Dignitas Versus Auctoritas


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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70 Responses

  1. Avatar Rose Woodhouse says:

    Burt, your decision to break the arguments down is extremely clear and helpful. Very impressively done, and your contention that sometimes one argument can be an answer for another, and sometimes it misses the point is dead on. Really impressive and helpful post.

    Philosophy uses the concept of dignity, too, and it can be very fuzzy. Often, dignity question-beggingly refers to things that the arguer would like to possess. Sometimes it’s a preserved autonomy. But it’s also used for the non-autonomous, such as children. Sometimes it can mean being non-disabled – either in terms of preserved autonomy or freedom from pain, as in Death with Dignity movement. Sometimes it’s a catchword for privacy.

    What was interesting about Kennedy’s arguments, I think, is the idea that the state does not just *preserve* dignity, but is invested with *bestowing* dignity. That seems (and I say this as a progressive, albeit far from a diehard one) far too activist a notion of government.

    I thought the Michigan lawyer relied far too heavily on procreation, which is really the weakest of anti-SSM arguments for the blatantly obvious reasons that 1) straight infertile couples have been marrying for at least centuries if not millennia, and 2) gay people have kids. Also, his point that marriage is not historically seen as an emotional commitment is factually false. I’m watching Wolf Hall right now – witness how important it was to Henry VIII to marry someone with whom he had an emotional connection. It trumped all political considerations. You see it in the Bible, where there are frequent references to emotional connections between spouses. You see it in poetry and novels dating back centuries – spouses who love each other, spouses who fail to love one another, spouses who grieve deeply when their partner dies.Report

  2. Avatar Damon says:

    Here’s what I’m curious about regarding marriage in general, given my POV. How is it that marriage, in whatever form, came to be a product of the State? I mean, it’s a marriage license….a permit to marry. Who thought it was a good idea for that?Report

    • Avatar Rose Woodhouse in reply to Damon says:

      Aren’t there specific property laws that were enshrined in tradition that the state has an interest in protecting? Also certain rights, such as medical decision-making?Report

    • Avatar North in reply to Damon says:

      Frankly Damon marriage was a tribal/family group/proto state and finally state institution before it was a religious one. It was how political and economic alliances between groups of people were nailed down. It’s probably older than politics. Marriage was political and state related before there were even states.
      In the west, IIRC, the Catholics only moved into the marriage business big time as the Western Roman Empire crumbled away.Report

      • Avatar LeeEsq in reply to North says:

        Separating religion and state also required the government to get into a lot of clerical activities previously done by churches like registering births, marriages, and deaths. Civil marriage was an important part of the struggle against the Catholic Church in 19th century Europe.Report

      • Avatar Jaybird in reply to North says:

        marriage was a tribal/family group/proto state and finally state institution before it was a religious one

        It seems to me that we can find examples of it being a religious one before it was a state institution… to the extent that religion is tied in with tribal/family, it’s part and parcel with that.

        Religion is the ur-State.Report

        • Avatar Chris in reply to Jaybird says:

          Even in the West, for a millennium or so it was the Church that recognized marriages, not the state.Report

          • Avatar Mike Schilling in reply to Chris says:

            In a highly politicized way. Henry VIII was unable to have his marriage to Catherine of Aragorn dissolved, not for religious reasons, but because her nephew was the most powerful man in Europe and at that moment was holding the Pope prisoner. The horrifically incestuous marriages that eventually doomed the Spanish Habsburgs were routinely granted papal approval because the Habsburgs were not only the most powerful family in Europe but also fervent supporters of the Church.Report

            • Avatar Kim in reply to Mike Schilling says:

              Henry the 8th loved his first wife, too. The only reason he tried to get an annulment was because he thought he needed a direct successor to prevent his entire country from falling into ruin.Report

          • Avatar Jaybird in reply to Chris says:

            I mean, they talk about “Noah’s wife” in Genesis 6.Report

            • Avatar Will H. in reply to Jaybird says:

              Hammurabi also talks about marriage in a legal sense; that the amount of dowry acts as a lodestar figure for determining upkeep upon dissolution, etc.Report

              • Avatar Jaybird in reply to Will H. says:

                That predates the 10 Commandments by a few centuries, as far as I can tell by perusing the wikipedia.

