SCOTUS opinion recognizing dignity of gay marriage could lead to dignity codes, law prof says
Justice Anthony M. Kennedy’s majority opinion finding a constitutional right to gay marriage could have unintended consequences because it is based on an expansive view of the due process clause, a law professor says.
In an op-ed for the Washington Post, George Washington University law professor Jonathan Turley says the opinion recognizing the dignity of gay marriage could pave the way for dignity codes that trump free-speech rights.
Turley says “the most direct way” the majority could have upheld a right to gay marriage in Obergefell v. Hodges would be to find that sexual orientation is a protected class under the 14th Amendment’s equal protection clause. That would have made a refusal to issue gay-marriage licenses illegal discrimination, and would have clarified the standard in areas such as employment discrimination and refusal of public accommodations, Turley says.
Though Kennedy made a general statement about equal protection, Turley says at his blog, the justice’s opinion emphasized a due-process right to the “dignity” of marriage that is infringed by denial of a marriage license. Dignity, Turley says in the Washington Post, is a “rather elusive and malleable concept.” (Turley supports a right to gay marriage and also defended a right to polygamous relationships in his representation of a Sister Wives star.)
According to Turley, a right to dignity could lead to the end of all morals legislation, as Justice Antonin Scalia wrote in his dissent to Lawrence v. Texas, the decision striking down a criminal ban on sodomy.
The new right will have to be balanced against the right to freedom of religion and speech, Turley says. He provides these examples:
•It’s undignified for a gay couple to be denied a wedding cake, but a Christian or Muslim baker may also feel it undignified to have to prepare such a cake.
•Workers could challenge office dress codes as intruding on their right to express their dignity. Or college applicants could claim that race and gender classifications deny their right to define and express their identity.
•In Europe and Canada, dignity is protected through laws that punish degrading, hateful or insulting speech. Hate speech laws could be enacted here based on the justification that they protect dignity.
“Obergefell would be a tragic irony,” Turley writes, “if it succeeded in finally closing the door on morality and speech codes only to introduce an equally ill-defined dignity code. Both involve majoritarian values, enforced by the government, regarding what is acceptable and protectable. Substituting compulsory morality with compulsory liberalism simply shifts the burden of coercive state power from one group to another.”
The Volokh Conspiracy and the National Review have also published articles about the reasoning in Kennedy’s opinion.
