As for Justice Anthony Kennedy, if we know anything at all about him it is this: You dont tell him what dignity is, or who has it, or how much it counts. As most Kennedy-watchers well know, to the extent that Kennedys vote is in play on most issues, what he is contemplating is dignity. Often balanced against other dignity. Hes the dignity-whisperer.
So there is a rather extraordinary moment Tuesday morning, as the Supreme Court hears historic arguments in the marriage equality cases grouped under Obergefell v. Hodges, when Kennedy finds himself in an argument with John Bursch, Michigans special assistant attorney general, about whether marriage is a dignity-conferring enterprise, or not. Bursch, defending his states ban on same-sex marriage, is explaining that the purpose of marriage is not to confer dignity but to keep parents bonded to their biological children.
Justice Kennedywho opened argument Tuesday morning with the observation that this whole case is about an institution whose definition has gone unchanged for millennialooks rather shocked. The author of the majority decision outlawing sodomy bans in Lawrence v. Texas (Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons) and the decision striking down the Defense of Marriage Act in United States v. Windsor (It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage) did not want to hear this. Indeed, it seems like Kennedy wanted it to be perfectly clear that he is the guy who gets to say that if marriage is nothing else, it is a dignity-stamper.
Bursch explains that if marriage is expanded to include same-sex couples, the whole purpose of the institution will change. According to him, that view of marriage is keeping the couple bound to that child forever, whereas the new purpose (once gay couples are allowed to wed) will be about their emotional commitment to each other. This presumably less noble view of marriage will then proliferate, and result in illegitimacy, which the state seeks to avoid. Kennedy looks stunned. That assumes that same-sex couples could not have a more noble purpose, and thats the whole point. Same-sex couples say, of course we understand the nobility and the sacredness of marriage, says Kennedy, the presumed swing vote. We know we cant procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.
