Dignity and Social Meaning: Obergefell, Windsor, and Lawrence as Constitutional Dialogue
62 Pages Posted: 5 Apr 2018
Date Written: March 31, 2018
The Supreme Court’s three most important gay and lesbian rights decisions – Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas – are united by the principle that gays and lesbians are entitled to dignity. The common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm.
This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court participates and to which it responds. In doing so, it unites the scholarly literatures on dialogic judicial review and the role of social meaning in constitutional law. It illuminates how the Supreme Court interprets democratic preferences and constructs social meaning in order to apply fundamental Constitutional norms to emerging legal claims.
Contrary to the speculations of some commentators, “dignity” in these cases did not operate as some new form of constitutional right. Rather, the identification and protection of dignitary interests served as the unifying principle for a process, unfolding in three cases over thirteen years, through which constitutional law was brought into alignment with evolving public attitudes and policy preferences. The dignity decisions were majoritarian, not acts of judicial will. They were broadly accepted, because the Court’s insights about the status of gays and lesbians in American society were consistent with dramatic and long-term changes in culture and public attitudes. As culture and attitudes evolved, so did the social meaning of anti-gay governmental laws. Sodomy laws and marriage restrictions, once accepted as presumptively constitutional protections of tradition and public morality, increasingly came be understood as impositions of stigma and humiliation -- the kind of expressive harms that the Constitution forbids.
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