Dignity before the bar

In many accounts of constitutional democracy, human dignity is a foundational value. Distinguishing between substantive constitutionalism and mere adherence to the terms of a particular constitution, Murphy has written that constitutionalism “demand[s] adherence not to any given constitutional text or order but to principles that center on respect for human dignity and the obligations that flow from those principles” (Reference Murphy2007, 16; see also Meyer and Parent Reference Meyer and Parent1992). One indication of the centrality of dignity to modern constitutionalism is its contemporary legal and political ubiquity (McCrudden Reference McCrudden2008; Daly Reference Daly2011; Barroso Reference Barroso2012;). Dignity is explicitly invoked in approximately three-quarters of the world’s constitutions (Barak Reference Barak2015, 34–65; Elkins and Ginsburg Reference Elkins and Ginsburg2021). It also appears in numerous international agreements, covenants, and conventions, with its prominence in the domain of human rights signaled by the first article of the Universal Declaration of Human Rights, which proclaims that, “All human beings are born free and equal in dignity and rights.” As former President of the Supreme Court of Israel Aharon Barak – himself a central figure in dignity’s juridical ascendance – has put it, “Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights” (id., 103). While the U.S. Constitution is among the minority of national constitutions that lacks a dignity provision, the American Supreme Court has nonetheless invoked the concept throughout its history, in contexts ranging from sovereign immunity to individual rights (Paust Reference Paust1984; Henry Reference Henry2011). Whereas the earliest usage mainly concerned the elevated rank of – and corresponding respect due – political actors, institutions, and processes, following World War II the Court began increasingly to refer to human dignity (Resnick and Suk Reference Resnik and Suk2003). Since then, dignity has become only more prevalent in the Court’s decisions, playing an especially prominent role in cases involving the death penalty, procedural due process, and fundamental rights. In this vein, one Supreme Court justice, William J. Brennan, even went as far as to characterize the Constitution as “a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law” (Reference Brennan1985, 8).

Perhaps surprisingly given its prominence, the repeated use of dignity in the Court’s constitutional jurisprudence has elicited little resistance from those who disagreed with the opinions in which it appeared. To be clear, this is not to say that those opinions went uncontested. Far from it. The decisions of the Court in the relevant cases contain some of the most heated rhetoric to appear in Supreme Court opinions. From accusations of “scatter-shot rationales” and “legalistic argle-bargle” to fears of a “Court that is impatient of democratic change” – to draw from just two gay rights cases – these opinions have no shortage of pointed and passionate disagreement (570 U.S. at 799; 539 U.S. at 603). But this makes it only more surprising that not one of the fundamental rights cases in which dignity was invoked featured an objection to the majority’s use or definition of human dignity. Given the wide range of possible and, one might even say, rather easy to anticipate critiques of dignity’s use in constitutional decisions, this silence is striking. Whether it is the potential ambiguity of human dignity, its absence from the text of the Constitution, or its uncertain relationship to and meaning within traditional rights doctrines, the majorities’ repeated invocation and increasing reliance on human dignity would seem to have presented natural targets for dissenting justices. This applies even more acutely to the “gay-rights triptych” of Lawrence v. Texas , United States v. Windsor , and Obergefell v. Hodges, in which, time and again over more than a decade, the Court’s conservative justices found themselves in the minority (Tribe Reference Tribe2015, 22).Footnote ¹ As even a cursory review of the philosophical and legal scholarship makes clear, there are more than a few objections to dignity’s use in constitutional jurisprudence (Weinrib Reference Weinrib, Jacobsohn and Schor2018). Many of these objections are applications of more general concerns about dignity’s role in ethical – and especially public ethical – discourse (Rosen Reference Rosen and McCrudden2013). Indeed, many observers who have agreed with the results of cases in which dignity was employed remained skeptical of its use. Nonetheless, not a single fundamental rights case leading to Obergefell v. Hodges presented an objection to, much less a direct rejection of, the conception of human dignity advanced by the Court majority. In fact, the absence of explicit disagreement over the meaning of dignity seems to be true of the Supreme Court’s opinions as a whole: no case in its history has featured a definitional conflict over dignity. No case, that is, until Obergefell.

