Instead, Kennedy fashioned the opinion around another part of the 14th Amendment, holding that denial of marriage licenses infringed on the liberty of gay men and women by restricting their right to due process. As Justice Clarence Thomas correctly pointed out, liberty under the Constitution has largely been defined as protection against physical restraints or broader government interference \u201d\u201d \u201cnot as a right to a particular governmental entitlement.\u201d\u009d While Kennedy makes a powerful case for an expansive new view of due process, he extends the concept of liberty far beyond prior decisions.<\/p>\n
In reality, he has been building to this moment for years, culminating in what might now be called a right to dignity. In his 1992 Casey decision, he upheld Roe v. Wade on the basis of \u201cpersonal dignity and autonomy [that] are central to the liberty protected by the Fourteenth Amendment.\u201d\u009d Kennedy wove this concept of protected dignity through a series of cases, from gay rights to prison lawsuits, including his historic 2003 Lawrence decision striking down the criminalization of homosexuality. These rulings on liberty peaked with Obergefell, which he described as an effort of the petitioners to secure \u201cequal dignity in the eyes of the law.\u201d\u009d He used the word \u201cdignity\u201d\u009d almost a dozen times in his decision and laid down a jurisprudential haymaker: \u201cThe Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.\u201d\u009d<\/p>\n