Yuvraj Joshi, the Peter and Patricia Gruber Fellow in Global Justice at Yale Law School, has posted to SSRN his essay, The Respectable Dignity of Obergefell v. Hodges, forthcoming in the California Law Review’s Circuit (online publication). Here is an 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. The “dignity” of Casey 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, as Lawrence paved the path for US v. Windsor and later Obergefell, the narrative began to change. 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 towards 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 for 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.
A draft of the essay is available here.
You can follow Mr. Joshi on Twitter @yuvrajjoshi