Iván Espinoza-Madrigal

Ten years ago, in 2015, the U.S. Supreme Court decided Obergefell v. Hodges, the case recognizing that "same-sex couples may exercise the right to marry."[1] That same year, I married my husband.

Over the past decade, I've experienced firsthand the bundle of rights that flow from marriage: the certainty of planning for the future, knowing that my husband and I can make decisions — from healthcare to retirement — without fear or hesitation. The Obergefell ruling validated my marriage and ensured my union was recognized with the same dignity as others.[2]

In the Obergefell case, the petitioners "ask[ed] for equal dignity in the eyes of the law," and the Supreme Court was unequivocal: "The [U.S.] Constitution grants them that right."[3] At the time, I believed the right to equal dignity[4] espoused in the Obergefell ruling would have ripple effects — that the Supreme Court's recognition of dignity would reverberate beyond wedding bells to other settings.

But the past decade has shown otherwise, as courts have recognized dignity selectively: robustly in some cases, while sidelining it in others.[5] To address this selective application and ensure equal treatment under the law, lawyers and judges should deliberately and intentionally work toward adopting a robust dignity framework.

While the Obergefell ruling affirmed the centrality of protecting "individual dignity and autonomy,"[6] courts have applied this inconsistently beyond marriage.[7] Courts have acknowledged "[t]here is no doubt that dignitary harm is cognizable," as Justice Amy Coney Barrett, then sitting in the U.S. Court of Appeals for the Seventh Circuit, concluded in 2019 in Carello v. Aurora Policemen Credit Union, underscoring that "stigmatic injury" is one of the most serious consequences of discrimination.[8]

That same year, in Brintley v. Aeroquip Credit Union, the U.S. Court of Appeals for the Sixth Circuit found that dignitary harm "might give rise to standing in some settings."[9] Similarly, in 2019, the U.S. Court of Appeals for the Fourth Circuit found that "dignitary harms are readily inferred by allegations of unequal treatment" in Griffin v. Department of Labor Federal Credit Union.[10]

These and other cases have laid a strong jurisprudential foundation for relief,[11] but victories remain elusive. Examples abound: the cruel separation of children from their parents at the U.S.-Mexico border, relentless racial profiling and violence targeting Black people, and countless attacks on the transgender community — all these injustices degrade human dignity.

Even though dignity is an underlying issue in these and other contexts, lawyers often overlook it entirely, choosing not to raise it, particularly given courts' mixed reactions about its relevance. At best, courts have been inconsistent in recognizing dignity as an inherent right when invoked by marginalized communities facing government violence and systemic discrimination.[12]

Far too often, dignity considerations are subordinated to law enforcement, security or other interests. In racial profiling cases, for example, courts frequently weigh an individual's dignity against government justifications for intrusive searches and seizures, often deferring to law enforcement even when the harm is severe.

Across cases, penological and correctional interests — such as cavity searches for contraband or weapons — tend to justify and legitimize intrusions. While some courts may acknowledge the dignitary harm caused by invasive searches or unjust detentions, they tend to rule in the government's favor.[13] The specter of public safety or security concerns often shifts the balance away from individual dignity, effectively diluting and diminishing its significance.

Similar deference to government interests tends to exist in the immigration arena, where border security often outweighs severe harms to individual dignity.[14] Consider the family separation crisis at the U.S. border during the first Trump administration: Thousands of children were separated from their parents and detained. If dignity means anything, it must protect innocent children from such mistreatment.

