There is no doubt that Justice Kennedy accurately and movingly describes the indignity and stigma that bans on same sex marriage impose on the right of LGBT citizens to define their own identities and to claim the benefits of equal citizenship. But constitutionalizing that injury with broad abstractions like dignity may lead to results in the future that liberals come to regret. Already, the European Court of Justice’s recognition of a sweeping “Right to be Forgotten” on the Internet has lead to the most dramatic clash between European traditions of protecting dignity and American traditions of protecting free speech in a generation.
And down the line, the right to dignity—now celebrated by liberals for what it means to gay rights—could ultimately produce other decisions in unrelated cases that they would not be so quick to celebrate. In the McDonald case, striking down gun possession laws under the Second Amendment, Justice Scalia recognized a dignitary interest attached to the right to bear arms. “[T]he conceptual core of the liberty clause … pertains to … [an individual’s] [s]elf-determination, … dignity [or] respect,” he wrote.
The word dignity eludes narrow definition, or for that matter, any generally agreed upon definition. The Court itself has not provided a clear definition of dignity. One scholar, William A. Parent, declares, “[D]ignity is to possess the right not to be arbitrarily and therefore unjustly disparaged as a person.” In another article on “the Jurisprudence of Dignity,” Leslie Meltzer Henry writes that there is no single definition, but that dignity includes various conceptions including institutional status, equality, liberty, individual integrity, and collective virtue. She concludes, “dignity’s conceptions and functions are dynamic and context-driven.”