[Justice Anthony] Kennedy’s moving language [in Obergefell v. Hodges] was more than just aspirational thoughts on dignity. He found a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the “dignity” of marriage. The uncertain implications of that right should be a concern not just for conservatives but also for civil libertarians. While Obergefell clearly increases the liberty of a historically oppressed people, the reasoning behind it, if not carefully defined, could prove parasitic or invasive to other rights. Beware the law of unintended constitutional consequences.
For the record, I have long advocated the recognition of same-sex marriage. But the most direct way the justices could have arrived at their conclusion would have been to rely on the 14th Amendment’s equal protection clause. It, along with the civil rights legislation of the 1960s, holds that all citizens are entitled to the same treatment under the law, no matter their race, sex, religion or other attributes known as “protected classes.” Kennedy and his allies could have added “sexual orientation” to the list of protected classes, making the denial of marriage licenses an act of illegal discrimination. This approach would also have clarified the standard in a host of other areas, such as employment discrimination and refusal of public accommodations.