Rao Essay Appears in Virginia Law Review Online Magazine
An essay by Professor Neomi Rao examines the unusual right to recognition in United States v. Windsor and explains how such dignity rights have a problematic relationship to individual rights and to the structural protections of federalism.
"In Windsor, the dignity of recognition is not an individual right and not about the federal balance and therefore it creates a tension with existing state laws that prohibit same-sex marriage," writes Rao. "Windsor could have been decided along federalism lines, recognizing the limited nature of federal power with respect to definitions on marriage. This would have left unprejudiced the political development of the issue in the fifty states."
The Trouble With Dignity And Rights Of Recognition, Virginia Law Review In Brief, August 8, 2013. By Neomi Rao.
"In Windsor, however, the dignitary harm is the harm—the harm of not being properly recognized and of lacking the proper federal status. Although this type of right to recognition is novel in the American constitutional tradition, it has robust roots in the jurisprudence of the European Court of Human Rights, which frequently upholds claims for recognition and benefits. Dignity as recognition reflects a strongly communitarian understanding of the individual. In this view, a person’s dignity depends only in part on rights and must include recognition and validation by the community and state.25
"In the European Court as well as in the jurisprudence of some European constitutional courts, dignity is primarily linked to claims for recognition—rights often associated with protection for personality.26 These are very different types of claims than those usually cognizable in American constitutional law. Recognition by our communities and even our political institutions may be an important human need, but it has not previously been treated as a constitutional right."