Race, Dignity, and the Right to Marry

Abstract

The majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of "equal dignity" and belonging long denied. This Essay asks whether marriage can do the same for African Americans. Justice Kennedy’s majority opinion -- in casting marriage as an "enduring bond" that secures critical "freedoms" irrespective of sexual orientation, gender, or race -- suggests that this question should be answered in the affirmative. But Professor Lenhardt expresses deep skepticism about this claim where African Americans, the most unmarried group of any in the United States today, are concerned. She argues that, even as it extends important rights to LGBT Americans, Obergefell crafts a doctrinally and normatively whitewashed version of dignity and marriage inconsistent with the actual experiences of African Americans and other minority groups with that institution across history. Given this and recent events highlighting the racial disadvantage that Blacks face in areas as varied as policing and family policy, Lenhardt concludes that marriage, without more, will never secure black dignity. Instead of looking for black dignity in marriage exclusively, she thus urges a focus on nonmarriage and the possibilities for supporting nonmarital black families where they stand. Professor Lenhardt also advocates greater attention in law, policy, and even advocacy efforts provided by groups such as "Black Lives Matter" to the ways in which family structures like marriage shape race and inequality in ways that deny dignity and impede the functioning of black families.