Bloomberg View columnist Cass Sunstein. Photographer: Stephen Voss/Bloomberg
Bloomberg View columnist Cass Sunstein. Photographer: Stephen Voss/Bloomberg

The word “dignity” can’t be found in the Constitution, but in his majority opinion in U.S. v. Windsor, Supreme Court Justice Anthony Kennedy uses it no fewer than nine times (actually 10, if we include “indignity”). The foundation of the court’s opinion, and its real importance, lie in its insistence on human dignity as a constitutional value, one that stands at the heart of our longstanding commitment to equal protection of the laws.

In Windsor, the court struck down a central provision of the Defense of Marriage Act, enacted in 1996, which states that, under federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” When filing tax returns or seeking federal benefits, same-sex couples can’t count as “married” under federal law, even if their state allows them to wed.

The court’s chief objection to the law is that it is an affront to dignity. In describing the recent rise of same-sex marriage, the court emphasizes that some states have conferred on same-sex couples “a dignity and status of immense import.” In identifying the central problem with the Defense of Marriage Act, the court proclaims that it “demeans the couple” and “humiliates tens of thousands of children” now being raised by same-sex parents.

In explaining its constitutional judgment, it finds that “the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” In its critical closing paragraph, the court states that the “federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

States’ Rights

It is true that the Windsor opinion emphasizes not only dignity, but an unruly mixture of constitutional concerns. The court devotes considerable space to the traditional role of the states in establishing the legal nature and incidents of marriage. In the majority’s words, the “significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning,” and the “State’s power in defining the marital relation is of central relevance in this case.”

Kennedy was clearly troubled that by inserting federal authority into domestic-relations law, the Defense of Marriage Act “departs from this history and tradition of reliance on state law to define marriage.”

But the court didn’t invalidate the law on federalism grounds. Instead it invoked the due process clause of the Fifth Amendment, which prevents the federal government from depriving people of life, liberty or property “without due process of law,” and which has long been understood to contain an equal protection component.

Because the Defense of Marriage Act discriminates against same-sex couples for no legitimate reason, because its “purpose and practical effect” are to impose “a stigma upon all who enter into same-sex marriages,” and because it reflects (in the court’s view) “an improper animus or purpose,” it violates the Fifth Amendment.

Windsor isn’t exactly a minimalist decision, but it does leave a great deal undecided, especially when taken together with Hollingsworth v. Perry, in which the court declined to rule on the constitutional challenge to California’s Proposition 8, which similarly restricts marriage to opposite-sex couples. (Notably, Hollingsworth allows the federal district court’s decision striking down Proposition 8 to stand, and thus allows same-sex couples to marry in California.)

‘Strict Scrutiny’

The court conspicuously declined to resolve a question to which the briefs devoted a lot of attention: Must courts give “strict scrutiny” to laws that discriminate on the basis of sexual orientation? The Department of Justice so argued. If the court had agreed, it would have imposed a severe obstacle, not limited to the area of marriage, to any form of discrimination against gay men and lesbians.

In his dissenting opinion, Chief Justice John Roberts urged a narrow reading of the court’s opinion, clearly attempting a kind of damage control. In his view, federalism was crucial to the outcome, and hence the court’s opinion did not bear on whether states must recognize same-sex marriages.

By contrast, Justice Antonin Scalia contended that the handwriting is on the wall: “The view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion.” It is too soon to know whether Scalia’s prediction is correct, but as a technical matter, Roberts is right to say that the issue remains undecided.

There are also hard questions about the meaning and scope of the notion of dignity. That notion should be taken not as freestanding or as a recent invention, but as a modest and historically grounded effort to help specify what a denial of equal protection looks like. If the government is demeaning, humiliating and stigmatizing people, there is a constitutional problem. That problem is hardly disconnected from the concerns that long ago gave rise to the national repudiation of slavery and Jim Crow -- and to the enduring constitutional principles that reflect that repudiation.

As a matter of simple fact, American constitutional law has never been static; a disciplined dynamism is built into our constitutional fabric. That dynamism is most inspiring, most constrained and least dangerous when the court refuses to build out of whole cloth, but instead maintains continuity with the basic purposes of the constitutional design. In resting its ruling on the foundation of human dignity, the Windsor opinion does exactly that.

(Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and author of “Simpler: The Future of Government.”)

To contact the writer of this article: Cass R. Sunstein at csunstei@law.harvard.edu.

To contact the editor responsible for this article: Katy Roberts at kroberts29@bloomberg.net.