Obergefell and the Dignitary Harm of Identity-Based Military Service Exclusion

Author(s): Merriam, Eric | Abstract: In Obergefell v. Hodges, the Supreme Court recognized the right of same-sex couples to be married.[1] In doing so, the Court remedied the demeaning exclusion of a historically disadvantaged minority group from a nationally cherished institution, noting the stigma and injury the exclusion caused. The sweeping language of the majority opinion in Obergefell and its focus on exclusionary harm suggested a new era of inclusion for lesbian, gay, bisexual, and transgender Americans.[2] This Article argues that the exclusion of transgender persons from military service constitutes the type of harm Obergefell and the Equal Protection Clause prohibit.This Article first provides background on the pre-Obergefell landscape for constitutional challenges to military service exclusion. Second, the Article assesses Obergefell’s jurisprudential expansions of substantive due process and equal protection doctrines through its recognition of the exclusionary harm done to gay people by excluding them from the institution of marriage. The Article uses the Court’s exclusionary harm analysis to assess the exclusion of a historically disadvantaged minority group from another nationally cherished institution: the Trump Administration’s ban on transgender persons serving in the military. Third, the Article argues that Obergefell advanced a new equal protection doctrine: the government may not demean a group by excluding it from an important positive right resulting in dignitary harm. The Article concludes that the transgender military ban constitutes the type of dignitary harm that Obergefell and the Equal Protection Clause prohibit. [1]. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). [2]. While the opinion did not explicitly address transgender rights, the Court wrote, “[t]he Constitution promises liberty to all within its reach, [including the right] to define and express their identity.” Id. at 2593. Some commentators observed this extended protections to transgender people. See, e.g., Scott Skinner-Thompson, How Obergefell Could Help Transgender Rights, Slate (June 26, 2015), https://slate.com/human-interest/2015/06/obergefell-and-trans-rights-the-supreme-courts-endorsement-of-identity-expression-could-help-trans-activism.html [https://perma.cc/ZF3W-PVWP]; J. Courtney Sullivan, What Marriage Equality Means for Transgender Rights, N.Y. Times (July 16, 2015), https://www.nytimes.com/2015/07/16/opinion/what-marriage-equality-means-for-transgender-rights.html [https://perma.cc/23M3-T2NV].