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The Supreme Court’s Newly Invented Right to Equal Dignity and the Problems It Will Cause (Forbes.com) July 8, 2015

Posted by daviddavenport in Op/Eds.
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In case you missed it, Justice Kennedy and the majority of the Supreme Court invented a new constitutional right when they overruled bans on same sex marriage.  In the closing line of the opinion, the Court said that those seeking the right to gay marriage “ask for equal dignity in the eyes of law.  The Constitution grants them that right.”

Read the Constitution front to back and tell me where you find the section about the “right to equal dignity.”  Sorry, but like a lot of things people mistakenly assume must be in the Bible or in the Constitution, it’s not there.

What is in the Constitution is the 14th Amendment, on which the Court said this decision was based.  It promises that no “state [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  Even there, Kennedy’s decision is awkward and unclear, claiming to base its decision on a deprivation of liberty, namely the fundamental right to marry the person you want.  Equal protection seems the less strained basis.

But then Kennedy, writing for the majority, waxes eloquent about equal dignity, as he has done in the past.  It’s in many of his Supreme Court opinions, from the Casey abortion case to the Lawrence sodomy decision to his opinion in the Windsor Federal Defense of Marriage Act case.   So some kind of dignity right is in Kennedy’s mind and jurisprudence; the problem is that it is not in the Constitution.  And it is so broad and vague it shouldn’t be.

One unanswered question is what equal dignity, or even dignity itself, might mean under the law.  None of the cases attempts to answer that question.  Webster’s Dictionary says dignity is the “quality or state of being worthy, honored or esteemed.”  The Oxford Dictionary adds the term “respect.”  Does this mean, then, that when people in our litigious society feel disrespected, their constitutional rights are violated?  Or, with some limitation, if government is somehow involved in that disrespect, there is a legal cause of action?  In some countries and cultures, even jokes have prompted arrests and prosecution on similar grounds.  Will the First Amendment protection of free speech still win out over this new “constitutional right?”

Less speculative is the looming clash between First Amendment free exercise of religion protections and this new right to equal dignity under the law.  Although many religions, including conservative Christianity, do not accept gay marriage, the Supreme Court’s opinion gave scant attention to their concerns.  Justice Kennedy said they may “continue to advocate” their view and “teach the principles…they have long revered.”  But wait, isn’t the First Amendment stronger than that?  Doesn’t it protect free exercise of religion, not just advocacy and teaching?  If a Christian or Muslim school or agency does not deal with same sex couples and their families in the same way as heterosexual couples, does that not violate Kennedy’s principle of “equal dignity?”  But at the same time, is that not protected by the free exercise of religion clause in the First Amendment.?  Or how about the bakers or florists or artists who feel they must exercise their religious beliefs and decline to participate in gay marriages?

Equal dignity looks like Pandora’s Box to me.  It is not in the Constitution and is ill-defined, vague and uncertain.  No one really knows what it means in a legal context.  It is overly broad—there is indignity everywhere in a crowded and busy world.  And it has now been attached to a new practice, same-sex marriage, that clashes and jars against other rights, most notably free speech and the free exercise of religion, also guaranteed by our Constitution.

Equal dignity under the law—coming soon to a courthouse near you.

See article at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/07/08/the-supreme-courts-newly-invented-right-to-equal-dignity-and-the-problems-it-will-cause/

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