                Man, I wish we had better documents.Report

              • Avatar North in reply to Jaybird says:

                The core point is that anti-statists are kindof off base if they talk about gumming snatching marriage up. Really marriage was almost always a government concern and if anything religion was the party that interjected itself. The pastor at the altar has changed brands a lot over the millenia, but the gummint official/form on the table has been nearly unchanged.Report

    • Avatar Burt Likko in reply to Damon says:

      I suspect the answer to your question is “the Puritans,” and before them, “Henry VIII.” The puritans intentionally blurred the line between ecclesiastical and civil authority, and Hank 8 needed to control who could and could not be married personally rather than relying on the Pope for help.Report

    • Avatar j r in reply to Damon says:


      Others likely no more about the specific genealogy of our current marriage laws, but I’m not sure that you are looking at this the right way. It’s not so much that the state grants you permission to marry as much as it agrees to give your marriage a particular legal status.

      There’s nothing stopping any two people from finding a willing officiant, religious or otherwise, and getting married without a permit. It’s just that the law won’t recognize you and your partner as a married couple, at least unless some common law provisions kick in.Report

      • Avatar morat20 in reply to j r says:

        One thing I’ve noted for years — one could always get same-sex marriage, going back decades. Some churches have been doing it far longer than the law allows.

        Yet the law wouldn’t recognize these marriages.

        And every time I saw the argument about government meddling in religion when it came to same sex marriage, I thought it odd that “What about the religions that DO marry same sex couples? Is ignoring the validity of those marriages not equally as meddlesome?”Report

      • Avatar Jaybird in reply to j r says:

        Yeah, my argument against the Christians opposed to gay marriage was always “it won’t matter if you say that people aren’t *REALLY* married before you prevent them from visiting each other in the hospital, or leaving property to each other, or forbidding the joint ownership of property. At the end of the day, you’ll be preventing people from visiting each other in the hospital, leaving property to each other, and forbidding the joint ownership of property. This will eventually start to be really, really depressing for you.”

        At the end of the day, Obergefell is about someone refusing to put a guy’s name on another guy’s death certificate on the “surviving spouse” line.Report

    • Avatar LeeEsq in reply to Damon says:

      There isn’t a universal answer for this.Report

    • Avatar Road Scholar in reply to Damon says:

      Damon, while I agree with the other responses that have been offered, I suspect you’re really asking a more fundamental question. “Why does ANY authority need to be involved in a contract between consenting adults?”

      And the answer I would give is that marriage isn’t fundamentally a contract. Sure, it has that dimension of the two parties agreeing to enter into the relationship but that agreement, the engagement, is not at all enforceable as a contract would be. The part that has teeth and actually means anything is the recognition by the community or larger society that such a relationship exists. In that regard the marriage certificate is akin to a birth or adoption certificate that recognizes a parent/child relationship or even a property title that publicly recognizes an ownership/object relationship. In all these cases the certification of the relationship relies on the recognized authority of a certifying official, be it civil or ecclesiastical.

      The interesting thing to note here may be that in thirty years of marriage I’ve only twice been required to produce our marriage certificate. And in both cases, my current job and when I joined the Navy, the purpose was to ensure that the dependents I was claiming for purposes of benefits were legitimate. Everyone else just pretty much takes you at your word. Unless and until a counter-claim or challenge is offered. Then it serves as proof positive, which can be pretty important when the distinction is between “unrelated strangers” and “closest legal kin.”Report

  3. Avatar zic says:

    I’m just digging in here, and while I’m sure the came to it at the same, time, I think the first post published noting ‘Diginity’ (at least that I encountered,) was from Dahlia Lithwick’s Slate piece; published a full day before Rosin.