Prior to the Court’s decision in Obergefell, the closest the justices came to explicitly (and publicly) disagreeing over the meaning of dignity was a 2008 case concerning the Sixth Amendment right to self-representation. Indiana v. Edwards (554 U.S. 164) presented the question of whether the standard of competency for an individual to stand trial was the same as, or lower than, the standard for that individual to represent himself at trial. The Court held that the competency standards could differ and that a state could refuse a defendant’s request for self-representation even though he had been found competent to stand trial. In the opinion for a 7-2 majority, Justice Stephen Breyer noted that, “a right of self-representation at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel” (id. at 176). This was a reference to the Court’s previous decision in McKaskle v. Wiggins (1984), another Sixth Amendment case in which the Court held that human dignity was among the central values served by the constitutional right of self-representation. “The right to appear pro se,” Justice O’Connor wrote in McKaskle for a six-member majority, “exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense” (465 U.S at 176–177).

Though the majority opinion in Edwards mentioned dignity just once, in dissent Justice Scalia, joined by Justice Thomas, made it a considerably more prominent part of his argument. Scalia’s central point concerned the majority’s interpretation of the McKaskle precedent. After clarifying his opposition to an approach to the self-representation guarantee that privileged the purpose of the right over the right itself, he rejected the majority’s estimation of the right’s purpose. More fundamentally, his disagreement focused on the relevance of human dignity to that purpose:

Scalia’s objection thus drew attention to the significance of choice and subsumed that within the ambit of human dignity. In this rendering, dignity required autonomy, an understanding deeply rooted in the Court’s decisions (Rao Reference Rao2013). The autonomy of a decision was proven by its making and not by its consequences; what mattered was whether the choice was freely made, not if that choice might turn out badly for the chooser. To second-guess or overrule a freely made decision would be to violate an individual’s autonomy and, for that reason, his or her dignity. Whether or not Scalia’s argument was an accurate rendering of either the Edwards majority opinion or the Court’s caselaw is a separate matter. It is significant, in this respect, that in the sentence immediately following the portion of McKaskle quoted by Breyer in Edwards, the Court said, “Both of these objectives can be achieved without categorically silencing standby counsel” (465 U.S. at 177, emphasis added). The identification of autonomy and dignity as distinct objectives furthered by the right of self-representation (and still realizable if that right is qualified) would seem to pose complications for Scalia’s interpretation that they are united. Accordingly, the differences between Scalia’s conception of dignity and that expressed by the Edwards majority may well have been more significant than the opinions let on. For this reason, the case may have been a missed opportunity for a direct confrontation over the meaning of human dignity in American constitutional law.

In sum, even though Edwards is indeed a case in which dignity figured in a disagreement between the majority and dissent, that disagreement concerned how a particular conception of dignity, rooted in the Court’s precedents, should be applied to the case at hand and not the conception of dignity itself. The disagreement, in other words, involved how an agreed-upon commitment in a mutually acknowledged precedent should influence the case at hand; the two opinions were divided not over the meaning of dignity but the ends vindicated thereby. Scalia did not offer an alternative definition of human dignity, nor did Breyer make any effort to explain what exactly dignity meant in the context of either Edwards or McKaskle. This latter aspect of the case is broadly consistent with how dignity has been used throughout the Court’s history. As Paust observes of the various formulations of dignity that appear in the Court’s decisions, “it has often been assumed that these phrases reflect primary constitutional expectations that need little explanation or supplementation with case or other precedent” (1984, 158). While it may be the case that Scalia and Breyer had quite different understandings of dignity in mind in Edwards, such a substantive disagreement can at best be inferred from their opinions. Perhaps the most that can be said here is that Breyer and Scalia (and possibly other justices in different cases) assumed they were invoking the same thing when they referenced human dignity. As a result, although Edwards represents an important instance of dignity’s salience in constitutional adjudication – one data point among many – it is nonetheless consistent with the Court’s behavior in similar cases. When human dignity has been employed in a decision, the conception in question has gone uncontested. As already indicated, however, that pattern was broken in Obergefell v. Hodges, where the Court’s dissenters explicitly rejected how dignity was used in the majority opinion and advanced an alternative conception.

Equal dignity’s Doubting Thomas

Obergefell is the only case in American constitutional law that features a direct definitional objection to dignity’s use and a counterargument addressing its requirements. While Justice Thomas’s dissent is the most significant in this respect, it bears noting that Chief Justice Roberts’s dissent also included an explicit criticism of the majority’s use of dignity. Roberts’s rejection was fairly dismissive and almost perfunctory. Leveraging the textualist grounds on which earlier arguments against dignity might have been mounted, the Chief Justice wrote that there is no “‘Nobility and Dignity’ Clause in the Constitution” (576 U.S. at 694). This was a reference to the majority’s claim that “[t]he lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life” (id. at 656). Invoking a slippery-slope argument that had figured prominently in both public and legal disputes around same-sex marriage, Roberts also asked why, if “there is dignity in the bond between two men or women who seek to marry…there would be any less dignity in the bond between three people who” had the same objective (id. at 704).

