Subverting Same-Sex Couples’ Equal Dignity

The Perpetuation of a System of Double Binds

Abstract

Justice Anthony Kennedy has ascertained a strand of jurisprudence articulated around the concept of “equal dignity”, enshrined in the equal protection clause and the promise of “liberty” guaranteed by the Fourteenth Amendment. However, in their dissents, originalist justices have framed marriage equality as a way to shift the burden of discrimination onto religious conservatives who claim their right not to recognize LGBTQ+ citizens by invoking religious freedom (First Amendment) and direct democracy.

Although it is early to determine whether the court will be poised to overturn key precedents, I would like to argue that the recent flux of religious domination has enabled Donald Trump to restore the moral uplift of the federal judiciary, which could potentially undermine Kennedy’s legacy. Over the course of his presidency, Donald Trump has equipped himself with all the tools to hold the leverage he needs to launch a moral crusade against women’s reproductive rights or transgender Americans by denying them equal protection against “sex” discrimination and gender-affirming care under the 1964 Civil Rights Act.

By referring to Lawrence (2003), in dissent, I aim to explore the interpretive foundations of Justice Scalia’s opinion, which has paved the way for a possible path to accommodate Americans’ “sincerely held religious beliefs”. Similarly, in Masterpiece Cakeshop (2018), Kennedy’s failed attempt to draw a fine line between sexual orientation discrimination and religious freedom on narrow grounds has empowered conservative Christians to claim the right to ignore the symbolic value of same-sex marriages.