    Not so much to say Rosin’s isn’t ‘original analysis,’ but to point out that multiple court watches are saying similar things, though Lithwick brings it up as a matter important to Kennedy and not, necessarily the new something protected (which Rosin was very concerned about).Report

    • Avatar Burt Likko in reply to zic says:

      You know, that may be right but I’ve been so harried mentally by other things that I’ve not read Lithwick so I just wouldn’t know. I love Lithwick’s SCOTUS coverage, and I think she brings a fresh, clever, and dare I say it, fun perspective. Just haven’t got to her yet — in part because I wanted as much of my own analysis as I could muster rather than doing a secondhand digest.Report

      • Avatar zic in reply to Burt Likko says:

        When I was writing professionally, I struggled with fresh voice vs. informed voice stances a lot. Mostly, I though Rosin’s pieces seemed a response to Lithwick (Remember when I asked for a post? These two pieces are the reason.)

        So what I’m really interested in is Dignity. Like Privacy, this would be something new. When you have time:
        – are there other penumbra rights? Things not expressly said, but that help define the relationship of citizens to the state?

        – Can you, or anyone else, think of other examples, outside of marriage, where dignity might be used in ways that many seem to fear? I guess in how we’re policed, Freddie Gray’s treatment lacked dignity; but I don’t see that as something that will happen soon.

        Finally, this is brilliant:

        Now, you may have already decided that I’m a horrible person for reducing the debate about one of the most critical and prominent civil liberties issues of our lifetimes into a series of six essentially standardized arguments and the Supreme Court’s argument as though the arguments were being deployed against one another like so many Pokémon cards. If so, bear in mind that Chief Justice Roberts and Justice Kennedy and General Verrilli all tacitly do the same thing here, attaching labels to the arguments to talk about them.

        I often think of SC cases as actual arguments made in briefs and filings, education for the public about those actual arguments made in the court room. It’s to some degree, theater; designed to help ignorant schlubs like me understand the rulings the court makes; the court’s PR machine, so to speak; which requires translators in the for of writers like you, and thinking of the various arguments as objects (as in object oriented programming) or perhaps as different types of LEGO, is a good way to break it down.Report

  4. Avatar Jaybird says:

    I’m pleased that “decades of established precedent” doesn’t show up in this essay anywhere.

    I hope that we can finally get over using that as a justification for bad laws.Report

    • Avatar Jaybird in reply to Jaybird says:

      (Sorry, didn’t mean to get my Citizens United in your Obergefell)

      More seriously, I’m not sure that the types of homosexual relationships that they had in ancient Greece really provide the best examples of what SSM advocates wanted to be explored in the discussion of marriage.

      Anyway, I don’t know the extent to which social science ought to have an impact on rights.

      The argument about siblings getting marriage protections is one that Colorado tried to address with Civil Unions a few years back. They tried to offer a relationship that any two people (any two unmarried people, I mean) could enter into and get marriage protections. I mean, “Civil Union protections”. Focus on the Family supported it. I don’t think that siblings getting marriage protections is the dealbreaker the court seems to think it is.

      When they talked about the Nguyen case, I don’t know what they were talking about… and it’s an INS case? Kudos for the clerks who dug that one up and tried to shoehorn it in.

      I really liked Kagan’s arguments. I wish that more judges showed anything near that much deference to stuff like “we don’t live in a pure democracy; we live in a constitutional democracy. And the constitutional the Constitution imposes limits on what people can do and this is one of those cases we see them every day where we have to decide what those limits are or whether the Constitution speaks to something and prevents the democratic processes from operating purely independently” as she does here. Including her.

      The main thing I was looking for was incredulity that marriage isn’t mentioned in the Constitution which would have allowed me to rant about the 9th Amendment for a while.

      As it is, we’re stuck talking about the 10th. And that’s a lot more dicey, here.Report

      • Avatar Kolohe in reply to Jaybird says:

        FoF ain’t bullish on civil unions anymore

        Battered by high rates of divorce and cohabitation, unwed child-bearing and the push for so-called same-sex “marriage” and civil unions, marriage is in a state of crisis


        • Avatar Jaybird in reply to Kolohe says:

          You know, I wish that they would argue that marriage is in a state of crisis and that’s a reason to push for stuff like Same-Sex Marriage rather than oppose it.

          How much easier would it be to lean on the whole “WHAT ABOUT THE CHILDREN???” argument?

