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Obergefell v. Hodges, Identity, and Dignity

[I'm going to sticky this because I really want feedback. Again, I think it's amazing, but I seem to be the only person who thinks so. Readers? --lambert]

I posted this over at Naked Capitalism and [lambert blushes modestly] I think it's a tour de force. But readers over there didn't really want to talk about the central theme, which I hope you are able to discern. I'd like to know what you all think.

* * *

Not only can I not even pretend to be a lawyer, venturing into a theoretical discussion of identity politics would, for me, rather like trying to operate high-speed machine tools when I don't have any training. So I'm not going to do either of those things. Rather, I want to take a layperson's look at Justice Kennedy's opinion in Obergefell, which seems to find a right to dignity in the penumbras of the Constitution (rather like the much-abused right to privacy), and tease out some implications of that line of thought. Kennedy's opinion is thirty-three pages long, and I did fight my way through it, but I found three paragraphs of Kennedy's "soaring language" (two at the beginning, one at the end) especially striking.

From the introduction to Kennedy's Obergefell opinion, the first paragraph (page 6, here in PDF):

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

The second paragraph (page 8):

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most

basic human needs, marriage is essential to our most profound hopes and aspirations.

And from the peroration, the third (page 33). Note the climactic final sentence:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Before moving on to Obergefell's implications, a few observations on these paragraphs.

The first paragraph: Note especially the use of the word "identity." It's nowhere defined; there's no footnote. Is identity to be defined as, say, Crenshaw does? Note also "within a lawful realm," as opposed to "under the rule of law." A lawful realm, of course, might allow persons to practice civil disobedience to claim their right to dignity (as did the Civil Rights movement, in retrospect or, more to the point, ACT-UP). Finally, although tangentially with respect to the emerging theme of this post, corporations are persons, my friend. Do they, too, have identity and dignity?

The second: Centrally, note the introduction of "dignity to all persons." Tangentially: To an unmarried person, this paragraph may overegg the pudding, although one sees how it provides Kennedy with political cover. Surely the transcendant does not only depend on factors other than "identity," or on marriage? Surely, to pick random instances, the unmarried Descartes, Leonardo da Vinci, Beethoven, Jonathan Swift, Jane Austen, and Anne and Emily Brontë produced transcendent work? And surely they expressed "our most profound hopes and aspirations" in a way that Macbeth and Lady Macbeth (or Joseph and Magda Goebbels) did not?

And the third: Here we have the full claim at last: "They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Summing up: "Equal dignity in the eyes of the law" is a right that allows persons, "within a lawful realm, to define and express their identity."

So what happens when we think through the implications of this right? Especially when people define their own identity?

* * *

Let's discard Kennedy's soaring language, and ask ourselves what function marriage has in society today. Clearly, for the 1% upward, marriage is a dynastic affair, a vehicle for passing wealth along a bloodline. (As it turns out, that's what conservative "family values" has meant in practice. This should not be surprising.) For the rest of us, and for political economy as we know it today, marriage is society's way of making more workers[1]). So what would happen, under Kennedy's new doctrine, if people began to "identify" as "working class" -- to simplify, wage-workers -- and to claim their right to "equal dignity in the eyes of the law" on that basis? How would plaintiffs[2] make that claim, and what would be the implications?

Were our political economy still based on slavery -- human sale -- such a claim would be easy to make[3]. Historian David Brion Davis describes the features of that economy:

There were strong economic reasons for the broad national reach of American slavery. Though Northerners gradually eliminated slavery in their states, Southern slave-grown cotton was the nation's leading export. It powered textile-manufacturing revolutions in both New England and Europe, and paid for American imports of everything from steel to capital. In addition, the demand for slave labor in southwestern states like Mississippi, Louisiana and Texas drove up slave prices and land values throughout the South. In the 19th century, slave values more than tripled. By 1860, a young "prime field hand" in New Orleans would sell for the equivalent of an expensive car, say a Mercedes-Benz, today. American slaves represented more capital than any other asset in the nation, with the exception of land. In 1860, the value of Southern slaves was about three times the amount invested in manufacturing or railroads nationwide.

Ka-ching.

Is it possible for a human being to retain their dignity, having been sold? A dubious claim at best. In The Narrative of the Life of Frederick Douglass, Douglass contrasts slave and "free" labor precisely along the axis of dignity:

I had very strangely supposed, while in slavery, that few of the comforts, and scarcely any of the luxuries, of life were enjoyed at the north, compared with what were enjoyed by the slaveholders of the south. I probably came to this conclusion from the fact that northern people owned no slaves. ... I had somehow imbibed the opinion that, in the absence of slaves, there could be no wealth, and very little refinement. And upon coming to the north, I expected to meet with a rough, hard-handed, and uncultivated population, living in the most Spartan-like simplicity, knowing nothing of the ease, luxury, pomp, and grandeur of southern slaveholders. ...