Some courts have sidestepped dignity-based arguments because the harm and injury are purportedly too vague, generalized, or difficult to ascertain with measurable or quantifiable precision.[15] Yet the "dignitary wounds"[16] recognized by the Supreme Court in the Obergefell ruling are concrete, tangible and decisive. The hesitation to extend this same protection to other groups exposes hierarchies and gaps in how dignity is perceived and preserved. Economic interests help shape this hierarchy, with some courts prioritizing corporate prestige over individual dignity.[17]

In business cases, courts diligently provide judicial redress for diminished prestige — even noting a "protectable interest" in reputation, as the U.S. Court of Appeals for the First Circuit recognized in 1986 in Camel Hair and Cashmere Institute of America Inc. v. Associated Dry Goods Corp.[18] Yet cases involving individual dignity and autonomy — such as intrusive searches — rarely receive this level of scrutiny.

If federal courts grant relief to businesses for dignitary harm — protecting against the loss, depletion, or dissipation of reputation and prestige — why deny similar consideration to marginalized individuals whose dignity is just as, if not more, fundamental? Over the past decade, only the dignity of some has been deemed worthy of recognition and legal protection: same-sex marriage, yes; gender-affirming care, not necessarily.[19]

The consequences of this selective enforcement can be devastating, unleashing a cascade of indignities and negative outcomes. The same legal system that safeguarded the dignity of my marriage also allows my dignity to be chipped away in other fundamental areas of life. My right to live free from state violence and to move through public spaces without fear of racial profiling shouldn't ebb and flow. It shouldn't fluctuate contingent on competing interests, balancing tests or political expediency.

A decade after the Obergefell ruling, it's clear that dignity remains a privilege selectively granted rather than a universal right. This stratification must change, requiring a shift in American legal practice.

More lawyers and advocates should frame cases and articulate injustice through the lens of dignity. This core principle deserves to be more meaningfully developed. Models for assessing dignitary harm exist not only in tort and constitutional law, but also in business litigation, where courts have safeguarded reputation and prestige against loss, depletion or dissipation.[20]

Corporate "prestige" and "reputation" are arguably just as amorphous and intangible as individual dignity, yet courts rarely question their relevance or tangibility in business cases. The same presumption of inherent value — a recognition that there is something worth protecting — should apply in individual cases. This is the essence of the Obergefell ruling: Even stigmatized identities are entitled to dignity. Regardless of the framework, at a minimum, dignitary harm should be treated as a concrete injury in fact, conferring standing even in the absence of pecuniary or other injury.[21]

Judges, in turn, must be willing to engage with dignity beyond the typical confines of wedding rings and recognize its significance across cases, including those involving systemic discrimination, police violence and immigrant rights. A robust dignity framework should be used consistently, ensuring it is not a powerful legal argument in some cases and a mere afterthought in others. Courts should also be open to exploring the full panoply of appropriate remedies, from injunctive relief and monetary damages to restorative justice.

As we mark a decade since the Obergefell ruling, let's embrace dignity as a right and make its promise meaningful for all.

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Iván Espinoza-Madrigal is the executive director at Lawyers for Civil Rights.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Obergefell v. Hodges , 576 U.S. 644, 675 (2015) (holding that "the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty").

[2] Obergefell is one of the most recent and high-profile affirmations of the fundamental role of dignity, but the Supreme Court has long acknowledged its importance across issue areas. See, e.g., Allen v. Wright , 468 U.S. 737, 755 (1984) (noting "stigmatizing injury often caused by racial discrimination"); Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 250 (1964) (public accommodations laws "vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments") (emphasis added) (internal quotation marks and citation omitted); Cohen v. California , 403 U.S. 15, 24 (1971) (noting that the First Amendment protects "individual dignity and choice") (emphasis added); Winston v. Lee, 470 U.S. 753, 760 (1985) (holding that overriding function of the Fourth Amendment is to protect "personal privacy and dignity") (emphasis added) (internal quotation marks and citation omitted); Brown v. Plata , 563 U.S. 493, 510 (2011) ("Respect for [ ] dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.") (emphasis added). Even the privilege against self-incrimination and right to remain silent in encounters with law enforcement are rooted in "the respect a government—state or federal—must accord to the dignity and integrity of its citizens." Miranda v. Arizona , 384 U.S. 436, 460 (1966) (emphasis added). As these cases demonstrate, the Supreme Court has steadily emphasized that dignity is not merely an abstract ideal, but a tangible legal interest.