In his separate dissent, which Scalia joined, Thomas went considerably further than Roberts. Though the relevant discussion spans just four paragraphs, it came as a coda to the central argument of his opinion, which was that the majority’s analysis found no basis in the history and, therefore, meaning of the Constitution. Thomas devoted the first part of his dissent to chronicling the original meaning of the Due Process Clause and, in that context, the meaning of liberty under the Constitution. With references to Magna Carta, Blackstone, and unspecified framers of the Constitution, he stressed the limited scope of due process protections in the Anglo-American legal tradition. Of the Fifth Amendment Due Process Clause’s historical development, Thomas concluded, “When read in light of the history of that formulation, it is hard to see how the ‘liberty’ protected by the Clause could be interpreted to include anything broader than freedom from physical restraint” (id. at 725). With remarkable brevity, he then conjoined this definition to the meaning of the Fourteenth Amendment’s Due Process Clause. Acknowledging the possibility that the clauses may embrace more than “freedom from physical restraint,” Thomas nonetheless drew a distinction between the meaning of liberty under the Constitution and what was at issue in Obergefell. “In the American legal tradition,” he wrote, “liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” Thomas later underscored this difference, summarizing the constitutional meaning of civil liberty as “those freedoms that existed outside of government” (id. at 726 and 727; emphases in original).

This was why Thomas was unpersuaded by the majority opinion. The petitioners’ claim, as he saw it, amounted to an effort by same-sex couples to secure from government the benefits that attended marriage, giving as examples the “State’s imprimatur” and “monetary benefits” (id. at 729). For Thomas these entitlements (as he called them) clearly existed apart from the Constitution’s guarantees of both liberty and due process. If “liberty” referred to the freedoms that existed “outside of government,” then it could not encompass the “privileges and benefits that exist solely because of the government” (ibid.). Otherwise, these liberties would be subject to the contingencies and exigencies of politics, raising the possibility that even as they could be gained through government action so could they be lost or rescinded. Returning to his analysis of the original meaning of the Constitution, Thomas made clear why this could not be so: “But ‘liberty’ is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to government benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment” (id. at 731).

After briefly canvassing the potential consequences of the majority’s decision, particularly in the area of religious liberty, Thomas came to the matter of human dignity. While this analysis began a new section of the opinion, his argument on this point can be understood as a higher-level synthesis of the doctrinal and historical critique he previously offered, one that pivoted from his concern with original constitutional meaning to the nature of American constitutionalism more broadly. Indeed, this passage of Thomas’s opinion presents as concise and forceful a statement of negative constitutionalism as can be found in the Supreme Court’s decisions (Murphy Reference Murphy2007, 6–8; Barber Reference Barber2018, 2–6). Though Thomas began this section of his dissent by echoing the Chief Justice’s dismissal of the majority’s reliance on a term that did not appear in the Constitution, he did so in a way that introduced a substantive critique of one understanding of human dignity. After attributing the majority’s invocation of dignity to a possible recognition that the Court’s precedents did not support their understanding of liberty, Thomas wrote, building on Roberts’s dissent, “The flaw in that reasoning, of course, is that the Constitution contains no ‘dignity’ Clause, and even if it did, the government would be incapable of bestowing dignity” (id. at 735). This is because, like liberty, “Human dignity has long been understood in this country to be innate,” a consequence of the founders’ “vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.” And just as liberty cannot be lost, “human dignity cannot be taken away by the government” (ibid.). This is the essence of Thomas’s objection to the majority: because dignity is innate, it cannot be conferred by government; as a corollary, dignity cannot be withdrawn by government.

