Firm Blog


Posted by: Valerie Yarashus

The recent U.S. Supreme Court decision on marriage equality is so historic that it would be hard to write about any other topic this week.   One of the most beautiful, and most quoted, passages from the majority opinion written by Justice Kennedy is as follows:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

At the same time, one of the passages I find to be the most disturbing and puzzling appears in a dissent authored by Justice Thomas:

“Human dignity has long been understood in this country to be innate….The corollary of that principle is that human dignity cannot be taken away by the government.  Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.  Those held in internment camps did not lose their dignity because the government confined them.  And those denied government benefits certainly do not lose their dignity because the government denies them those benefits.  The government cannot bestow dignity and it cannot take it away.”

I respectfully hold a different opinion.  In a historic sense, the recognition and protection of minorities by the Court is one of the most important ways in which our judicial system can acknowledge and reflect the respect and dignity that all people are owed.   It is one thing to say that all people have inherent dignity and worth, but another thing altogether to say that this means a government cannot take away (or grant) dignity and respect to individuals.

In Massachusetts, we have a wonderful resource for understanding the experience of African Americans in the courts: a museum-quality exhibit entitled “A Long Road to Justice.”  Years ago, I learned from this project  the details of African Americans’ experience in Massachusetts courts during the 17th, 18th and 19th century, whether people of color sought to be included as litigants, witnesses, jurors, attorneys or judges. According to this valuable research:

“In Massachusetts colonial courts, both enslaved and free African Americans could only participate as litigants—plaintiffs or defendants in a legal action—or as witnesses. Not until the 19th century were blacks admitted to the bar as attorneys, or allowed to serve as jurors. The first African American judge was not appointed in Massachusetts until 1883.”

Indeed, recognizing the legal rights of former slaves to be litigants opened up important consequences in the law.  It also changed ways of understanding power in our society at the time.  In 1781, a former slave (Elizabeth Freeman, also known as Mum Bett) who had been severely burned by her owner’s wife –  and subsequently run away  – was brought to court by the slave owner so he could “claim his property.”   Mum Bett, in turn, brought a claim against her former owner for monetary damages for her injuries, and also requested that the Court set her free.   The Massachusetts trial court did just that, awarding her thirty shillings plus court costs, and declaring the slave system to be null and void under the Massachusetts Constitution of 1780.  It is hard to imagine a more dramatic way for a Court to afford dignity and respect to an individual.

On a different level, but one that I see on a regular basis, the law recognizes some but not all claims of family members in wrongful death or serious personal injury cases.   My last column dealt with loss of consortium claims in the modern family:   In Massachusetts, it is quite clear that whether or not a same-sex couple is legally married is the difference between a) a recognizable/compensable claim for loss of consortium (or wrongful death claims) and b) no legal remedy.   This means that if a couple was living together for thirty years but never officially married, there would be no right for the survivor to be a beneficiary under the wrongful death statute, regardless of what rights a person tried to bestow through a contract or a will.

So, can a Court grant respect and dignity to a person?  While all people should have inherent dignity and worth that a Court cannot take away or bestow, I believe that the practical answer is:  history has shown us that the answer is yes.    Fortunately, the majority of the United States Supreme Court got it right when it ruled that marriage equality for same-sex couples is now the law of the land.

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