[3] Obergefell, 576 U.S. 644 at 681.   

[4] Id.    

[5] See Trump v. Hawaii , 585 U.S. 667, 698 (2018) (case concerning the federal government's ban on travelers from predominantly Muslim countries noting: "We need not decide whether the claimed dignitary interest establishes an adequate ground for standing."); see also Cummings v. Premier Rehab Keller, P.L.L.C. , 596 U.S. 212, 230 (2022) (holding that emotional distress damages cannot be recovered in private actions to enforce the antidiscrimination provisions of the Affordable Care Act (ACA) or the Rehabilitation Act, which prohibits disability discriminating). Despite these rulings, the Supreme Court has left the door open for dignity-related claims.        
[6] Obergefell, 576 U.S. at 663.

[7] A post-Obergefell review of federal court rulings demonstrates a patchwork approach across doctrinal areas with dignity considerations addressed favorably and adversely. Compare Betancourt-Colon v. Plaza Las Americas, Inc. , No. 23-CV-1338, 2024 WL 866271, at *3 n.1 (D.P.R. Feb. 29, 2024) (narrowly interpreting request for dignitary damages as "a claim for nominal damages" in disability-related case) with Shyr v. Trustees of Bos. Univ. , No. 16-CV-11124, 2017 WL 1014999, at *8 (D. Mass. Mar. 13, 2017) (allowing sexual harassment claims to proceed, in part, based on "offend[ing] a reasonable person's sense of personal dignity") and La Union del Pueblo Entero v. Abbott , No. 21-CV-0844, 2024 WL 4587260, at *10 (W.D. Tex. Oct. 18, 2024) (voting rights case noting "dignitary harms" such as "voting without any assistance, losing their privacy while voting with assistance from an election official, or foregoing the voting process altogether").    

[8] Carello v. Aurora Policemen Credit Union , 930 F.3d 830, 833-34 (7th Cir. 2019) (Barrett, J.) (disability-related discrimination case finding "[t]here is no doubt that dignitary harm is cognizable" but affirming denial of relief because allegations lacked "[c]oncreteness and particularization").

[9] Brintley v. Aeroquip Credit Union , 936 F.3d 489, 493-94 (6th Cir. 2019) (disability-related discrimination case noting that "dignitary harm and stigmatic injury might give rise to standing in some settings" but finding alleged injury insufficiently particularized) (internal quotations and citation omitted).

[10] Griffin v. Dep't of Lab. Fed. Credit Union , 912 F.3d 649, 654 (4th Cir. 2019) (disability-related discrimination case noting that "dignitary harms are readily inferred by allegations of unequal treatment" but finding alleged harm insufficiently concrete).

[11] To be sure, federal courts have ruled favorably in dignity-related cases before and after Obergefell. This article offers a dignity-related snapshot of post-Obergefell decisions, regardless of whether they explicitly reference Obergefell. See, e.g., Hicks v. Comm'r of Soc. Sec ., 909 F.3d 786, 803 (6th Cir. 2018) (finding "there is a distinct dignitary harm to beneficiaries who are not allowed to effectively dispute the allegation that they have been receiving undeserved benefits"); Kirk v. Comm'r of Soc. Sec. Admin. , 987 F.3d 314, 324 (4th Cir. 2021) (same); Grimm v. Gloucester Cnty. Sch. Bd. , 972 F.3d 586, 618 (4th Cir. 2020), as amended (Aug. 28, 2020) (Title IX discrimination case recognizing "emotional and dignitary harm"); Peltier v. Charter Day Sch., Inc. , 37 F.4th 104, 129 (4th Cir. 2022) (same); Disability Rts. Montana, Inc. v. Batista , 930 F.3d 1090, 1099 (9th Cir. 2019) (reversing dismissal of complaint concerning "health and dignity" of prisoners). In the U.S. Court of Appeals for the First Circuit, a recent favorable dignity-related ruling was vacated due to mootness. See Laufer v. Acheson Hotels, LLC , 50 F.4th 259, 274 (1st Cir. 2022) ("Dignitary harm or stigmatic injuries caused by discrimination have long been held a concrete injury in fact, even without informational injury."), vacated and remanded, 601 U.S. 1 (2023) (ordering vacatur and dismissal on mootness grounds). Though vacated, Laufer provides insight into how the First Circuit may handle dignity-related issues in future cases.    

