody some notion of the do no harm principle. Consider the Ninth Amendment.

(I was not attacking you. I am skeptical of scholars claiming that the reasoning of this decision somehow undermines con law or law generally. If you don't find same sex marriage offensive, what troubles you about the decision? That it is a slippery slope to polygamy? To other non-marriage issues? That the unavoidable political nature of the same sex marriage decision shows that sometimes con law emperors have no clothes when we can't neatly cabin legal reasoning apart from the inextricably intertwined humanistic element of law? ??)



Once again, this post, and my comments in response, considered the actual standards used.

If you believe that in the con law books it will say "do no harm" or "pure politics" was the standard used to decide the case, so be it.

With all due respect, however, you might want to skim Kennedy's opinion. I know you think it was all bs, but you might find something of interest.

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