In writing the landmark decision in Obergefell v. Hodges, which declared that states must allow same-sex marriage, Justice Anthony Kennedy acknowledged that recognizing basic human dignity is a core Constitutional value.

And yet the Supreme Court seems to have forgotten about the Constitutional value of the dignity of another marginalized and subordinated group in American society – African Americans.

Examining the ramifications of Obergefell v. Hodges, we find a potential huge impact on issues of racial justice, recently highlighted by violent and sometimes fatal encounters between police and minorities.

Equal dignity in the eyes of the law

In his opinion, Kennedy traced the history of marriage as an institution that “always has promised nobility and dignity to all persons, without regard to their station in life.” He also characterized the evolution of women’s rights as one where “society began to understand that women have their own equal dignity,” thereby leading to the abandonment of understandings of marriage as an institution in which the woman was subordinate to the man.

REUTERS/Jonathan Ernst

Kennedy recognized the need to similarly move beyond earlier understandings that “did not deem homosexuals to have dignity in their own distinct identity” to affirm a new constitutional understanding that “that gays and lesbians had a just claim to dignity.” Ultimately, Kennedy concluded his opinion asserting that the petitioners “ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Kennedy’s opinion located the Constitutional value of dignity in what is known as “substantive due process” (SDP) doctrine. SDP derives from the 14th Amendment’s guarantee that the State shall not deprive any person of “Liberty …without due process of law.”

This is derived from the concept of liberty as containing certain fundamental values and rights so important that any law affecting them must be subject to a close and searching review by the Court to insure that they are not being improperly infringed. Obergefell recognized dignity as among those values.

Kennedy declared that just as society’s understanding of the nature and value of women’s dignity evolved over time, so too has our understanding of the nature and value of the dignity of gay and lesbian people.

Intent versus impact

But these tenets should extend to minorities, as well. For too long, our legal approach to racial discrimination has focused exclusively on the 14th Amendment’s guarantee of “equal protection of the laws.” Current equal protection jurisprudence focuses almost exclusively on whether an actor had the intent to discriminate rather than on the impact of the law.

As a result affirmative action programs have been gutted and claims of discrimination in employment and elsewhere are almost impossible to prove.

However, if we focus on dignity, as Kennedy did in Obergefell, the question shifts from one of intent to one of impact. This puts the cause of racial justice back on track.

In 1954, when the Supreme Court struck down the doctrine of “separate but equal” in Brown v. Board of Education, Chief Justice Earl Warren did not focus on formal equality but on his understanding that “to separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Warren did not declare that separate schools were technically unequal; he declared them to be “inherently” unequal. This sort of inequality could not be measured – it had to be interpreted by understanding the common sense impact such separation had upon the children. It was the meaning of the separation in context that created the primary harm here, and that harm was dignitary.

A similar dynamic was at work in the 1967 case of Loving v. Virginia which struck down anti-miscegenation laws. Technically, such laws treated blacks and whites equally – neither could marry a person of the other race. But interpreted in context, the Supreme Court recognized such laws “as measures designed to maintain white supremacy.” There was no way to technically divine this as the formal purpose of such laws – the Court did so through an interpretive act that looked at the law in its social and historical context.

Trusting judges to judge, however, can be dangerous. We should be wary, the argument goes, of giving unelected officials with lifetime tenure such power.

The key dissents in Obergefell

Such concerns were at the heart of the various dissents in Obergefell, which essentially accused the majority of circumventing the progress of democratic politics and pulling their concerns for the dignity of gay and lesbians people out of thin air.

Yet, as Justice Kennedy recognized, “the identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”

Quoting the second Justice Harlan’s dissent in the 1961 case of Poe v. Ullman, Kennedy went on to recognize that, “that responsibility … "has not been reduced to any formula.”

We cannot reduce the rule of law to an impersonal formula. At some point judges must judge.

Some progress has been made in recent years by using findings from social psychology that show pervasive, “implicit” bias in American society. But these limited gains have come at the cost of accepting the conservative frame that focuses on intent.

Furthermore, they are dependent on judges deferring to metrics and data supplied and interpreted by unaccountable experts. This is not in itself necessarily a bad thing, but it is certainly not more democratic than letting judges judge.

Trusting judges not experts

When you have a Constitutional provisions that are fundamentally grounded in concerns for individual dignity, it is more democratic to trust judges than to rely on experts to define equality for us in technical terms of metrics and algorithms without any concern for their meaning.

That way lies a form of judgment reminiscent of Oscar Wilde’s definition of a cynic: someone who knows the price of everything and the value of nothing.

That way lies also Plessy v. Ferguson’s doctrine of separate but equal with its cold logic of technical equality and blind eye to substantive justice._

Brown and Loving were fed by, and in turn fed into, a growing grassroots civil rights movement of the 1950s and 60s. One of the iconic images of this movement is of the 1968 Memphis sanitation workers on strike wearing placards declaring “I Am a Man.”

Ain’t I a woman?

It was in Memphis that Dr Martin Luther King Jr delivered his “Mountaintop” speech the day before he was assassinated.

“I am a Man” (perhaps better rendered today as “I am a human being”) has roots in the abolitionist slogan “Am I not a Man and a Brother?” and in Sojourner Truth’s 1851 “Ain’t I a woman” speech. These are calls for the recognition of a common, shared humanity, based in the fundamental value of human dignity.

Today, we see this sentiment reflected in the “Black Lives Matter” movement.

The call for racial justice must be understood as one with the call for women’s rights and gay rights. It is not just about equal protection of the laws, it is about the substantive constitutional value of not being devalued and humiliated by the state on the basis of fundamental aspect of your identity.

The focus of our concerns here needs to be on the harms done to the subjects, not on the intent of the perpetrators. The decision in Brown did not turn upon the intent of those who passed segregation laws but on the stigma experienced by the children.

Similarly, Justice Kennedy’s opinion did not address the intent of marriage laws but the impact those laws had on the dignity of those whom they excluded.

The daily indignities visited upon black people in this country matter most not because of the intent of any given set of racist individuals but because of the impact they have upon members of our community who deserve better.

Ultimately, the issue is not solely about the law or legal doctrine. It is about how we understand what is at stake in framing and understanding claims for racial justice.

The political philosopher Avishai Margalit has characterized a “decent” society, as “one in which the institutions do not humiliate people.”

From Ferguson to Charleston the actions giving rise to the Black Lives Matter movement constitute dignitary affronts, denials of humanity, attempts to degrade and, in effect, create or maintain a subordinate caste in society. They are indecent, and unworthy of us.

Perhaps in considering future aspects of racial justice as they come before the Supreme Court, we may hope that Justice Kennedy can expand his conception of the reach of dignity and the limitations of intent to include this group and these issues and thereby lead us toward a more truly decent society.