To illustrate the difference between the understanding of dignity he was endorsing and the one he was rejecting, Thomas included a provocative set of examples:

These are striking examples, not least because they were offered by the only African American on the Court at the time. But even more so, to claim that dignity is not just innate but also unaffected by a complete denial of freedom, internment by executive order, or (maybe less controversially) the denial of public benefits implies that government action – whether positive or negative – has no bearing on human dignity. Given these examples, it is unsurprising that this was among the few passages from a dissenting opinion in Obergefell that drew much public attention. Perhaps the most notable response came from actor and activist George Takei, a Japanese American who had himself been interned in multiple detention camps across California and Arkansas as a child. In an opinion piece published days after the Obergefell decision was announced, he wrote, “To deny a group the rights and privileges of others, based solely on an immutable characteristic such as race – or as in Obergefell, sexual orientation – is to strip them of human dignity and of the liberty to live as others live” (Reference Takei2015). Thomas rejected this conception of dignity. For him, human dignity was something distinctly and innately human, which is to say not involving and to be understood without reference to government. Thus construed, human dignity is beyond the reach of government – for good or for ill. Furthermore, to reject this understanding, Thomas argued, was tantamount to rejecting the fundamental commitments of American constitutionalism. The majority opinion, he wrote in the first paragraph of his dissent, “rejects the idea – captured in our Declaration of Independence – that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic” (576 U.S. at 721).

In his discussion of dignity, Thomas did not reference a single precedent. As a result, it may at first seem that his argument could be subject to the same criticism he leveled at the majority, namely that it finds little support in the Court’s previous decisions. But this would be a mistake. For one thing, there is the potent fact that Korematsu v. United States, the 1944 case that upheld the internment of Japanese Americans, was among the first Supreme Court cases to cite human dignity, as opposed to the institutional and governmental conceptions that have much deeper roots in American caselaw (Daly Reference Daly2011, 382–389; Henry Reference Henry2011, 192–199). There Justice Frank Murphy argued in dissent that accepting the government’s proffered justification of military necessity entailed sanctioning the attribution of group disloyalty from instances of individual disloyalty. This, Murphy argued as the Second World War still raged, amounted to following the practices of the very “dictatorial tyrannies which this nation is now pledged to destroy” (323 U.S. at 240). Allowing individual guilt to serve as the basis for discrimination against entire ethnic groups, he concluded, “is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow” (ibid.).

Additionally, Thomas did not make use of the resources offered by Anthony Kennedy himself in earlier opinions that advanced human dignity as a value relevant to constitutionally protected rights. In his recent study of the Court’s “dignity doctrine,” Engel (Reference Engel2018) identifies a conservative potential in Kennedy’s dignity-invoking arguments in both abortion and affirmative action cases. While Engel focuses on the shift – or the potential shift – from the protection of suspect classes to the rejection of any classifications in the Court’s equal protection jurisprudence, the cases he adduces are broadly consistent with the conception of dignity advanced by Thomas in his Obergefell dissent. Thus, for example, in Stenberg v. Carhart, the 2000 case that struck down Nebraska’s law prohibiting late-term abortion, Kennedy authored a dissent arguing (in part) that the law threatened the dignity of both the medical professionals involved in the procedure and the fetus (530 U.S. at 961–963). By the time the Court had occasion to return to the question of partial-birth abortion in 2007, personnel changes made possible a contrary holding. In Gonzales v. Carhart , the Court upheld the Federal Partial-Birth Abortion Act by a 5-4 margin. Now writing for the majority, Kennedy amplified his Stenberg dissent, arguing that the federal law “expresses respect for the dignity of human life” (550 U.S. at 157). In both of these cases, Kennedy cast dignity as something that was innate to human beings and that existed independent of government action.

An additional case that Thomas might have cited is Kennedy’s 2014 opinion in Burwell v. Hobby Lobby (573 U.S. 682). In that case the Court struck down the Affordable Care Act’s contraceptive coverage requirement on the grounds that such a regulation impermissibly violated certain corporations’ religious free exercise rights under the First Amendment. In a concurring opinion Kennedy argued that, for those individuals who use their freedom to “believe in a divine creator and a divine law…free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts” (573 U.S. at 736). Though Kennedy stopped short of making the connection in his Hobby Lobby opinion, this passage provided a religious gloss to the oft-cited section of his joint opinion in the 1992 case Planned Parenthood v. Casey. There, in an opinion that reformulated and entrenched constitutional protections for abortion rights, Kennedy argued that the Fourteenth Amendment protected certain categories of decision making, namely those “choices central to personal dignity and autonomy” (505 U.S. at 851). These decisions, the opinion continued, were at the core of the liberty protected by the Constitution, ensuring “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (ibid.). Though this passage has been the subject of intense criticism, the passage from Hobby Lobby reveals a connection to concerns associated more frequently with the Court’s conservative members. The shared point of contact between sexual and relational autonomy, on the one hand, and religious free exercise, on the other, is the dignity accorded humans as autonomous and self-defining beings – capacities innate to human beings.

