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The Respectable Dignity of Obergefell v. Hodges
California Law Review Circuit (2015)
  • Yuvraj Joshi, Yale Law School
Abstract

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative began to change. Dignity veered away from respect for the freedom to make personal and intimate choices without interference. Tracing the usage of dignity in these cases reveals that the “dignity” of Obergefell is not the “dignity” of Casey.

This Essay demonstrates how Obergefell shifts dignity’s focus from respect for the freedom to choose toward the respectability of choices and choice makers. Obergefell’s dignity is respectable in three ways. It depends on same-sex couples (1) choosing the heterosexual norm of marriage; (2) being and showing themselves to be worthy of marriage; and (3) being socially acceptable and accepted. As importantly, I show that Obergefell’s reasoning inflicts its own dignitary harms. It affirms the dignity of married relationships, while dismissing the dignitary and material harms suffered by unmarried families. It demands that same-sex couples demonstrate the same love and commitment that are taken for granted in the case of heterosexual couples. And, it implies that legal protection of dignity depends on the prior social acceptance of gay persons and relationships. Put together, Obergefell disregards the idea that different forms of loving and commitment might be entitled to equal dignity and respect.

Keywords
  • Dignity,
  • Respectability,
  • Same-sex marriage,
  • Equal Protection,
  • Obergefell v. Hodges,
  • Planned Parenthood v. Casey,
  • Lawrence v. Texas,
  • US v. Windsor,
  • Justice Kennedy
Publication Date
November, 2015
Citation Information
Yuvraj Joshi. "The Respectable Dignity of Obergefell v. Hodges" California Law Review Circuit Vol. 6 (2015)
Available at: http://works.bepress.com/yuvrajjoshi/5/