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Dignity: Who Has It, and Why Do We Care (or, Dignity, Schmignity?)

May 11th, 2009 No comments

How much would I care about my dignity if no else had any, either?

The question scarcely makes any sense, because dignity is valued only in relation to others, of course. It’s closely related to “esteem,” a regard in which most of us want to be held; I’d rather be the “estimable me” than not.

The matter of dignity came to mind earlier today when reading an account of yet another marriage equality update, this one at the New York City Bar late last week.  (H/t Michael Ginsborg) Towards the end of the program, Katherine Franke, a Columbia law professor, was sounding a cautionary note about the amount of time and effort devoted to the issue. One problem with this “marriage-equality-eats-through-everything” approach is that it runs the substantial risk of marking for inferior treatment other forms of family. That’s right, and as Nancy Polikoff, in particular, has eloquently argued, we need to “value all families,” however defined, and to create structures that respond to people’s real needs. (BTW, here is her analysis of what’s going on in D.C., complete with discussion of parts of related District laws that “value all families.”)

To Franke, the idea that marriage “ennobles and enriches human life” is limiting: “[T]o cloak marriage in this kind of teleological frame that all of us as adults should hope and aspire to obtain, communicates something that I think violates the movement that I joined many, many years ago.” Perhaps we can fuse Polikoff’s insights to Franke’s caution to state that marriage is just one of many ways to achieve one’s own authenticity, and that the continued trumpeting of “all marriage, all the time” risks drowning out that basic insight.

Then, though, Franke said something else that seemed to me just….wrong. She expressed a strong preference for marriage equality decisions that focus on equality, finding the focus on “dignity” that comes with fundamental rights analysis to be troubling. She cited the California and Massachusetts decisions in making her point. What she’s missing, though, is that both courts expressly connected fundamental rights and equality. This connection especially permeates In Re Marriage Cases, the California decision.

This isn’t the place to get into an extended discussion of the text, but a few passages illustrate the point. For example: “one of the core elements embodied in the state constitutional right to marry is the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples.” (183 P.3d at 444.)

Recall that the California Supreme Court was making its decision in a state that already had a domestic partnership law that conferred substantially the same benefits on same-sex couples as marriage does on opposite-sex couples. So, “in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.” (Id. at 445.) The court went on to remind us that this thoroughly discredited idea that “separate is equal” has been tried, and rejected, in the case of race and gender.

Perhaps Franke was simply making the point that marriage equality is just the first step in a more comprehensive assessment of legal fairness and social significance, and her point was lost in translation from panel to report. In any case, it’s worth remembering that courts can and do only address the controversy before them; in so doing, they’re right to insist that likes be treated as likes, and to fuse the related pillars of equality and basic rights.

You’ve got dignity. Where’s mine? And then, what about everyone else?

The Limits of Marriage Equality

January 7th, 2009 No comments

What is marriage equality for, anyway?

Is it for gays and lesbians to gain access to the many benefits of marriage?

Is it for us to be recognized as full and equal citizens, with the benefits best seen as a welcome “side effect”?

Maybe it can stand for something much broader – equality not as an excuse for the complacency that assimilation too-often creates, but as the impetus for broader engagement on the most fundamental issues of social and political justice.

Huh? Let me be less abstract.

Begin by imagining a time, likely in the not-too-terribly-distant future, when full marriage equality is achieved. This achievement will be vital and inspiring, because it will represent a crucial step in the recognition of our citizenship and – equally – our common humanity. Nothing that I’m about to add should be read as detracting from the importance of that step. Unless and until our relationships are accorded the full respect that only legal recognition can create, we’ll remain outlaws in many senses of that freighted word.

Was marriage (of all things!) the right place to stand? I think so, but at this point, it doesn’t matter. This is where we are standing, so we have to win. It’s that simple. We can’t allow our fellow citizens, often by simple majority vote, to deprive us of rights that under any reasonable legal analysis are fundamental. I won’t even bother discussing civil unions here, because their inability to deliver equality is too apparent for further discussion. (But in case you want such discussion, here’s what the New Jersey and Vermont commissions studying civil unions had to say; here, too, are the views of the California and Connecticut Supreme Courts.)

But marriage equality should do more than legally empower us: It should inspire us to look more broadly at issues of basic fairness, justice, and consistency. As Nancy Polikoff, a law professor at American University has pointed out in her excellent book “Beyond (Straight and Gay) Marriage,” sometimes marriage-lite alternatives such as domestic partnership have not only enabled the forging of broader coalitions, but have also created greater access to simple fairness in the process. For example, why shouldn’t any two adult household members be able to gain health benefits from the employer of one of them, if such benefits are afforded to married couples? Domestic partnerships can permit same- or opposite-sex couples who can’t or won’t marry (and why should they have to?) to achieve parity with married couples in specific areas where tying benefits to marriage is questionable, at best.

This recognition, in turn, invites broader questions, not only about the connection between marriage and benefits, but about the broader distributional choices involved in shoveling cash and prizes towards married couples while we ignore many deep social inequalities. To be pointed: Is it obviously more important to provide spousal social security death benefits that are not at all means-tested than it is to make a greater national commitment to the still-invisible victims of Hurricane Katrina? Are the tax benefits to joint filers of greater importance than a national commitment to health care? If so, make the case – let’s not just continue to assume that marriage should be as thoroughly subsidized as it is.

I hope that, once the marriage battle has been won, we can use our new confidence and freshly minted, full-class citizenship, to take up the battle for equality – not “just” marriage equality.