Conjuring 'Equal Dignity': Mapping the Constitutional Dialogue to and from Same-Sex Marriage

Abstract

What a long, strange trip it’s been from Bowers v. Hardwick to Obergefell v. Hodges. Less than thirty years after the Supreme Court notoriously upheld the criminalization of same-sex sexuality, the Court now has declared that laws may not exclude gays and lesbians from marriage. How did the majority in Obergefell conjure this “equal dignity” for same-sex couples that they insist the Constitution requires? This essay analyzes the Court's approach by closely examining the majority and dissenting opinions and then providing a synthesis of trends reflected, rationales rejected, issues ignored, and opportunities opened.

First, as to trends reflected, the majority tracked the overwhelming consensus emerging from the lengthy societal and judicial dialogue and from contemporary scholarly research regarding historical and current societal practices.

Second, as to rationales rejected, the majority squarely repudiated the major arguments that those opposing same-sex marriage had vigorously and persistently asserted, including that constitutional protection of liberty must be limited to traditional marriage, that limiting marriage to opposite-sex couples furthers the goal of encouraging “responsible procreation,” that religious beliefs may serve as justification for laws that unequally infringe fundamental liberties, and that courts should exercise caution by leaving the question to the political process.

Third, as to issues ignored, the majority simply skirted the more technical legal arguments, including the doctrinal issues regarding the appropriate level of scrutiny and degree to which discrimination based on sexual orientation is “suspect,” the question of whether the marriage bans were based on animus or invidious intent, the appeal to federalism to let each state decide, and the argument that preventing same-sex couples from marrying discriminates based on sex or gender.

Finally, the essay explores the opportunities opened by Obergefell. What the Court did and did not decide creates enormous potential for further jurisprudential elaboration. In particular, the majority’s analysis invites further development within family law regarding the Court’s refusal to limit the constitutional protection of liberty to the traditional marital form and also within sexuality law regarding the Court’s powerful reaffirmation of equal constitutional protection for gays and lesbians regardless of level of scrutiny. Perhaps most importantly, the extent to which equality drove much of the Court’s liberty analysis reveals its recognition of the mutually constitutive connection between liberty and equality (which remains under-theorized). Specifically, Obergefell makes major jurisprudential contributions by freeing liberty from the discriminatory constraints of history and by insisting that the Constitution requires equal respect for personal choice regarding fundamental liberties. In a constitutional sense, this equal entitlement to protection for fundamental personal liberties may be what comprises “dignity.”

Keywords: Same-sex marriage, Obergefell, Liberty, Substantive Due Process, Equality, Equal Protection, Animus, Gay Rights, Responsible Procreation, Constitutional Interpretation, Mutually Constitutive, Co-Constitutive