In June of 2015, the U.S. Supreme Court decided Obergefell v. Hodges. To say that decision represents a seismic shift in law as it pertains to homosexuals and homosexuality is an understatement. In Obergefell, Justice Kennedy crafted a majority decision that granted to gay and lesbian couples a fundamental right to marry, and stated unequivocally that laws which prohibit marriage or recognition of out-of-state marriages violate the dignity and humanity of same sex couples and their families. Obergefell is closely related to two other decisions authored by Justice Kennedy, Lawrence v. Texas and United States v. Windsor. In this trifecta of cases, Justice Kennedy authored three decisions that recognized the humanity and legal personage of homosexuals, finally granting a right to privacy (Lawrence), equality in allocation of federal rights (Windsor), and the fundamental right to marry (Obergefell). Without Lawrence, neither Windsor nor Obergefell would have turned out as they did. Justice Scalia was correct when he opined that the confluence of Lawrence and Windsor would open the door to marriage equality for the lesbian and gay community.

In all three opinions written by Justice Kennedy, he focuses on the idea that constitutional protections in the Fourteenth Amendment are grounded in conceptions of dignity of the individual and of the collective. The thread that ties or links liberty and equality is the dignity and self-worth of the individual. Dignity is not merely a moral canon but a legal principle embedded in conceptions of liberty and equality. Thus, legal personage is a reflection of this canon and principle.

IS SEXUAL AUTONOMY A FEMINIST SILVER BULLET?

In the re-write of the Lawrence opinion, Professor Ruthann Robson, writing as Justice Robson, rejects the theoretical construct deployed by Justice Kennedy. She raises an important concern; how do we define or unpack “dignity”? Simply put, she asks what is the meaning of dignity and does dignity provide the foundation for liberty and equality embedded in the Fourteenth Amendment. However, rather than interrogate the relationship between liberty and equality and conceptions of human dignity, Robson employs a different theory, that of sexual autonomy.

Sexual autonomy qua sexual autonomy as a philosophical concept or legal right has been seriously contested by feminist philosophers. Diane Teitjens Meyers and Marilyn Friedman examine conceptions of autonomy espoused or posited by philosophers such as John Rawls and Immanuel Kant.