Equal Dignity - Heeding Its Call

Harvard Law Review, February 2019 | Go to article overview

Equal Dignity - Heeding Its Call


Given Justice Kennedy's role as the swing vote on the Supreme Court, his departure was undoubtedly momentous. And as happens with the departure of important figures, commentators were eager to define his legacy. (1) Through the lens of politics, this was no easy task. (2) Yet, despite Justice Kennedy's seeming contradictions, one constant emerged: a robust belief in the Court's power to enforce what he believes are the promises of the Constitution.

One of those promises is that of equal dignity. (3) The precise beginnings of the concept of dignity in American jurisprudence are arguable. Invocations of equal dignity sounded the clearest in Justice Kennedy's later marriage decisions of United States v. Windsor (4) and Obergefell v. Hodges. (5) However, discussion of dignity had already been apparent in his earlier individual rights jurisprudence, namely Planned Parenthood of Southeastern Pennsylvania v. Casey (6) and Lawrence v. Texas. (7) But no matter the start, the end was inarguable. Before leaving the Court, Justice Kennedy had developed a strand of jurisprudence committed to equal dignity as a central promise of the Fourteenth Amendment.

Given Justice Kennedy's outsized role in shaping a modern concept of equal dignity, the future direction of this concept now seems unclear. However, precedents do not die with a Justice's tenure, and equal dignity should be taken seriously in a post-Kennedy era. Equal dignity has been a driver in at least four defining Fourteenth Amendment cases over the past two decades. Beyond that, the values underlying equal dignity, specifically its recognition of an intersection between substantive due process and equal protection and its emphasis on antisubordination, have deep roots in American constitutional doctrine. (8) And finally, even if one still chooses to conceptualize equal dignity as a novel concept whose precise contours have yet to be marked, (9) this fact alone cannot justify dismissal. All doctrines start somewhere, and almost all are refined through the iterative process of subsequent application. Equal dignity deserves the same chance.

To that end, this Note seeks to do three things. First, Part I distills the principles underlying equal dignity, with the aim of clarifying its contours. Then, using this sketch, Part II discusses the specific doctrinal implications that equal dignity should have on our substantive due process and equal protection inquiries. Finally, Part III assesses whether lower courts have thus far properly heeded equal dignity's call. Ending in a hopeful register, this Note argues that equal dignity should have particular salience to the growing judicial recognition of the rights of transgender individuals.

I. What Is Equal Dignity?

Critics of equal dignity typically argue that it is as amorphous an idea as any, a Rorschach test for anyone seeking vindication under our Constitution. (10) These skeptics point to two things. First, that the idea of dignity is invoked across a tremendous variety of constitutional inquiries, from state dignity under the Tenth and Eleventh Amendments, (11) to individual dignity under the Second, Sixth, and Eighth Amendments. (12) Second, that even in the context of the Fourteenth Amendment, equal dignity is expressed in language seemingly foreign to the accepted frameworks for either substantive due process or equal protection inquiries. (13)

In response to the first observation, it must be said that the mere mention of the word "dignity" ought not to equate to an invocation of a specific doctrine. Because of their capacious yet fundamental nature, words like "liberty" or "equality" are likely mentioned in opinions beyond those concerning substantive due process or equal protection. Yet real doctrine undoubtedly exists for each of those inquiries. Similarly, the way forward for equal dignity is to figure out what exactly it means in a given context. As this Note argues, equal dignity has developed a special meaning under the due process and equal protection guarantees of the Fourteenth Amendment. …

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