Bigger than marriage equality? Identity just became a core Fourteenth Amendment protection

Friday’s Supreme Court decision did more than legalize same-sex marriage. It declared personal identity and beliefs to be fundamental constitutional rights. 

(Photo courtesy of Ted Eytan/Flickr)

Friday, June 26, 2015 will be remembered as one of the biggest steps toward full rights and respect for LGBTQIA+ persons in United States history. While we still have a long march towards equal treatment and opportunity ahead, our motivation now lives within the law, not outside of it.

Writing for the majority in Obergefell v. Hodges, Supreme Court Justice Anthony Kennedy reminded America that the hope of those fighting this battle was “not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.” He also recorded for all time that the Constitution grants everyone “equal dignity in the eyes of the law.”

But his powerful emotional and visceral appeals to the country to accept marriage equality aren’t the most important consequence of this ruling. Kennedy has made a much more sweeping decision by declaring that “personal identity” is a constitutionally protected legal right.

In a succinct and powerful legal rationale for the protection of personal identity and belief by the Constitution and the Fourteenth Amendment, Kennedy wrote that the due process clause of the Fourteenth Amendment protects the rights “enumerated in the Bill of Rights,” but that its also extends these protections to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

The legal system’s obligation to protect those personal choices, however, doesn’t have a formula. Kennedy’s opinion requires the courts to identify personal interests “so fundamental” that they must be protected using “broad principles rather than specific requirements.” History and tradition “guide” but do not limit this process, nor can the courts allow “the past alone to rule the present.”

He continues, “The nature of injustice is that we may not always see it in our own times.”

Thus, he again reminds us that the people who wrote the Constitution and the Fourteenth Amendment did not have a complete understanding of liberty, but instead provided us with a legal framework under which we can protect liberty “as we learn its meaning.”

“When new insight reveals discord between the Constitution’s central protections and a received legal stricture,” Kennedy wrote, “a claim to liberty must be addressed.”

His opinion indelibly ties the due process clause with the Fourteenth Amendment’s equal protection clause, the interpretation of which must be expanded when “new insights and societal understandings… reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”

After Friday’s ruling, the choices and realities underlying personal identity and belief are now “fundamental liberties” inherently protected for all Americans by the U.S. Constitution.

Now there is a legal framework for challenging the deplorable actions of the immigration system against transgender immigrants of color, as highlighted by Jennicet Gutiérrez when she spoke out during a speech by President Barack Obama at the White House on Wednesday. As she said in her Washington Blade op-ed, the issue is about “gender identity,” which is now a fundamental constitutional protection.

President Obama said Friday’s ruling showed how the millions of Americans who day after day made “countless small acts of courage” proved Bobby Kennedy’s assertion that those actions, no matter how small, are like “pebbles being thrown into a lake.”

“Ripples of hope cascade outwards and change the world,” he said.

Now, the law provides a new basis for millions more acts of courage to defend liberty, equality, and dignity. For millions more ripples of hope to reverberate to the deepest recesses of our society. For millions more Americans to emerge from the shadows and demand the protection, dignity, and equity afforded to them by our country’s laws and Constitution.

We still have a long way to go before we “extend the full promise of America to every American,” as the President said, but now we have a faster way to get there.

Zac Bears can reached at

The case is No. 14-556, Obergefell et al. v. Hodges, Director, Ohio Department of Health et al.


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