In all four of these cases – Stenberg, Gonzales, Hobby Lobby, and Casey – Kennedy associated human dignity with human life as such, identifying it as the source of claims against government invasion or coercion. So, too, with Murphy’s dissent in Korematsu. While the full implications of the arguments in those cases might point in directions Thomas would not ultimately follow, they nonetheless could have bolstered his argument in Obergefell that human dignity was something that, as far as Supreme Court precedent was concerned, existed independent of government recognition or action. Further, as a basis of human value and worth, this dignity gave rise to restrictions on government power and standards of legitimate public conduct. Even as he rejected what he took to be Kennedy’s definition of human dignity, Thomas nonetheless cast dignity as a foundational value of American constitutionalism, one that ultimately justified limitations on government action while emphasizing the distinct nature of human beings.

The salience of human dignity in the argument Thomas advanced reveals its centrality to his account of the American constitutional order. While his Obergefell dissent reprises a familiar jurisprudential refrain about governmental limitations, Thomas’s emphasis on dignity underscores and, in so doing, further clarifies his vision of constitutional liberty and human freedom. That vision is rooted in a form of radical independence—in the belief that true freedom entails self-determination, self-help, and self-reliance. The need for external support or provision, such as the “governmental entitlement[s]” he spurned, would render an individual fundamentally dependent. Thus understood, the grounds of human status and distinctiveness are insusceptible to derogation or loss. Government, in turn, exists to protect and preserve this vision of liberty and the natural rights that follow from it. This understanding renders coherent Thomas’s proposition that enslaved or interned humans did not lose their dignity in virtue of their condition, because on Thomas’s account of dignity they could not lose their dignity in virtue of their circumstances or externally imposed conditions. To be human is to possess a dignity beyond the reach of government. For Thomas, this understanding of dignity served as the foundation for a vision of limited and constrained government predicated on the preservation of individual freedom, particularly freedom from dependence on government intervention.

Thomas’s account of liberty and its connection to human dignity evokes elements of his jurisprudence in the areas of racial preferences and affirmative action, which others have fruitfully analyzed in the context of Black nationalist influences on Thomas’s political and legal philosophies (Tushnet 2003–Reference Tushnet2004; Smith Reference Smith2009). The most developed such account is Robin’s revisionist rendering of Thomas, which portrays the Justice as “a black nationalist whose conservative jurisprudence rotates around an axis of black interests and concerns” (Reference Robin2019, 8). Central to all of these treatments is Thomas’s embrace of the strain within Black nationalism that emphasizes empowerment and progress through self-reliance, rather than via the separatism that characterized earlier Black nationalist discourse (Peller Reference Peller1990; Moses Reference Moses1996). Self-reliance is undermined by dependence, which for Thomas is borne out in the belief that preferential treatment, whether in the form of affirmative action or heightened judicial solicitude, demeans the intended beneficiaries and makes them victims of their circumstances rather than masters of their own destiny (Thomas Reference Thomas1987, 403 n. 3). Consider, for example, his opinion in Adarand v. Peña, a 1995 case concerning racial preferences in federal government contracting. Concurring in the Court’s judgement that such classifications must be reviewed under the Court’s strictest standard of review, Thomas wrote separately to emphasize that there was not “a racial paternalism exception to the principle of equal protection” (515 U.S. 200, 240). Though the concurrence does not explicitly invoke human dignity, it features a similar argument to the one Thomas advanced in his Obergefell dissent: the government could only “recognize, respect, and protect” the essential attributes of human beings; it could not alter them (ibid.). One implication of this constitutional vision is that the state bears limited responsibility to address harms caused by private parties, a result suggested by Thomas’s assertion that enslaved persons did not lose their dignity when “the government allowed them to be enslaved.” Because dignity could not be protected by positive government action and no constitutionally guaranteed rights were abridged, no judicial intervention was warranted, much less required. With its opposition to compensatory and ameliorative policies, Thomas’s constitutional vision fits comfortably within the contemporary conservative legal movement while also providing legal resources for that movement’s continued progress (Teles Reference Teles2008).

