Jeremiah A. Ho (University of Massachusetts School of Law) has posted Find out What it Means to Me: The Politics of Respect and Dignity in Sexual Orientation Anti-Discrimination (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where he approached dignity concepts as an inherent respect for sexual identity and private choices, to his definition of dignity in the marriage cases, where he viewed dignity in terms of respectability — as something not inherent but earned by conforming to the norms of a dominant culture.
To be sure, marriage equality significantly furthered the rights of same-sex couples. Yet, in order to make larger advances for sexual orientation anti-discrimination protections — such as explicit protections under Title VII—the framing of gay rights must return to the politics of respect. This article proposes ways to undo the respectability politics of Obergefell so that future movements toward sexual orientation anti-discrimination can be accomplished by latching onto the doctrinal successes of the marriage equality movement but detaching from connotations of respectability.