Connor Ewing

The United States Supreme Court’s 2015 decision in Obergefell v. Hodges, establishing a constitutional right for same-sex couples to marry, was grounded in the “equal dignity” of gay and straight couples. This decision, in turn, built on and extended a jurisprudence developed principally in the earlier cases of Lawrence v. Texas (2003) and United States v. Windsor (2013). While human dignity is a central value in all three of these cases, in each of them the Court advanced a distinct conception of dignity: dignity as autonomy (Lawrence), variable dignity (Windsor), and democratic dignity (Obergefell). This chapter demonstrates how the pivotal move in this jurisprudential trajectory—the development of Windsor’s conception of variable dignity—was decisively shaped by the structure of the American regime. The federal structure, and the specific position of the Supreme Court therein, occasioned the development of an understanding of dignity rooted in the power of subnational governments to augment the dignity of their citizens. Even as variable dignity facilitated the expansion and ultimate constitutionalization of same-sex marriage rights, this variable conception was starkly different from how human dignity had traditionally been defined in American rights jurisprudence. Engaging human dignity at a threshold of American constitutional law, this chapter reveals the role of political structure in the evolution of dignity’s meaning and significance.