While dignity does not figure prominently in any of the works that evaluate Thomas’s jurisprudence, Thomas himself has suggested its centrality to his broader worldview. For example, in 1995, at the end of his fourth year on the Court, he delivered an address to the Federalist Society in which he assailed the pernicious effects of “blaming circumstances for one’s situation rather than taking responsibility for changing things for the better” (Reference Thomas1996, 671). “In so doing,” Thomas argued at the end of his speech, “we deny the very attributes that are at the core of human dignity – freedom of will, the capacity to choose between good and bad, and the ability to endure adversity and to use it for gain” (id., at 682). Thomas has arguably been even more direct on the topic of affirmative action. In a footnote to an article written while he was still chairman of the Equal Employment Opportunity Commission, he argued, “Class preferences are an affront to the rights and dignity of individuals” (403 n. 3). As one account of Thomas’s jurisprudence observes, this assertion anticipated his later opinions in cases such as Adarand (Gerber Reference Gerber1999, 196). Finally, a vignette from Thomas’s personal life provides an example that, while perhaps more trivial, illustrates with striking clarity the exact conception of dignity he advanced in his Obergefell dissent. After separating from his first wife in 1981, Thomas moved in with Gil Hardy, his closest friend since their undergraduate years at Holy Cross. As he got ready for work each morning, Hardy would listen to music. Despite hearing it many times before, one song in particular stood out to Thomas, George Benson’s “The Greatest Love of All.” Thomas’s Reference Thomas2007 memoir, My Grandfather’s Son, notes the lyrics from the song that struck him most: “I decided long ago, never to walk in anyone’s shadows/If I fail, if I succeed/At least I’ll live as I believe/No matter what they take from me/They can’t take away my dignity” (136–137). Understood this way, human dignity is “so innate that no act of humiliation, degradation, or oppression by the state could deprive a person of it” (Robin Reference Robin2019, 59 and n.53). It was this conception of invincible dignity that Thomas cited as the foundation of American constitutionalism. Thomas’s Obergefell dissent thus reveals a common thread connecting his jurisprudence in race-related cases and his broader understanding of liberty in the American constitutional tradition. Moreover, the dissent illustrates the centrality of a particular conception of human dignity to his account of American constitutionalism, a conception that undergirds the meaning of constitutional liberty and delimits lawful exercises of political power. At least as far as his Obergefell dissent was concerned, for Thomas dignity was the inviolable core of humanity that could neither be enhanced nor diminished by the actions of government.

Deciphering equal dignity

While more could be said about Justice Thomas’s dissent in Obergefell, what is most important for present purposes is its relationship to the majority opinion. After all, Thomas directed his rejection of the majority’s treatment of human dignity at a particular argument, specifically the claim that dignity is conferrable by government and therefore subject to removal or denial. It was that understanding of dignity, according to Thomas, that was at such odds with the theory, history, and meaning of the U.S. Constitution. However, contrary to Thomas’s framing of the case, the majority portrayed dignity as possessed by individuals and the relationships they entered through autonomous, self-defining choices. The significance of this dignity – for gay and straight couples alike – demanded equal treatment by government. Indeed, not one use of dignity in the majority opinion identified the government as the principal source or origin of dignity. Under the majority’s conception of dignity, the Constitution required that the rights and privileges of marriage be granted to gay and straight couples on the same terms, and that the states be compelled to recognize this liberty and equality. For Thomas, the dignitary harm that the majority redressed with the recognition of a constitutional right of same-sex marriage was not even a legible harm that government could redress. For constitutional purposes, dignity simply was not implicated by the inability of gay couples to marry or have their marriages recognized in different jurisdictions. In this way, the divergent conceptions of dignity underpinned two drastically different accounts of what was at stake in the case while also supporting two starkly different visions of American constitutionalism. An examination of the majority’s argument on this front thus reveals both the extent and the significance of the disagreement over the meaning of human dignity.

The most well-known use of dignity in the majority opinion served as the basis for the New York Times’ front-page headline the day after Obergefell was handed down: “[The petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right” (576 U.S. at 682). While it may seem as though this conclusion identified government as the agent empowered to grant equal dignity to those who seek it, usage elsewhere in the opinion makes clear that this is not quite the case. Earlier in the opinion, Kennedy observed that over time “society began to understand that women have their own equal dignity” (id. at 660). Women’s rights and state regulations of marriage – most conspicuously the law of coverture – were altered or abandoned to take account of this reality, which Kennedy depicted as operative even before it was recognized legally or politically. Similarly, citing the appellant’s brief in Reed v. Reed (404 U.S. 71), he described the unequal treatment of men and women in the regulation of marriage as “classifications [that] denied the equal dignity of men and women” (576 U.S. at 674). Just like the law of coverture, sex-based classifications in marriage withheld recognition of women’s dignity – dignity that existed prior to and independent of government action.

