LGBTQ Rights Rollbacks and the Death of Dignity

Abstract

Justice Anthony Kennedy is widely regarded as the author of the gay rights legal movement–establishing the Court’s attempt to codify gay and lesbian dignity into a constitutional rights-based logic. From Romer v. Evans to Obergefell v. Hodges, Kennedy’s was often the only federal voice that mattered in the fight for gay and lesbian rights. When he retired, gay rights advocates worried about the stability of his distinctive gay rights doctrinal legacy. Trans rights advocates wondered whether the Kennedy precedent would apply to transgender legal claims. And anti-LGBTQ advocates hoped that Kennedy’s retirement could usher in an era of LGBTQ-rights retraction. It’s been 10 years since Obergefell and 8 since Kennedy’s retirement and conservatives have not only stemmed the flow of Kennedy’s doctrinal legacy but have encouraged the Court to entertain some significant setbacks. In this article we revisit Kennedy’s legacy, identifying the contours of his contributions, the opportunity costs of his retirement and the Court’s emerging LGBTQ rights retractions.