With Dignity and Justice for All? Dignity Jurisprudence from Bowers to Windsor and the Convergence of Liberty and Equality in American Constitutional Law

Abstract

In its decision in Obergefell v. Hodges, finding a constitutional right for same-sex couples to be married and have their marriages recognized by the states, the Supreme Court held that the Constitution granted the plaintiffs what they sought: “equal dignity in the eyes of the law.” For a concept found nowhere in the text of the Constitution, dignity has received considerable attention of late in American constitutional jurisprudence. Especially relevant to the Obergefell decision, dignity played an important role in many of the Court’s prior decisions, most importantly Lawrence v. Texas and United States v. Windsor. What, then, are we to make of the growing body of constitutional jurisprudence drawing on human dignity? What is the role and significance of “equal dignity” in American constitutional law?This Essay seeks to answer these questions, proceeding in three steps. In Part I, I provide a narrative of dignity in the Court’s gay rights jurisprudence, paying particular attention to the changes in usage from Bowers v. Hardwick and Lawrence v. Texas to United States v. Windsor, and finally to Obergefell v. Hodges. In Part II, I introduce and critically analyze two prominent interpretations of the Court’s dignity jurisprudence. Of particular interest here are Laurence Tribe’s arguments concerning the “legal double helix” of liberty and equality, and Kenji Yoshino’s assessments of Due Process and Equal Protection jurisprudence. Though both of these treatments pick up on important jurisprudential developments, neither does justice either to the complexity of equal dignity as it has been elaborated across the relevant cases or to the consequences of its developmental trajectory. Only by putting dignity at the center of the analysis and taking account of the underlying dynamics of the cases can we see clearly the meaning and significance of the jurisprudence of equal dignity.Finally, I offer in Part III an alternative interpretation of the role and significance the Court’s equal dignity jurisprudence. Drawing on Tribe’s double-helix argument, I argue that Obergefell signals a partial convergence of liberty and equality in American constitutional law. This convergence is both cause and effect of the increased salience of dignity and its emergence as a constitutional touchstone. Contra Tribe, though, I emphasize the incompleteness of this convergence. The convergence of liberty and equality around dignity is only a partial convergence because the Court explicitly articulated the independence of the two constitutional values. It cannot be said, as Tribe argues, that the Court in Obergefell announced a new “doctrine of equal dignity.” And unlike Yoshino, my argument puts dignity at the center of the analysis rather than the periphery. This, I argue, is a necessary supplement to his account of the movement, signaled by the Obergefell decision, away from a rigid requirement of tradition in the Court’s fundamental rights jurisprudence. In the jurisprudence of equal dignity, dignity does the work of tradition without the requirement of time. Human dignity in its liberty- and equality-regarding aspects becomes a sign and marker of practices that (might) warrant constitutional protection, even as it is the anterior value on which constitutional liberty and equality are grounded. The Essay concludes with a brief reflection on the significance of this partial convergence for the future of American rights jurisprudence.