While government may not be the source of dignity, it most certainly could harm one’s dignity and, in that sense, diminish it. In the course of acknowledging and justifying the significance of judicial review in this area, the Obergefell majority addressed the aftermath of Bowers v. Hardwick (478 U.S. 186), the 1986 case that upheld criminalization of same-sex sexual intimacy. Though Bowers was overturned seventeen years later in Lawrence v. Texas , the Obergefell majority opinion explained, “Dignitary wounds cannot always be healed with the stroke of a pen” (576 U.S. at 678). The threat of harm to the dignity of those seeking to marry warranted judicial solicitude, even to the point of requiring states to recognize what many of them had to that point only denied through their own legislative processes. The closest the Obergefell majority came to suggesting that government may bestow or confer dignity, as Thomas alleged in his dissent, was in the description of the nature of marriage. As indicated earlier, Kennedy wrote in this connection, “There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices” (id. at 666). But even here it was the “union” and the “bond” that were the sources of dignity, not any action of government. Put another way, it was the relationship itself that, when entered into by individuals’ autonomous and self-defining choices, was dignity-bearing. State recognition of these relationships simply acknowledged what already existed. To withhold recognition would be to fail to do justice to the dignity of individuals and the relationships they sought to enter, relationships that were equal in dignity to opposite-sex relationships that those state governments already recognized.

The use of dignity by the Obergefell majority thus painted a picture in which government could not originate dignity but could most certainly disparage, deny, and even damage it by failing to recognize the differential enjoyment of dignity-bearing interests among similarly situated individuals. This is, admittedly, a fine distinction, and it is not one the majority took time to explain. While dignity’s definition was at the center of Thomas’s argument in dissent, for Kennedy and the majority dignity went largely unexamined despite its centrality. Nonetheless, the disagreement between the two turns on this relationship between the actions of governmental institutions, including courts, and the dignity interests of citizens. For Thomas, as we have seen, human dignity was innate and inviolable. Humans were endowed with dignity qua humans, and no action of government – even the comprehensive deprivation of freedom – could affect that endowment. While not denying this conception of innate dignity, the majority recognized a further dimension that acknowledged the social and relational aspects of dignity. It was not enough for one’s dignity to be enjoyed merely as an ontological status; it was also necessary for the implications of that dignity to be recognized in law. This was especially the case when certain dignities, like those associated with marriage, were enjoyed by some but not by others. On this understanding, even innate, individual dignity required legal recognition for its significance to be realized. Merely having dignity was not sufficient. Rather, government was implicated in the recognition and protection of individuals’ dignity.

The majority’s acknowledgment of the need for dignity to be meaningfully recognized affords a response to one prong of Thomas’s argument about the scope of constitutionally protected liberties. Despite limiting the Constitution’s due process guarantees to the absence of physical restraint, Thomas stopped short of acknowledging the realities of life for same-sex couples who were married before Obergefell was decided. Despite having dignity in the sense urged by Thomas, those couples were unable to move to jurisdictions that did not recognize their marriages without losing legal recognition of their relationship’s status, along with the myriad rights, benefits, and protections that status conferred. For married same-sex couples, even temporary travel to states that did not recognize their marriages posed similar risks, exposing them to the loss of legal privileges conferred only to marital relationships recognized by the state. Acknowledging the dignity of these couples and their relationships – the focal point of the majority opinion – required recognition of their marriages on equal terms with straight couples. The majority’s conception of dignity was predicated on ensuring that dignity was meaningfully possessed, that its requirements were recognized and protected. Indeed, this example shows how, even apart from considerations of dignity, Thomas’s argument arguably fails on its own terms. Prior to Obergefell, same-sex couples were effectively denied the full enjoyment of basic rights of travel and movement, a situation of immense physical restraint. What for the majority was a constitutionally compelled response to a discrepancy in dignity between similarly situated individuals – itself the result of significant social and political change – was for Thomas an attempt to do the impossible. Under Thomas’s conception of dignity, gay couples who were unable to marry or have their marriages recognized in all U.S. states simply had not suffered a constitutionally cognizable harm, much less one that could be redressed by the Court.

