Now that the initial excitement about the U.S. Supreme Court’s ruling in Obergefell v. Hodges is starting to fade, and the glitter is starting to settle, I find myself increasingly disappointed in Kennedy’s articulation of the right to same-sex marriage. Not because I don’t appreciate the way he discussed marriage as a fundamental right crucial to the dignity of gay and lesbian individuals, but because he doesn’t locate a woman’s right to reproductive autonomy in that same sphere of dignity.
The lofty language Kennedy used to describe the dignity of LGBTQ people in Obergefell warmed the cockles of many a heart. Kennedy’s final paragraph in the Obergefell ruling is one for the history books:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
My heart, however, might best be described as black and shriveled, because as I read the case, my disappointment with the route Kennedy took to get to that result grew ever stronger.
Rather than engage in an equal protection analysis—an analysis that would have given LGBTQ activists some idea of what is to come as they seek full equal rights in non-marriage contexts (employment, adoption, etc.)—Kennedy danced around the issue. Implicit in Kennedy’s decision is the notion that sexual orientation should be granted some sort of heightened scrutiny. After all, as Ian Millhiser pointed out at ThinkProgress, Kennedy’s use of the word “immutable” in describing sexual orientation is not an accident since immutable characteristics tend to trigger heightened scrutiny. Nevertheless, Kennedy did not outright state what level of scrutiny courts should apply to sexual orientation cases. Should they, for example, apply strict scrutiny as with racial classifications? Intermediate scrutiny as with gender? Or the easily surpassable rational basis review?
Instead, Kennedy waxed sentimental about the importance of marriage as a fundamental right, one which states could not deny gay and lesbian individuals as a matter of human dignity (a nebulous concept of “dignity” that doesn’t actually help with the wide range of civil rights that are still denied to the LGBTQ community).
The way Kennedy talked about marriage in Obergefell—“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”—makes my stomach churn a bit. Setting aside the fact that marriage has not promised such dignity to all persons—Black slaves, anyone?—it is distressing to read such a hagiographic description of marriage, one that is completely divested from reality.
Marriage—that transcendent institution, as Kennedy described it, which “transformed strangers into relatives, binding families and societies together,” and which “lies at the foundation of government” has always been premised upon the oppression and subjugation of women. How did marriage bind families together? By offering up one father’s daughter as property to be given away—quite literally, as demonstrated by a father walking a bride down the aisle and, more or less, pushing her into the arms of her soon-to-be husband, often in exchange for money, livestock, or title—to another family.
And even when Kennedy acknowledged that the definition of marriage and its relationship to women has changed over time, he did so without explicitly acknowledging how truly oppressive marriage has been for women. “[M]arriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns,” Kennedy wrote.
That’s a rather benign way of saying that male heads of households sifted through the female offerings of one another’s families, assigning daughters to sons based upon how many goats or trunks full of trinkets could be acquired as a result of the arrangement.
To be fair, Kennedy’s sentimental articulation of human dignity for the LGBTQ community was beautiful. There’s no questioning that (even though, as my colleague Jessica Mason Pieklo recently pointed out, it does nothing for gay and lesbian people’s general fight for equality). But it is also clear that he does not afford that same measure of human dignity to women.
When it comes to women reserving dignity for themselves—the dignity to make the most personal choice—whether or not to have children—Kennedy has devolved into patriarchal notions about women’s frailty and inconstancy, with language steeped in stereotypes and gender-normative claptrap.
However useful Kennedy finds it for expanding constitutional protections for certain rights, dignity is a gendered double-edged sword. It’s great for men and it has turned out to be great for same-sex couples who want to get married. But dignity as a concept is worthless when it comes to reproductive rights.
In her article, “Aborting Dignity: The Abortion Doctrine After Gonzales v. Carhart,” Victoria Baranetsky examined the limitations of dignity as a useful constitutional principle, and describes its dual meaning. She wrote, “Dignity has two radically different meanings: feminine social obligation and masculine autonomy.” (Emphases in original.)
As a social obligation, dignity limited women to particular social spheres within the family. “A woman was considered to be dignified when she remained discretely in her sphere, as wife and mother,” Baranetsky wrote. She noted that men—white property-holding men, that is—were considered “dignified” if they were “rational, independent, and assertive” as the term “dignified” was defined in Rights of Man by Thomas Paine or in The Declaration of the Rights of Man and of the Citizen, the French Revolution’s foundational document.