In the afternoon of the day when I reached New Bedford, I visited the wharves, to take a view of the shipping. Here I found myself surrounded with the strongest proofs of wealth. Lying at the wharves, and riding in the stream, I saw many ships of the finest model, in the best order, and of the largest size. Upon the right and left, I was walled in by granite warehouses of the widest dimensions, stowed to their utmost capacity with the necessaries and comforts of life. Added to this, almost every body seemed to be at work, but noiselessly so, compared with what I had been accustomed to in Baltimore. There were no loud songs heard from those engaged in loading and unloading ships. I heard no deep oaths or horrid curses on the laborer. I saw no whipping of men; but all seemed to go smoothly on. Every man appeared to understand his work, and went at it with a sober, yet cheerful earnestness, which betokened the deep interest which he felt in what he was doing, as well as a sense of his own dignity as a man. To me this looked exceedingly strange. ...

Every thing looked clean, new, and beautiful.

Oh brave new world.. Of course, Douglass could well be over-egging the pudding for his Northern audience; and we know that wealth, in both North and South, was intimately tied to slavery, but nevertheless his description -- even his discovery -- of the "dignity of labor" is quite striking.

From Douglass, we might think that there's no issue with dignity in wage work -- human rental, as opposed to human sale -- and surely (pace Clarence Thomas) given slavery as a baseline that's a sensible conclusion. Some contemporaries agree. In a commentary on Obergefell by Ilya Somin in the Voloch Conspiracy's column in the Washington Post arguing against Clarence Thomas's dissent, which is based on the notion of negative liberty:

The second flaw in Thomas’ position is that marriage recognition by state governments is not purely a matter of conferring positive benefits provided by the state. Marriage is also a contractual relationship between private parties, under which they take on various reciprocal obligations to each other.

[And] the right to freedom of contract was, from early on, understood as an important element of the liberty protected by the Due Process Clause of the Fourteenth Amendment, and its analogues in state constitutions. The framers of the Fourteenth Amendment repeatedly referred to the right to make and enforce contracts as one of the basic rights of citizenship that they sought to protect by enacting the amendment. The right to contract was far from unlimited. One can argue about whether it should be construed broadly enough to include same-sex marriage. But it most certainly was part of the liberty protected by the Due Process Clause.

.... Whatever [Scalia's] “the nearest hippie” might say, freedom surely includes the right to voluntarily enter into a contract that restricts your future options. The right to enter in an employment contract is a form of liberty, even if it might restrict your choices about how to spend your time at work. Similarly, the right to enter into marriage is a form of liberty as well. In exchange for giving up your right to pursue certain kinds of “intimacy” with other people, you (hopefully) gain a relationship of tremendous value. Although some hippies might disagree, the right to make a binding commitment is a hugely important element of liberty.

But are the cases of marriage contracts and employment contracts comparable? I would argue no. To understand this, let's take a look at how the "dignity of labor" is operationalized, as described not by Scalia's "nearest hippie," but by Arthur J. Miller, a Wobbly:

In the shipyard we workers look after each other. We help one another when needed and cover each other's backs. We share our knowledge. No one knows everything about pipefitting and ships, but we teach each other, and together we have our bases covered. We tend to have our areas that we are better at and if someone has done something more that another, we will ask for their advice. Kenny [the protagonist in the story] had his nose up the foreman's ass so far that he had no respect for his co-workers and viewed them as the competition. He was a fool who could not see his true self-interests. To him the union was a means to get where he wanted to be, not a bonding of co-workers.

Working people need to stop identifying with the bosses and realize that their fellow workers are the only ones that they have a common interest with. There is dignity in our work and there is dignity is standing up for our common interests.

(Note that in Kennedy's formulation, it wouldn't matter whether, according to some an neoliberal economist's expert testimony, that Miller is "wrong," because it is up to Miller to "define" his "identity," and nobody else.)

More formally, Miller and Kenny are confronted with a classic Prisoner's Dilemma in the workplace: Miller advocates cooperation, pointing out, correctly, that it's in both their interests to cooperate; Kenny, however, defects. Critically, the Prisoner's Dilemma is inherent to wage labor, because of the power imbalance between wage worker and owner; the incentive to betray is ever present; inducing such betrayal is the business model of every union-busting consulting firm, for example.

