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So here’s another rough and dirty SNIPPET from my upcoming lecture on the FREE AND RELATIONAL PERSON AND THE AMERICAN CONSTITUTION.

The judicial movement to understand the person less relationally, or more as a free individual in the Lockean sense, began in 1965. The Court began, of course, to use the 14th amendment to transform state laws in areas concerning the marriage, reproductive decision-making, and the family. The Court understood itself to be serving the transformational agenda of justice that arguably began with the interpretation of the 14th Amendment with respect to “sex” found in THE CIVIL RIGHTS ACT of 1964.

In GRISWOLD v. CONN, the Court struck down a state law keeping married people from using contraceptives. The Court, through the ingenuity of Justice Douglas, discovered in the penumbras and emanations of the Bill of Rights a right of privacy that keeps state officials from bursting into the sacred precincts of marital bedrooms to search for telltale signs of the use of contraceptives.

Conservatives love to mock the weirdly unconstitutional language of Douglas’s opinion. But he, unlike the Constitution itself, used the word sacred to described marital sex, distinguish it relationally from unsacred unmarital sex. What Douglas thought he was protecting, after all, was the relational life of married persons. There’s a lot traditionally American about that!

The big change in the Lockean direction occurred when the Court used the reasoning of Justice Brennan in EISENSTADT v. BAIRD to strike down a law keeping unmarried people from using contraception. All persons, whether married or not, can decide whether or not to reproduce. That’s because of unmarital sex is just like marital sex in being nothing but a contract between two individuals. In every case, having sex and having babies is about the consent of free individuals. The distinction between sacred and unsacred bedrooms is unconstitutional.

From that observation, it’s a baby step to the Court’s argument in PLANNED PARENTHOOD v. CASEY. A woman‘s right to choose an abortion is part of the mysterious power of persons to define themselves however they choose. A woman, just like a man, has the right to organize her life as a free and equal economic actor, and so to fall back on abortion should contraception fail. Women have the liberty not to be defined as reproductive machines for the state. Because women are free and deeply only optionally relational individuals just like men, they don’t have to recognize any biological limits to their personal identities. Women can’t be considered essentially citizens or parents or spouses under the law. (I admit I’ve ignored the case for the life—the rights and the personal and relational being—of the unborn baby. But to highlight one conclusion sometimes you have to abstract from another.)

The Court then went on to notice, in effect, that just as the Lockean Constiution of 1787 doesn’t distinguished between men and women, it doesn’t distinguish among persons according to sexual orientation. In ROMER v. EVANS, the Court, for the first and I think only time, declares that Justice Harlan was correct in his dissent in PLESSY v. FERGUSON that our Constitution, and so our state law via the 14th amendment, can’t treat persons as members of classes or castes. That means that any law that treats people as homosexuals in unconstitutional, with the exception of laws designed to prevent discrimination against homosexual as homosexuals. We have to assume that any such distinction is unreasonable—or driven by class-based animosity akin to racism.

There was, in fact, a big movement away from this Lockean or individualistic understanding of the person in Justice Kennedy’s fascinating and pathbreaking opinion for the Court in LAWRENCE v. TEXAS. In explaining why Texas’s does violence to personal liberty by outlawing homosexual sodomy, Kennedy declared that all persons have relational autonomy. It’s an offense against human dignity—against who we are as autonomous and relational persons—not to assume that every sexual encounter a person has is part of a broader personal relationship. We now know, we in our generation were the first to discover, that the Constitution protects relational autonomy by not allowing our law to make any judgment about the quality or content of intimate personal life.

By understanding free persons not as individuals but as dignified relational beings, Kennedy seems to think of himself as importing a kind of Christian sensibility into our Constitutional law, drawing, as he does, from the understanding of personal dignity developed in European courts.

But Kennedy, of course, differs from the Christian tradition by not finding an essentially biological dimension to personal relationships, by detaching them, in the cause of freedom, from any consideration of the biological imperative of reproduction. Because personal freedom is a characteristic of beings mysteriously not essentially or necessarily defined by their bodies, persons can do what they please with their bodies in the services of defining for themselves of their autonomous yet relational lives.

In his recent WINDSOR opinion explaining why the DEFENSE OF MARRIAGE ACT is unconstitutional, Kennedy explains that the only point of marriage is to dignify personal relationships. He couldn’t have quite meant that: His more precise thought is that marriage laws recognize what’s worthy of dignity. Laws that distinguish between one kind of marriage and another degrade and humiliate the kind of marriage the law deemed second class.

Gay activists are already asking, of course: By what right does the law recognize the dignity of some autonomous and personal relationships and not others and so humiliates those who choose for relational sex but not for marriage? Kennedy, I think, has no answer to that question.

A Lockean might say that marriage laws can be justified as indispensable useful limits to individual freedom when it comes to raising the kids to become free individuals. And that’s why Locke says that marriages can dissolve as soon as the kids are grown. But American law hasn’t been that tough on parents for a long time. And according to the theory of relational autonomy—which is basically ghostly Christian or Kantian—mere utility can’t trump the imperatives of personal dignity.

So Justice Kennedy, better than any Lockean, has basically deconstructed marriage by showing why the evolving understanding of constitutional liberty keeps the states from subordinating personal liberty to any imperatives—including the biological imperative of reproducing and raising natural replacements—that limit autonomy.

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