Thursday, September 3, 2015
Yesterday's post by Jeremiah Ho analyzed the majority and dissenting Obergefell opinions. Today's post discusses why the majority opinion is part of the progression of Human Rights Law in U.S:
LGBTQ advocates need not contort Kennedy’s emotive reasoning in order to align the majority opinion with the “logic-based” styles of the dissenters. Legal bases for Kennedy’s arguments exist in human rights law and language, dignity being a fundamental human rights principle.
The opening to the Preamble to the Universal Declaration of Human Rights underscores that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Those who disavow using sources other than American statutes and case law in deciding U.S. based issues fail to recognize that the Universal Declaration inherently embraces U.S. principles contained in the Declaration of Independence and supported in the Bill of Rights. The “pursuit of happiness” is intimately tied to the ability to be educated, employed, suitably housed, and fed, while being safe. Equal access to societal institutions and their implied or express benefits are inherent in the American notions of equality and expressed in human rights doctrine. The right to participate in social benefits, with equal participation in resulting burdens that participation brings, is what creates individual and cultural dignity. The American principle of equality cannot be realized without recognizing the fundamental rights embodied in the Universal Declaration. Human rights cannot be separated from human existence. These principles are not aspirational but are, in the quintessential American lexicon, “unalienable.”
In Obergefell,Kennedy embraced human rights concepts through references to and reliance upon notions of “dignity.” That which irrationally deprives individuals’ access to civil society’s institutions based upon the individuals’ “immutable nature” denies dignity: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Unspoken, but implicit, in Obergefell’smajority opinion is that one consequence of exclusion from cultural institutions is shame, historically a tool of oppression when those who are victimized by denied access internalize legal and cultural deprivation. Denying individuals’ access to fundamental institutional benefits based upon immutable characteristics creates cultural beliefs that those excluded are unworthy. The deprived individuals carry a belief that somehow they are responsible for the exclusions. Along with other often excluded groups in the U.S., such as women and African Americans, this shame has been documented in the LGBTQ community.
Cultural judgment based upon immutable characteristics is the starter for animus. In Obergefell, Kennedy recognizes animus as the essence of deprivation. The Universal Declaration demands that individuals be free from this sort of harassment: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor or reputation.” The animus-dignity dichotomy originates in human rights concepts embedded in U.S. legislation, such as the Fourteenth Amendment, as well as more universal applications. The resolution of animus restores dignity, leading to acknowledgement of complete personhood so that “[e]veryone has the rights to recognition everywhere as a person before the law.”
Kennedy does not limit his benefits analysis to legal concepts: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” Kennedy cites Loving in recognizing that the choice to marry is something that resides within the individual and cannot be deprived by the state. In embracing the intangible, Kennedy incorporates fundamental human rights concepts as support for his legal conclusions. Likewise, incorporating reference to the limitations and obligations of the state embraces fundamental human rights law.
Justice Kennedy’s decision is based in law, although his critics ignore the importance of dignity as foundational in U.S. jurisprudence. Obergefell will weather time, as human rights language and concepts become more widely recognized in American law.