The Respectable Dignity of Obergefell v. Hodges
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 paved the path for United States v. Windsor and later Obergefell. But, 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. As importantly, I show that Obergefell’s reasoning inflicts its own dignitary harms. Put together, Obergefell disregards the idea that different forms of loving and commitment might be entitled to equal dignity and respect.