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 . 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 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
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 .
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). 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 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. 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.
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 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 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. , 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 .
(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.
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.
 I'm deliberately avoiding dimly remembered terminology from the late 70s. See, e.g., Beneria, "Reproduction, production and the sexual division of labour."
 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 .
 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.
 While continuing to finance it, and purchase the fruits of slave labor.
 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.