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Abstract

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked dignity nine times—to no one's surprise. References in Obergefell to dignity are in important respects the culmination of Justice Kennedy's elevation of the concept, dating back to the Supreme Court's 1992 decision in Planned Parenthood v. Casey. In Casey, dignity expressed respect for a woman's freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which paved the path for United States v. Windsor and later Obergefell. But, the dignity of Obergefell is not the dignity of Casey. This Essay demonstrates how Obergefell shifts dignity's focus from respect for the freedom to choose toward the respectability of choices and choice makers. As importantly, I show that Obergefell's reasoning inflicts its own dignitary harms. Put together, Obergefell disregards the idea that different forms of loving and commitment might be entitled to equal dignity and respect.

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