As just suggested, central to the majority’s argument was the claim that the meaning and requirements of freedom are progressively realized – while the concept remains the same, the conception changes “as new dimensions of freedom become apparent to new generations” (576 U.S. at 660). This is a common theme of Justice Kennedy’s opinions in the area of constitutional liberties and is among the distinguishing features of his legal philosophy (Colucci Reference Colucci2009, 8–37; Knowles Reference Knowles2009). As far back as his confirmation hearing, Kennedy had expressed his belief that “the enforcement power of the judiciary is to insure that the word liberty in the Constitution is given its full and necessary meaning, consistent with the purposes of the document as we understand it” (1987, 122). Even in those hearings, he was clear about the role of dignity. In response to a question about how judges were to determine which rights were fundamental and judicially enforceable, Kennedy replied,

Taken together, these commitments justified the extension of rights to those who were once excluded from the limited scope of legal protections. For Kennedy and the Court majority in Obergefell, this was not only the nature of the American Constitution, but also the duty of those who sought its continuing efficacy. As the Court held in the concluding lines of its Casey decision, in a joint opinion by Justices O’Connor, Kennedy, and Souter:

If the full meaning and requirements of liberty are disclosed only with the passage of time, then the legal definitions and barriers constructed at earlier moments must give way to new, fuller understandings. This conviction was echoed by the Obergefell majority’s assertion that, “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right” (576 U.S. at 677).

In the arguments advanced in the Court’s gay rights decisions, and especially in Obergefell, dignity serves as a sign and marker of individual, relational, and sociopolitical value. That is, dignity identifies sources of value, meaning, and worth that transcend time-bound codifications of legal protection or sanction. So, for example, in Lawrence, dignity inhered in the choice to engage in sexual intimacy, irrespective of the identity of one’s partner. Similarly, in Obergefell the dignity of an opposite-sex relationship was equal to that of a same-sex relationship, no matter the regulatory choices of individual states. In both cases, government recognition and policy were made to bow to the underlying dignity interests of individuals and the relationships they entered. In these cases, dignity marked the broader significance and value of behaviors, practices, and relationships that were only partially recognized by prevailing law.Footnote ² By connecting the dignity interests of legally protected individuals with those of legally excluded individuals, the Court’s “equal dignity” framework provided for the “upwards equalization” of legal entitlements, statuses, and protections (Waldron Reference Waldron and Dan-Cohen2012, 33). In this way, “dignity does the work of tradition without the requirement of time” (Ewing Reference Ewing2018, 772). The result is a methodology that at once acknowledges the partiality of liberty’s legal codification while providing a mechanism for progressively identifying liberties that warrant constitutional protection.

In the final analysis, what separates Kennedy’s and Thomas’s arguments in Obergefell is the acknowledgment that human dignity makes positive claims on public power and public authorities, and, as a corollary, that to withhold or offer unequal recognition of an individual’s dignity affects a dignitary harm. Whereas Thomas denied these claims, insisting instead on the prohibitions arising from the innate human dignity he believed was rooted in human nature and American constitutional history, they were basic premises in Kennedy’s analysis. On the terms of Kennedy’s argument, a government’s refusal to recognize the marriage of a same-sex couple would not negate the dignity of those individuals, nor of the bond they shared. But such a refusal would devalue same-sex relationships relative to opposite-sex relationships, just as it would disrespect gay citizens relative to straight citizens. In this way, while government action or recognition was not the sole source of dignity, governments could affect the dignity interests possessed by citizens. Through their actions, governments influence endowments of dignity. These actions, in turn, affect the relative standing and broader perception of the individuals and couples who bear those endowments. Despite Thomas’s insistence that the majority failed to recognize that dignity was inviolable and beyond deprivation by the state, the majority’s analysis suggests that in the absence of official recognition the dignity of homosexual individuals and relationships would nonetheless exist. In this sense, for the majority dignity was also beyond the reach of government at some point – inviolable and immune from complete derogation. Though it may be denied, it cannot be destroyed. Hence, the dispute in Obergefell over the meaning of human dignity includes a significant, though unacknowledged, area of agreement. Both sides affirmed that some dignity interests inhere in individuals as such and the relationships they undertake, develop, and maintain. Ultimately, though, the conceptions of dignity invoked by the majority and dissent in Obergefell are fundamentally at odds, with Kennedy and the majority seeking to redress a denial of dignity that, for Thomas, was not possible because dignity could be neither denied nor conferred.