'Conferring Dignity: The Metamorphosis of the Legal Homosexual' by Noa Ben-Asher in (2014) 37(2)
Harvard Journal of Law and Gender argues
The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor (2013), which struck down Article 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual has become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, “the Homosexual Sodomite Phase,” the Court famously declared in Bowers v. Hardwick (1986) that there is no right to engage in homosexual sodomy. In the second, “the Equal Rights Phase,” the Court in Romer v. Evans (1996) cast the legal homosexual as a member of a “class of citizens” whose exclusion from anti-discrimination protections the Constitution could not tolerate. In the third, “the Liberty Phase,” the Court shifted its focus in Lawrence v. Texas (2003) to an enduring intimate bond involving private sexual acts protected from government intrusion. In the fourth and current phase, the “Equal Dignity Phase,” the Court in United States v. Windsor (2013) validated the decision of several states to “confer [upon homosexuals] a dignity and status of immense import.” ;
The heart of the Article is an analysis of this final phase. Though Windsor is an important civil rights victory, the Court’s opinion ushers in new costs for the legal homosexual. In the process of dignifying the same-sex couple, the Court erases the terms homosexual and lesbian, casts marriage as an elevated moral state, and, most importantly, promotes a concept that the Article calls a weak dignity. Windsor’s dignity is weak in three ways. First, human dignity is not understood by the Court as inherent in all humans. The Court instead assumes that the state confers dignity upon individuals. Second, Windsor explicitly assumes that marriage enhances the moral status and integrity of those who enter it. Third, Windsor adopts a rhetoric of injury and pity that presents all those in same-sex relationships and their children as the wounded and humiliated victims of DOMA. The Article concludes with suggestions on how advocates and courts applying Windsor to the next wave of marriage litigation can employ the concept of equal dignity while moving beyond its weaknesses.
