The Trouble with Dignity and Rights of Recognition

Abstract

In United States v. Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act violated the Fifth Amendment. This Essay examines the unusual right to recognition that forms the basis of the Court’s decision and explains how such dignity rights have a problematic relationship to individual rights and to the structural protections of federalism. A right to recognition, standing alone, has never been part of our constitutional jurisprudence. To the extent that dignitary themes arose in previous cases, they were incidental to the finding of individual rights. I argue that there is good reason why recognition has not been afforded constitutional protection. Claims for recognition are only derivative of individual rights and cannot apply universally. Moreover, the dignity of recognition, because not an individual right, creates an unresolved tension with existing state laws that prohibit same‐sex marriage — a tension between the dignity of recognition and the dignity of state sovereignty.

Keywords: Anthony Kennedy, Board of Education, Brown, comparative law, DOMA, due process, equal, equality, European Court of Human Rights, exclusion, harm, Holder, homosexual, Lawrence v. Texas, liberty, Loving, political, Shelby County, Virginia, Voting Rights Act

JEL Classification: H70, H77, J11, J12, J70, J71, J78