Dignity and Social Meaning: \u3ci\u3eObergefell\u3c/i\u3e, \u3ci\u3eWindsor\u3c/i\u3e, and \u3ci\u3eLawrence\u3c/i\u3e as Constitutional Dialogue

The U.S. 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. Beyond their tangible consequences, 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 actively participates. In doing so, it draws on 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 should be understood as majoritarian, not as 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 cultural and public attitudes. As culture and attitudes evolved, so did the social meaning of anti-gay laws. Sodomy laws and marriage restrictions, once accepted as presumptively constitutional protections of tradition and public morality, increasingly came to be understood as impositions of stigma and humiliation—the kind of expressive harms that the U.S. Constitution forbids

Interstate Recognition of Parent-Child Relationships: The Limits of the State Interests Paradigm and the Role of Due Process

How secure are the legal relationships between gay or lesbian parents and their children when those families move from one state to another? What happens when a non-biological parent who has been legally recognized as a full parent under the laws of one state moves with her same-sex spouse and their child to a different state where public policy is unfriendly toward same-sex relationships? Or what happens when a same-sex couple adopts a child, thus becoming its full legal parents, then seeks recognition of their parental status in a different state? In this Article I argue that the traditional doctrines of conflict of laws, as well as constitutional and statutory full faith and credit -- which I refer to collectively as the state interests paradigm -- will not adequately protect the rights of such non-biological parents, and thus the integrity of gay/lesbian families, but that well-established constitutional due process principles preclude a state from refusing to recognize a legal parent-child relationship that was established earlier in another state. Because the state interests paradigm does not account in any formal way for the individual rights and interests of parents or children, it typically will be too deferential to anti-gay state public policy arguments that may be invoked to deny recognition of a parent-child relationship and thus effectively terminate parental rights without due process. It is well established that the state may not intrude without good cause into established relationships within the nuclear family. Recognizing this principle in litigation over interstate recognition of parental rights would provide a necessary corrective to the state interests paradigm and a check against state interference with extant family relationships

Foreword

One hundred years ago this year, a group of prominent American professors came together to form the American Association of University Professors (AAUP). As a crucial part of this endeavor, they drafted a manifesto on academic freedom and tenure that set forth what must have been viewed, at the time, as revolutionary propositions about the role of the scholar vis-à-vis the university and the role of the scholar and the university together vis-à-vis the larger societ

Dignity and Social Meaning: Obergefell, Windsor, and Lawrence as Constitutional Dialogue

The U.S. 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. Beyond their tangible consequences, 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 actively participates. In doing so, it draws on 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 should be understood as majoritarian, not as 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 cultural and public attitudes. As culture and attitudes evolved, so did the social meaning of anti-gay laws. Sodomy laws and marriage restrictions, once accepted as presumptively constitutional protections of tradition and public morality, increasingly came to be understood as impositions of stigma and humiliation—the kind of expressive harms that the U.S. Constitution forbids

Religious Arguments, Religious Purposes, and the Gay and Lesbian Rights Cases

The Supreme Court's four major gay and lesbian rights decisions-Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges-were not cases about the First Amendment or religion. But collectively, often implicitly and sometimes explicitly, these cases teach us something about the role which religion should play in questions of constitutional equality and liberty

The Cultural Politics of Dan Quayle and Mike Pence

This essay was part of an Indiana Law Review symposium on the five U.S. vice presidents who have hailed from Indiana. The Gallup polling organization classifies Indiana as a “pink” state, rather than a “red” state, meaning it leans Republican but is not solidly in the GOP column. Yet, if an image of Indiana persists in many people’s minds as a bastion of social conservatism and tradition, that image likely has been shaped in part by the two most recent vice presidents the Hoosier state has sent to Washington: Dan Quayle and Mike Pence. In selecting their running mates, major party presidential candidates typically look for someone with strengths or experience that the person at the top of the ticket lacks. Both Quayle and Pence were chosen, to a large degree, because they were seen as effective and important ambassadors to social and religious conservatives — a group that was not the natural constituency of their senior running mates, George H.W. Bush and Donald Trump, respectively. Barring some event that elevates Pence to the presidency, this is how both Quayle and Pence are likely to be remembered by history: As great favorites, even paragons, of the religious right, and as loyal political subalterns whose job was to carry the torch for “family values,” opposition to abortion and LGBT rights, and a greater role for religion in American public life