          Arguing against single motherhood, arguing against cohabitation, arguing against divorce becomes a lot easier if you support SSM.

          Hey Christians: you can say “You’re living in sin!” to the faces of homosexual couples and it’ll be approved by society! Just think about it.Report

          • Avatar Kazzy in reply to Jaybird says:


            This is my thinking. I didn’t understand the argument that SSM would lead to more opposite-sex couples getting divorced. I can think of two potential rationales for that position:
            1.) Straight folks are going to divorce to go gay marry someone.
            2.) SSM will harm the ‘institution’ of marriage such that straight folks will see divorce as not such a big deal.

            I mean, I can see people making those arguments. I’d be shocked if any actual evidence exists to support them.Report

            • Avatar Jaybird in reply to Kazzy says:

              The argument that makes sense to me is one of “if you make marriage about two people who love each other rather than about two people who want to start a family, you’re going to end up with a lot more couples that believe that marriage is about feelings (which end) than about families (which you’re stuck with)” but that changed long before homosexuality was removed from the DSM.Report

              • Avatar Kazzy in reply to Jaybird says:


                And that doesn’t necessarily mean fewer happily married couples.

                If 100 people marry and 10 get divorced, you have a ‘success rate’ of 90% and 90 married couples.
                If 200 people marry because marriage is now a broader institution and 30 get divorced, you have a ‘success rate’ of just 85% but you now have 170 married couples.

                It seems this argument is predicated on the ‘success rate’ instead of the total number of married couples. A greater frequency of divorce does not necessarily mean fewer successful marriages.Report

      • Avatar Kim in reply to Jaybird says:

        Yes, we can PLEASE not talk about pederasty (which the greeks supported) in the same sentence as co-equal marriage/relationships (which the greeks detested).Report

  5. Avatar Kolohe says:

    I think I love the fashion vignette most of all.

    4. The Argument from Harmlessness: Same-sex marriage is a private decision between consenting adults, which causes no harm to anyone else and which implicates no substantial legitimate governmental interest. Therefore, it should be permitted.

    What I don’t get about this is that the US government has long expressed an interest in marriage. A month or so ago, everybody sent to the IRS information whether they were married or single which in turn influenced the taxes still due (or money owed back).

    I think this very much undercuts the anti-ssm case in that this is obvious case where marriage is important, but kids not necessarily so, but it does show that there a “substantial legitimate government interest” does it not?Report

    • Avatar zic in reply to Kolohe says:

      +1 on both points, @kolohe

      If, for some horrific reason, I’m hospitalized today and my husband presents himself as my medical-decision maker, nobody will question that he’s my husband; we’ll not be asked for a marriage certificate at the hospital. But until my state approved SSM, that’s exactly the trouble my brother and his partner had — they were required to produce the legal contracts they’d made giving each other that decision-making power.Report

  6. Avatar j r says:

    Mr. Rosen even goes so far as to point out that describing dignity as a dimension of liberty may well wind up having a dark side that might later be regretted by liberals, progressives, and others who would applaud a finding in June of a Constitutional right to same-sex marriage.

    I read Rosen’s article and I found this dimension of his argument flabbergasting. Maybe I am an misunderstanding it, but it appears to come down to something on the order of let’s be careful about celebrating the court’s respect for dignity in cases involving things we like, like same sex marriage, because that same respect for dignity could let people do lots of things that we don’t like.

    Has contemporary progressivism really moved that far away from its roots in political liberalism? This idea of mutually respecting human dignity is one of the first principles of political liberalism. I’m going to respect your right to do all sorts of things that I don’t necessarily agree with, because I want you to respect my right to do all sorts of things that you don’t agree with.Report

    • Avatar Kim in reply to j r says:

      I worry about what “dignity” is going to mean. It sounds squishy to me.
      Now, if we’re construing “government shall not take away dignity” — that falls in the same lines as “right to privacy”, and I can fully support that.

      But having dignity as a positive right? I’m not certain about that. The “right to pursue happiness” is going to cause us ENOUGH fits (actually, that’s probably not considered a legal right… at least I hope not).