[12] Obergefell affirmed the centrality of "individual dignity and autonomy." 576 U.S. at 663. However, a snapshot of post-Obergefell appellate decisions reveals some of the challenges surrounding dignity-related arguments and claims. See, e.g., Persinger v. Sw. Credit Sys., L.P. , 20 F.4th 1184, 1191 (7th Cir. 2021) (questioning "what did [the plaintiff] mean by dignitary harm?" and affirming denial of relief in disability-related discrimination case); Lee v. Ohio Educ. Ass'n , 951 F.3d 386, 391 (6th Cir. 2020) (finding no dignitary harm and affirming dismissal of teacher's First Amendment and other claims against union). These rulings denied relief based on case-specific facts and are easily distinguishable, leaving key opportunities open for future litigation.   

[13] But see Fugate v. Erdos , No. 21-4025, 2022 WL 3536295, at *9 (6th Cir. Aug. 18, 2022) (finding no legitimate penological justification for intrusion); see also Moore v. Town of Norwalk , No. 17-CV-695, 2017 WL 2603301, at *3 (D. Conn. June 15, 2017) (finding law enforcement intrusion unreasonable).

[14] See, e.g., Sw. Env't Ctr. v. Sessions , 355 F. Supp. 3d 1121, 1133 (D.N.M. 2018) (finding no "injury-in-fact [ ] related to personal, reputational and dignitary interests" in case challenging immigration policies, including the separation and detention of families).

[15] See, e.g., Carello, 930 F.3d at 834 (lacking "[c]oncreteness and particularization"); Brintley, 936 F.3d at 493-94 (6th Cir. 2019) (same); Griffin, 912 F.3d at 654 (same). Further refinement of arguments and claims would help attorneys demonstrate concreteness and particularity.

[16] Obergefell, 576 U.S. 644 at 678.

[17] Compare Reuters Ltd. v. United Press Int'l, Inc. , 903 F.2d 904, 908-09 (2d Cir. 1990) (recognizing reputational injury) with Oneida Indian Nation v. United States Dep't of the Interior , 789 F. App'x 271, 276-77 (2d Cir. 2019) (Summary Order) (finding no reputational harm against Indigenous people).

[18] Camel Hair & Cashmere Inst. of Am., Inc. v. Associated Dry Goods Corp. , 799 F.2d 6, 16 (1st Cir. 1986).

[19] But see Doe v. Hanover Cnty. Sch. Bd. , No. 24-CV-493, 2024 WL 3850810, at *17 (E.D. Va. Aug. 16, 2024) (transgender plaintiff "has demonstrated that she faces a likelihood of irreparable harm without the preliminary injunction due to the medical, emotional, social, financial, and dignitary harms that flow from a public rejection of [her] gender identity and her inability to access the benefits of athletics through her public school") (emphasis added).

[20] Federal courts have repeatedly recognized that reputational injury constitutes irreparable harm warranting judicial intervention. See, e.g., Camel Hair, 799 F.2d at 16 (finding "protectable interest" in reputation).

[21] See, e.g., Memphis Cmty. Sch. Dist. v. Stachura , 477 U.S. 299, 316 (1986) (Marshall, J., concurring) ("deprivations of constitutional rights can … themselves constitute compensable injuries").