Tribe on Obergefell: The Double Helix of Equal Dignity

November 16th, 2015

One of the more frustrating aspects of teaching Obergefell is how Justice Kennedy made an absolute hash of the Court’s own due process and equal protection jurisprudence, explaining that the rights somehow work together in tandem. Larry Tribe does his utmost to help make sense of Kennedy’s opinion in the Harvard Law Review.

The core around which Justice Kennedy wound the double helix of Equal Protection and Due Process, and the rubric under which fundamental rights should be evaluated going forward, is what I will call the doctrine of equal dignity.

What a beautiful image–the “Double Helix” ¬†of “Equal Dignity.” The clauses of the Constitution aren’t as important as how they could work in tandem to promote another doctrine that is not in the Constitution–“dignity.”