Somin, in other words, commits the fallacy of composition. By focusing only on the single contract between one owner and one wage worker, Somin ignores or erases the effects of the contracts between one owner and a class of wage workers; class by definition, since the Prisoner's Dilemma kicks in when in the case when there is, at a minimum, a set of two workers, one to be induced to betray the other. By contrast, marriage -- certainly in Kennedy's soaring language -- is not a prisoner's dilemma; cooperation is inherent to it.[5]

In conclusion, the wage labor system -- human rental -- inherently and systemically induces some humans to betray other humans. Can this incentive structure be seen as an affront to the Constitutionally protected right to dignity by those whose "identity" (hat tip, Justice Anthony Kennedy) is "defined by" (ditto) their membership within the working class? I'd argue yes; "an injury to one is an injury to all." There is no dignity in betrayal, or in participating in a system that encourages it.

QED?

Notes

[1] I'm deliberately avoiding dimly remembered terminology from the late 70s. See, e.g., Beneria, "Reproduction, production and the sexual division of labour."

[2] I'm filing away a mental note that unpaid labor in the form of housework could be seen to lack dignity, as well; see note [1].

[3] To my knowledge -- readers will correct me -- no such claim was made when slavery was still Constitutionally permitted; I'm reverse engineering the claim out of Kennedy's reasoning.

[4] While continuing to finance it, and purchase the fruits of slave labor.

[5] It would be interesting to think through whether the conservative's latest bete noire, polygamy, is amenable to the logical treatment I have given wage labor.

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okanogen's picture
Submitted by okanogen on

I wish I wasn't on a phone. I hadn't read the language, if I had, I would have also been struck by the passion in it. This is not a legalese, hairsplitting decision on his part. Likely this was in defense to the passions on the other side, but hard to know.

This could have been coached in the rights to an equivalent contract, but the language is much, much broader, as you pick up on. Will comment later.....

claud_alexander's picture
Submitted by claud_alexander on

I dunno, dude. . . don't think I have anything useful to comment. I come from the barbarian fringes of the empire, so I'm basically content in taking my epistemology from Popper and my political theory (within very narrow limits) from Schmitt's "sovereign is he who decides on the exception."

Thus I experience a kind of dyslexia or ADD whenever asked to work through implications of purely verbal definitions. Does the statement "x" imply "y". . . I don't know, yes, no, maybe. . .what happens if we conclude that it does? what happens if we conclude that it doesn't... sorry, what's the problem that answering the question will allow us to solve?

(You can imagine how hilarity ensued when I decided to take the Rawls Political Theory course--God how those people they were always bringing up some justly-obscure German sect in PA to make "telling points" about whether reasonable people in the fair society would agree that they had a right not to use kerosene or something.)

So, to be constructive, let me add that the dirty secret economists and polisci'ers won't tell you about the Prisoner's Dilemma is that in experiment after experiment it turns out that people don't behave "rationally" and defect all the time (unless they've taken econ or polisci courses: there's an nc post about this somewhere). Game theory's useful for all kinds of things (I think in its terms almost reflexively in many situations), but it's never been true as a theory of social behavior.

Actually, I remember one of my mentors exploding, apropos some paean to game theory: "Oh for fuck's sake! You know who came up with game theory? John Nash. Now, John Nash was a paranoid schizophrenic--people like that always come up with devices like that to make sense of the world, but it's just not how people operate."

Point is made in this Adam Curtis documentary, which features John Nash himself looking like a fucking vampire. (Connoisseurs will also note the presence of Alain Enthoven, one of McNamara's whizz-kids who later made money by writing RAND studies about how health care should be entirely privatized.)

In terms of workplace cooperation, in my own non-academic experience what I've observed that it's primarily educated people who believe that identifying with the boss will get them anything worthwhile, and I imagine that's bound up with the reluctance credentialed types feel at *ever* thinking of themselves as labor scum.

Unless you get the timing and content of your betrayal perfectly (like that character in the American The Office, from that link you sent me), there's really nothing worth betraying enough that your boss will give you anything for, especially as bosses wouldn't be bosses if they ever perceived having a common interest with their labor scum.

Plus there are social costs too. It's true that Americans seem to be more tolerant of snitching than other places, or at least the place I'm from, where "informing" could have literally lethal consequences, so be known as an informant was to be the absolute lowest of the low, something Eastern Europeans tell me also true in their neck of the woods. However, even here the serial-schemers become eventually ridiculous, disagreeable, and mildly pathetic, so they're getting no real rewards and incurring some actual costs.

