General Discussion
In reply to the discussion: Gay people can have multipartner relationships too. [View all]Tatiana La Belle
(152 posts)the sexual feelings don't have to be inborn. Maybe I'm wrong, but give it a read and see if I'm way off.
http://www.washingtonpost.com/opinions/the-trouble-with-the-dignity-of-same-sex-marriage/2015/07/02/43bd8f70-1f4e-11e5-aeb9-a411a84c9d55_story.html
Like many people at the Supreme Court last month, I was deeply moved by the historic ruling in Obergefell v. Hodges recognizing the constitutional right of same-sex couples to marry. At such a transcendent moment, it is difficult to do anything but celebrate the triumph of what Justice Anthony Kennedy called the dignity and profound hopes and aspirations of the many loving couples who had been denied the recognition of marriage.
But Kennedys moving language was more than just aspirational thoughts on dignity. He found a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the dignity of marriage. The uncertain implications of that right should be a concern not just for conservatives but also for civil libertarians. While Obergefell clearly increases the liberty of a historically oppressed people, the reasoning behind it, if not carefully defined, could prove parasitic or invasive to other rights. Beware the law of unintended constitutional consequences.
For the record, I have long advocated the recognition of same-sex marriage. But the most direct way the justices could have arrived at their conclusion would have been to rely on the 14th Amendments equal protection clause. It, along with the civil rights legislation of the 1960s, holds that all citizens are entitled to the same treatment under the law, no matter their race, sex, religion or other attributes known as protected classes. Kennedy and his allies could have added sexual orientation to the list of protected classes, making the denial of marriage licenses an act of illegal discrimination. This approach would also have clarified the standard in a host of other areas, such as employment discrimination and refusal of public accommodations.
Instead, Kennedy fashioned the opinion around another part of the 14th Amendment, holding that denial of marriage licenses infringed on the liberty of gay men and women by restricting their right to due process. As Justice Clarence Thomas correctly pointed out, liberty under the Constitution has largely been defined as protection against physical restraints or broader government interference not as a right to a particular governmental entitlement. While Kennedy makes a powerful case for an expansive new view of due process, he extends the concept of liberty far beyond prior decisions.
In reality, he has been building to this moment for years, culminating in what might now be called a right to dignity. In his 1992 Casey decision, he upheld Roe v. Wade on the basis of personal dignity and autonomy [that] are central to the liberty protected by the Fourteenth Amendment. Kennedy wove this concept of protected dignity through a series of cases, from gay rights to prison lawsuits, including his historic 2003 Lawrence decision striking down the criminalization of homosexuality. These rulings on liberty peaked with Obergefell, which he described as an effort of the petitioners to secure equal dignity in the eyes of the law. He used the word dignity almost a dozen times in his decision and laid down a jurisprudential haymaker: The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.
These words resonate with many of us, but it is not clear what a right to dignity portends. As Justice Antonin Scalia predicted in an earlier dissent to Lawrence, it signals the end of all morals legislation. Some of us have long argued for precisely that result, but the use of a dignity right as a vehicle presents a new, unexpected element, since it may exist in tension with the right to free speech or free exercise of religion.
Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedys words on marriage, the highest ideals of love, fidelity, devotion, sacrifice, and family? The justice does not specify. It certainly appears as if Obergefell extends this protection because same-sex unions are now deemed acceptable by the majority. The courts may not be so readily inclined to find that other loving relationships are, to quote the opinion, a keystone of the Nations social order when they take less-orthodox forms. But popularity hardly seems like a proper legal guide to whether a relationship is dignified.....