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On Kennedy, dignity and marriage equality

Start your morning with this excellent essay by Slate’s Dahlia Lithwick about instances where the wheels fell off the gay marriage opposition bus yesterday, including most notably the failure of attorneys for that side to reach the critical swing vote, Justice Anthony Kennedy, where he lives — in the world of dignity.

As Lithwick points out, Kennedy has been all about dignity — she calls him the “dignity-whisperer” — in court decisions he’s authored touching upon the institution of marriage.

So when counsel for Michigan defending that state’s ban paints marriage into some sort of biological-bonding corner, he gets Kennedy’s goat:

[T]here is a rather extraordinary moment Tuesday morning . . . when Kennedy finds himself in an argument with John Bursch, Michigan’s special assistant attorney general, about whether marriage is a dignity-conferring enterprise, or not. Bursch, defending his state’s 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 Kennedy—who opened argument Tuesday morning with the observation that this whole case is about an institution whose definition has gone unchanged for millennia—looks 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.

The tussle between Kennedy and Bursch doesn’t end there, with the attorney circling back to the dignity point later in the argument:

Bursch circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”

Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.

Read more on the argument yesterday here, and what the case might mean for North Carolina here.

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