So, basically, I agree with you, but so much of the whole "rational choice" enterprise was dishonest (Gary Becker an evil genius in this regard) or pathological (the fucking vampire) from the word go that I don't see why we should engage with its theory of social behavior as though it was made in good faith.

("and certainly not apropos what some papist Supreme Court justice surnamed Kennedy thinks about the institution of marriage", I almost wrote. Laicisist detestation of institutional Catholicism a perhaps less endearing trait I retain from growing up south.)

Hope you get better, or at least less glib-sounding, comments than this. You see, anyway, that I'm probably the wrong person to engage intelligently with the substance of your piece.

techno's picture
Submitted by techno on

OK, so in the same week as we decided anything resembling a democratic control of economic arrangements was going to be outlawed with fast-track on TPP, we are thrown a little bone and we jump for joy.

Help me out here. Does anyone seriously believe this court ruling will settle anything? Of course not. This will be the new Roe vs Wade. The fight over abortion has sucked the air out of political room since at least 1974. Here in Minnesota it almost destroyed what was once the best-organized progressive political party in the country. In 1968, the two top Dem candidates for president were from Minnesota. And yes, just TRY to imagine Medicare without Hubert Humphrey.

Now, the DFL is so lame that our two senators are conservative Eisenhower Republicans and we cannot even beat a Michelle Bachman. But not to worry, I am sure that both conservadem Senators are elated with the gay marriage ruling so not all is lost.

Barmitt O'Bamney's picture
Submitted by Barmitt O'Bamney on

“You work three jobs? Uniquely American, isn't it? I mean, that is fantastic that you're doing that."
President George W. Bush
To a divorced mother of three, Omaha, Nebraska, Feb. 4, 2005

I'd be real careful about asking the Supreme Court or other elite organs of the United States to affirm the dignity of working class identity because the idear above is what you'll most likely get from them.

You, as a upstanding example of the American working class, have the right to be paid 10 pence in a pound - that is, after all the bondholders and shareholders have first been satisfied. You have the right to listen to country music and drown your lifelong agony in cheap, watery, domestic beer. You each have the right to make to make individual contracts for employment that are greatly to your detriment, and you can depend absolutely on the supreme power of government to enforce these terms to the letter. 1You each have the right to make to make individual contracts for goods and services that are greatly to your detriment, and you can depend absolutely on the supreme power of government to enforce these terms to the letter.2 You have the right to cover your missing dignity with sports team regalia and with the American flag, for which so many of your relatives have given their lives in exchange for the honor of politicians' cheap lies, and soldier's pay.

In your stoic acceptance of the grunge and misery we call the 'Homeland' you are an inspiration to us all! We toast you from the fantails of our sparkling new yachts. Or we would, but right now we are very busy drafting and lobbying for new trade treaties to cut ourselves free-er from the burden of ever having to pay you for work, or from having to listen to you complain about "conditions" or "the environment", etc. We are way too busy to tell you the details now. Besides it would bore you. You'll hear all about it later, after we've crammed it down the throat of your "democracy".

But please don't misunderstand, working class slobs: we appreciate you for who you are! Your working class identity -your essence- is to suffer deprivation in the land of plenty, while clinging to the idea that holding your head up somehow amounts to a life lived with dignity. We fucking love that about you, and wouldn't want you to change it by one hair on your mullet head. And we will work tirelessly to enshrine it and to fortify it in our laws so that you will always be able to express that identity!

I think it's much more likely that the good and the wise men who run the courts and law schools and legal think tanks would affirm the idea of workin' man's "dignity" sketched above than anything like what you're proposing. "Shielding little people from the hurly burly of competing for scarce jobs? Why that's the most insulting thing I've ever heard! As if our working people weren't tough enough to take it. They're born tough. That's why they identify with pickup truck commercials which are all over television. (You perhaps see the grille of truck; they see their own rugged features reflected in chrome and sheet metal.) In fact they just happen to be the toughest of their rough handed breed living and scabbing and fornicating anywhere on the planet. Therefore, calling our workers sissy like that with your foreign sounding Nanny State scheming lawsuits to protect them from the very source of their pride -their ability to endure a lifetime of hard work for shit pay from bad bosses- is not just an insult to workers, it's an insult to Americanism and to every Americanist who has ever held America dear!

1. According to the reading of the letter of the law preferred by the counsel of the litigating corporations.

2. According to the reading of the letter of the law preferred by the counsel of the litigating corporations.