26 Jun 2015

Today’s opinion in Obergefell v. Hodges reads like a coda: Justice Kennedy tying the knot on the string of gay rights cases he’s crafted over the years. It’s light on legal analysis, relying on previous precedent for most of the heavy lifting. Instead it’s mostly a straightforward affirmation of basic fairness and dignity for the actual human beings involved.

The core dispute between the majority and the minority is what the Bill of Rights means when it says “liberty,” which reflects a wider disagreement in American jurisprudence–whether liberty encompasses only those rights recognized at the time the Bill of Rights was ratified, or whether rights broaden and evolve over time. Justice Kennedy is firmly in the latter camp, but what I love most is how eloquently and clearly he articulates this:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. (p. 11)

But I think Kennedy said it even better in his landmark opinion in Lawrence v. Texas, which invalidated anti-sodomy laws:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 18)

We cannot be said to be making progress unless our rights are broadening and the circle of those who enjoy them is widening. Indeed, we are more free today than we were yesterday.