In addition, the Universal Declaration of Human Rights, which was formulated after World War II to address the human abuses that had occurred, stated that “[a]ll human beings are born free and equal in dignity and rights.” But given the prevalence of masculine pronouns throughout the declaration, it became clear that men are born free and equal in dignity and rights. Women? Not so much. These sorts of dignities were reserved for men—certainly women who were “rational, independent, and assertive” were not viewed as “dignified.” They were more often than not viewed as hysterical. Women were not permitted to make the same choices that men were and if they desired to, society viewed them as deficient in some manner, oftentimes mentally so. Accordingly, for men, dignity meant individual autonomy; autonomy was not for women.
The dignity reserved for women was located solely in the familial and social contexts. It is this version of dignity to which Kennedy has subscribed, and it is this version of dignity that will prove to be the death knell of abortion rights since when it comes to reproductive rights, Kennedy’s position as the swing vote makes him “the Decider.”
But Kennedy’s view of dignity has been sorely lacking.
Any reasonable articulation of dignity, especially in the 21st century, would require an acknowledgement that the right to make decisions about one’s reproductive autonomy is central to human dignity.
Any reasonable articulation of dignity would trust women to make a decision that is right for them after being presented with scientifically sound information about the risks and benefits of abortion. And I say “benefits,” because for many women, abortion is a benefit. Abortion permits women to plan their families, and to ensure that they have the ability to care for newborns in addition to any children they already may have. And let’s not forget that 60 percent of women who seek abortion are already mothers.
But this reasonable articulation of dignity collapses under the weight of the anti-choice formulation of dignity—one which continues to be urged by the Catholic Church and one which found a home in Kennedy’s opinion in Gonzales v. Carhart. According to this perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.
This formulation of dignity has been used by anti-choice legislators and tacticians in changing the abortion debate from “women are baby-killers” to “women are being victimized by baby-killing doctors.” And that last formulation is one which Kennedy embraced in Carhart.
In Carhart, Kennedy juxtaposed the dignity of a fetus against the dignity of a woman, and ultimately granted more dignity to a fetus than to a woman whose dignity he viewed as being abrogated and traumatized by her choice to terminate a pregnancy. This was so even though Kennedy noted the absence of any reliable data to measure the phenomenon of this post-abortive trauma.
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The [Partial-Birth Abortion Ban] recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Kennedy wrote. (Emphasis added.)
Paradoxically, rather than informing a woman’s right to choose, “dignity” has become a descriptor for the fetus’ right to live. In Carhart, Kennedy wrote that the so-called Partial-Birth Abortion Ban “expresses respect for the dignity of human life.” That respect for a fetus’ dignity, however, comes at the expense of a woman’s dignity with respect to the right to choose whether to carry that fetus to term. Kennedy’s articulation of dignity as it applies to women is steeped in harmful traditional stereotypes of women as either mothers or women traumatized by their decision to eschew motherhood through abortion.
It seems that in Kennedy’s view, a woman’s dignity extends to the edges of the social sphere but no further. And even within the confines of the social sphere, her dignity does not extend so far as to permit her to decide whether or not to give birth. No dignified woman would ever choose abortion. It’s just not what women are supposed to do. And any woman who does would be devastated by her choice. According to Kennedy, this is an “unexceptionable” conclusion, even though it is not backed by any “reliable data.”
Kennedy’s fascination with dignity began long before the same-sex marriage cases. As Jessica Mason Pieklo pointed out after the Court heard oral arguments in Obergefell, Kennedy articulated the “dignity doctrine” during his confirmation hearing. In response to a question about which concepts are protected under the Constitution’s liberty guarantee, Kennedy said, “A very abbreviated list of the considerations are: the essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her own potential.” (Emphasis added.)
Kennedy clearly believes that the right to marriage implicates a person’s right to human dignity. And I agree. It is frustrating, therefore, that he has refused to see that the right to reproductive autonomy more than anything else also implicates a person’s right to human dignity. How can a person “manifest his or her own personality” or “obtain his or her own self-fulfillment,” or “reach his or her own potential” if that person is constrained by the governmental desire to force that person to carry a pregnancy to term?
A person cannot. But Kennedy doesn’t see it. And that’s why his growing line of dignity jurisprudence, despite the fact that its application lead to the right result in the same-sex marriage cases, leaves me cold.