      Consent, to take a different subject, may be squishy — but that’s mostly because we accept that having sex isn’t “pulling out a kidney” and thus we can allow slightly less informed consent without considering it illegal.Report

    • Avatar North in reply to j r says:

      Speaking personally his examples did not move me much. IIRC he brought up gun controls being struck down and the rights of business owners to refuse service for wedding services. Frankly I’m not worried about either of those at all.Report

  7. Avatar morat20 says:

    I suspect if SCOTUS goes for SSM, Roberts is gonna try really hard (and Kennedy will probably come along) to reduce it to sex discrimination.

    That, effectively, plows no new ground. Sexual orientation doesn’t get a boost towards becoming a more protected class, no new doctrines are created, no new tests. Just an application of an already existing precedent.

    I did find the constant refrains of ‘millennia of marriage traditions’ annoying. That could only be said by very Western-centric folks who didn’t even have a passing familiarity with history.Report

    • Avatar gingergene in reply to morat20 says:

      Yeah, one thing I wondered about the Argument By Definition/History is why no one said “Nuh-uh.” I mean, the very book that most anti-SSM people point to in their Argument from Conscience both describes and condones polygamy (in some cases, demands it).

      Also, for pete’s sake, polygamy is currently legal in many countries.

      So clearly marriage doesn’t have to be, and hasn’t always been, limited to one man and one woman. I guess you might argue that it has usually included at least one man and one woman, but most anti-SSM peeps aren’t okay with plural marriage either (as evidenced by the Argument by Slippery Slope).

      Clearly, societies have changed the definition of marriage before, and the world kept on spinnin’, somehow.Report

      • Avatar Kolohe in reply to gingergene says:

        To be fair, all the places that allow polygamy are kinda crapsack countries. iow, it’s not a ringing endorsement (though it’s the most post-hoc fallacy ever) to say, “Hey, they allow this in Iraq and Libya, so what could possibly go wrong?”Report

        • Avatar Kim in reply to Kolohe says:

          Well, I think that Australia is kinda a crapsack country, but most people deign (or is that feign) to call them first world.Report

        • Avatar Notme in reply to Kolohe says:


          How can you insult those countries and their cultural and religious heritage? You should check your white western liberal privilege.Report

        • Avatar gingergene in reply to Kolohe says:

          1) The argument was simply “marriage has always been between one man and one woman”. Clearly, that ain’t even remotely true.

          2) A majority of people in this country (and the overlap with anti-SSM peeps is very broad) have no problem appearing on the same list with most of those same countries when you talk about stuff like the death penalty. Post-hoc, ad-hoc, take your pick.

          3) On the other hand, the “crapsack countries” defense sorta implies that moving from polygamy to monogamy was progress (only in the good sense of the word, natch), which itself implies both that marriage can progress, and that it should continue progressing. (Also, it’s a difficult sell, to put it mildly, that gay marriage is the beginning of the road to Sharia law.)

          4) You’ve still got to explain why it was totes cool that Solomon had all those wives (and women who weren’t even wives), but nowadays to allow such a thing would be TEOTWAWKI.

          I would have no problem re-defining marriage even if we’d never done it before, and any concerns I had would fall under the Argument from Prudence. I suspect you think similarly and are playing devil’s advocate, which I appreciate. I’m still left wondering why no one dispatched this argument simply by pointing out that it was untrue.Report

    • Avatar j r in reply to morat20 says:

      I did find the constant refrains of ‘millennia of marriage traditions’ annoying. That could only be said by very Western-centric folks who didn’t even have a passing familiarity with history.

      Understanding history is just an incredible nuisance when you’re just trying to use history to backwards rationalize your current prejudices.Report

      • Avatar morat20 in reply to j r says:

        Soyatameyer was, at least, pushing back. Modern marriage, in America, is either a century old or about 30-40 years old, depending.

        Go back more than a century, and marriage is effectively a transfer of property (the woman) between two men.

        Go back more than 30, and you’re past no-fault divorce and interracial marriage, both of which were significant components of ‘modern marriage’. A marriage is something EITHER party can exit, and is between any loving couple of age (as long as they’re not the same sex). Both of which were fairly significant changes.

