With dignity and justice for all: The jurisprudence of equal dignity and the partial 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, 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 two key precedents, Lawrence v. Texas and United States v. Windsor. This article documents the development of the jurisprudence of “equal dignity” and seeks to ascertain its role and significance in the Court’s fundamental rights jurisprudence. 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. In the jurisprudence of equal dignity, dignity does the work of tradition without the requirement of time. However, it cannot be said that Obergefell announced a new “doctrine of equal dignity.” Human dignity in its liberty- and equality-regarding aspects became 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.