Supreme Court watchers have their money on same-sex couples winning a right to marry when the court rules in Obergefell v. Hodges. But the harder question is: How will the court get there? What constitutional right, exactly, is violated when same-sex couples are denied the opportunity to marry? The answer to this question matters, especially for women and reproductive rights. The expansion of rights for one group might result in the contraction of rights for others, leaving an ignoble stain on an otherwise significant win for queer people.
If Justice Kennedy writes the opinion for the court we’re likely to see marriage rights won in the name of dignity. Although the word dignity appears nowhere in the U.S. Constitution, the concept has been found to underlie the spirit of the Bill of Rights. Justice Kennedy has leaned heavily on the intrinsic value of dignity when charting other pro-gay rulings: for Edie Windsor last year in striking down the Defense of Marriage Act and in decriminalizing sodomy in 2003. When the same-sex marriage cases were argued before the Supreme Court in April, Solicitor General Verilli took Justice Kennedy’s view, stating “the opportunity to marry is integral to human dignity.” Justice Kennedy echoed this approach when he remarked during the argument: “Marriage is dignity bestowing, and these parties say they want to have that—that same ennoblement.”
The problem with dignity-based arguments is that they don’t come free—someone else pays the price. Dignity does its work by shifting stigma from one group to another, in this case from same-sex couples to other groups who, by contrast, are not deserving of similar ennoblement. These others include “less-deserving” groups like unmarried mothers, the sexually “promiscuous,” or those whose relationships don’t fit the respectable form of marriage. In the same-sex marriage case brought in California by David Bois and Ted Olsen, two gay men testified that they put off having children until they could marry because they didn’t want to be unwed parents.
Fortunately we have alternatives less likely to harm the case for reproductive rights. First, the Supreme Court could find that the case is really about sexual orientation or sex discrimination. Just as the court ruled in 1967 in Loving v. Virginia that a ban on interracial marriage embodied white supremacy, the court could now find that a ban on same-sex marriage embodies hetero-supremacy. A strong equality argument would have utility in the reproductive rights context since, as Justice Ruth Bader Ginsburg has argued for her entire legal career, women’s equality in the home, in the wage labor market, and as citizens is dependent upon our ability to control our reproductive lives and bodies. Were the court to take an equality approach in Obergefell it would ratify the Constitution’s commitment to fundamental equality, which could be put to good use by women, people of color, and other groups that continue to suffer systematic discrimination.
Even better, the court could see the problem of same-sex marriage as a matter of liberty—the liberty to choose a sexual partner, a spouse, a lifestyle, a good life. This approach is most consonant with the spirit of the gay rights movement’s origins. Gay Liberation was all about sexual liberty. This might include marriage, but also a broader range of attachments, kinship, and loving that far exceeds the marital form. Winning a liberty-based right to marry plants seeds that support, rather than undermine, reproductive rights. The capacity to control the meaning and consequences of reproductive sexuality is a fundamental question of liberty and the freedom to make reproductive and sexual decisions for one’s self rather than being governed by others’ values or judgment.
It’s hard to come out as an opponent of dignity, but in this case I must. In this political and legal climate the cost of dignifying same-sex relationships risks shaming women exercising reproductive rights. I’m not willing to win marriage rights for same-sex couples in a way that might contract the noble promises of our Constitution. We should have more expansive expectations of what it means to win. Justice Kennedy (right) is fond of the dignity argument.