        Pretty sure some of the amicus briefs cover all that, though.Report

  8. The Argument from Conscience bothers me a great deal, since it’s a perfect argument against all forms of religious toleration, including, say, allowing mosques (or even synagogues) to be built. Just make one simple substitution:

    A person might wish to condemn recognition of false religions as morally wrong, as when they feel compelled to do so by way of religious creed. Writing recognition of false religions into the law compels such people to afford dignity and recognition to something they personally believe to be morally wrong, legally overriding their own consciences.Report

    • I’m mostly with you on this, @mike-schilling . This is particularly true when we are discussing not just this argument in this context, even moreso its close legal cousin, the way that the Religious Freedom Restoration Act is being used in contemporary jurisprudence.

      When this argument is used with sincerity and in good faith, I think there is some meat on those bones that requires a candid response: “Yes, you may indeed have to acknowledge and tolerate something that you would prefer did not exist. Your approval is not what is demanded, only your tolerance. This is the price of living in a pluralistic society.”Report

  9. Avatar SaulDegraw says:

    Bursch looks like he is about 17 years old.
    I find it interesting that you called his firm prestigious because there was an article in the NY Times about how the really big and
    Prestigious firms don’t want to be anywhere near the anti-Ssm crowdReport

  10. Avatar SaulDegraw says:

    Also how am I supposed to top this?Report

  11. Avatar Iron Tum says:

    The question that is begged in all sides of this argument is “The person who is (nominally) the primary contactee of my genitals should also be the primary recipient of any benefits that accrue to me and the spokesperson for me upon my incapacity.”

    Apparently I am the only one who finds this ludicrous.

    Although I know the actual answer is “existence bias.”Report

    • Avatar Kolohe in reply to Iron Tum says:

      Iron Tum: The question that is begged in all sides of this argument is “The person who is (nominally) the primary contactee of my genitals should also be the primary recipient of any benefits that accrue to me and the spokesperson for me upon my incapacity.”

      Hence the old saying, ‘Talk to the hand’Report

  12. Avatar Zane says:

    This was a wonderful, informative read, Burt. Thank you so much!

    I’m actually a little baffled by the apparent power of the Argument from Dignity perspective with Justice Kennedy. I’m not sure why it’s particularly persuasive legally compared to the Argument from Equality, the Argument from Fundamental Rights, or the Argument from Legal Uniformity, which all seem much more grounded in the Constitution and legal tradition to this non-attorney.

    I also have to say I’m not sure that I want or expect the state to bestow or recognize my dignity in terms of my relationship with my husband. It’s been a (mostly unspoken) point of pride for me that we had been together for over a quarter of a century before society bestowed any recognition, let alone approval, on our pairing. I don’t need dignity bestowed, we have been successful despite homophobia and heterosexism from every corner. I want my damned equality! I want to be assured of hospital visitation, decision-making, uncomplicated inheritance, some modicum of financial security that comes from sharing lives, and so on and so forth.

    At the same time, I’m not sure why the fact that I’ve been in a successful relationship makes my husband and me somehow more admirable than my friends who are single. While I believe I should have the same rights and privileges as someone who by chance is heterosexual, I recognize that marriage equality is not an especially effective way to make people’s lives better off in general. I was one of those gay folks who would have much rather focused on universal healthcare as a solution to uninsured partners of gay employees. Luckily, we (sort of) ended up with both. Partly.

    If society deigns to define my relationship as worthy because it (eventually, I hope) has legal status in my state of residence, that’s fine. But it’s not the most important thing to me.Report

    • Avatar Burt Likko in reply to Zane says:

      For what it’s worth, @zane , assurances “…of hospital visitation, decision-making, uncomplicated inheritance, some modicum of financial security that comes from sharing lives, and so on and so forth” appear to be precisely what Justice Kennedy has in mind when he contemplates the state as bestowing dignity through use of the word “marriage.” I get it with my opposite-sex spouse; there’s no good reason at all that you shouldn’t get it with your same-sex spouse the same way. (Note: Argument from Equality.)Report