The Problem with Justice Thomas’s Dignity Argument

Posted on Categories Constitutional Law, Judges & Judicial Process, Public, U.S. Supreme Court

Justice Thomas, in his fervent dissent to the Supreme Court’s decision to invalidate same-sex marriage bans, has some interesting things to say about the concept of dignity. His view of human dignity is that it is innate and therefore inalienable: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.”

The punchline, of course, is that the majority’s reasoning, which relies heavily on a Constitutional reading that sees dignity at the heart of liberty and the Due Process Clause, is flawed – gays and lesbians are not deprived of dignity (and therefore liberty) by their inability to marry, because “the government cannot bestow dignity, and it cannot take it away.” Essentially, Justice Thomas says, as long as the state leaves me alone, my liberty and dignity are intact.

Justice Thomas’s invocation of slavery and internment to illustrate his qualms about the dignity argument arguably undermines the moral force of his point. Moreover, it rests on a narrow and theoretical concept of dignity.  

To Justice Thomas, dignity means the nobleness of being human, “created in the image of God and therefore of inherent worth.” But to Justice Kennedy, writing for the majority, dignity as protected by the Constitution is a richer concept, and autonomy is at its heart: “[I]ntimate choices that define personal identity and belief” are “central to individual dignity and autonomy.” In the words of Pico della Mirandola, dignity is the ability of man “to be whatever he chooses to be.”

Taking these two aspects of dignity together – the innate dignity of being and the expressed dignity of choosing – there is a strong dignity-based argument for marriage equality. Gays and lesbians have the same intrinsic worth and dignity as every other member of the human race, and did so before Lawrence, Windsor, or Obergefell, but same-sex marriage bans, to quote the South African Constitutional Court, “represent[ed] a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.” The Supreme Court has now censored that statement of exclusion. In being granted the freedom to choose to express intimacy and commitment through the legal institution of marriage – or to choose an alternative way of ordering their lives and defining their relationships – gay and lesbian couples are bestowed with a measure of dignity-enhancing autonomy previously denied.

Of course, the concept of dignity has been invoked on both sides of the gay marriage debate. A common argument in favor of gay marriage bans is that allowing gay marriage somehow impinges the dignity of those who adhere to a traditional (heterosexual) definition of marriage. In my view, this misses the point. Dignity is not a zero-sum game. At its heart, dignity is concerned with the right to choose. Straight couples and religious institutions are free to construct their own beliefs about what marriage is – is it a religious sacrament or merely a legal institution? Does it require monogamy or not? Is it a permanent commitment or can it be dissolved? The autonomy of straight couples in determining how to order their relationships (to marry or not to marry) and define their marital values for themselves is not under threat. Rather, gays and lesbians have been afforded that same autonomy, “brought in from the legal cold” and thereby assured of their equal worth and dignity in the eyes of the law.

[Ed. note: Anna High was a Visiting Assistant Professor at the Law School from 2012 to 2014.]

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