Harvard Journal of Law & Gender
The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 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 had 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 United States Supreme Court famously declared in Bowers v. Hardwick that there was no right to engage in homosexual sodomy. In the second, the “Equal Homosexual Class Phase,” the Court in Romer v. Evans 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 “Free Intimate Bond Phase,” the Court shifted its focus in Lawrence v. Texas to an enduring intimate bond involving private sexual acts protected from government intrusion. In the fourth and current phase, the “Dignified Married Couple Phase,” the Court in United States v. Windsor 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. Although Windsor is an important civil rights victory, the Court’s opinion ushers in important consequences for the legal homosexual. In the process of dignifying the same-sex couple, the Court erased the terms “homosexual” and “lesbian,” cast marriage as an elevated moral state, and, most importantly, promoted a concept that the Article calls a “weak dignity.” Windsor’s dignity is weak in three ways. First, human dignity was not understood by the Court as inherent in all humans. The Court instead assumed that the State confers dignity upon individuals. Second, Windsor’s concept of dignity is much narrower than theories promoted by contemporary moral and legal philosophers. Third, Windsor adopted 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 can employ the concept of equal dignity while moving beyond Windsor’s weaknesses.