Dignity v. Freedom

Justice Kennedy concluded his majority opinion in Obergefell v. Hodges with this summary: Gay couples “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” “Dignity” appears several other times in the opinion. Prior to the twentieth century, Kennedy observed, “many persons did not deem homosexuals to have dignity in their own distinct identity.” Even as recently as the post-war period, the dignity of gay Americans was undermined by social conditions and legal restrictions. For Kennedy, Obergefell offered America a chance to make amends for the indignities suffered by gays.

This wasn’t the first time Kennedy formulated a major decision by an appeal to a constitutional right to dignity. Just before his “sweet mystery of life” passage in Planned Parenthood v. Casey, Kennedy wrote that “decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are among the “most intimate and personal choices a person may make.” As such, they are “central to personal dignity and autonomy,” and central also to “the liberty protected by the Fourteenth Amendment.”

Dignity differs radically from privacy. Privacy protects one’s right to do what one desires behind closed doors. Though Kennedy links dignity to autonomy, dignity is oriented to public rather than private life. It’s the right to be granted respect for the “distinctive identity” that one has chosen. In Obergefell, Kennedy cited a case where Tennessee refused to recognize a gay marriage performed in New York. This was a failure to grant “the basic dignity of recognizing [the] New York marriage.” Tennessee owed the couple recognition.

Kennedy’s dignity jurisprudence draws on recent work among legal philosophers. In his Human Dignity, George Kateb equates dignity with “status and stature,” which have to do with “the proper recognition of the identity of every human being.” According to Kateb, this is nothing new. It has always been the basis of our constitutional liberties. The First Amendment refuses to establish the “exclusivity or superiority of a particular group identity” and thus keeps the government from inflicting indignity on minorities. Kateb is explicit that dignity overrides democratic process: “It is absurd that the voters of California, by majority vote in a referendum, could have decided that a judicially recognized right that allows people of the same sex to marry could be voided by their will.” It is absurd because “there is no right to deny rights to others because there is no right to harm others by immoral dispossession (or injure them in their equal status).”

Once the premises are granted, the logic is airtight. Each person chooses his own view of the world and his own way of life. That autonomous personal choice is an expression of human will and thus a display of human dignity. Everyone must acknowledge the dignity of the choice.

Some have called for dignity as the basis of a new public or legal philosophy, but it would set an impossible standard. No society can grant respect to every choice; societies must discriminate, and so must (on this theory) inflict indignity. Even when there is no intent to inflict harm, a law rooted in this view of dignity teaches that anyone who feels excluded by the law should see this exclusion as an affront to their worth as a person. The damage to democratic process is immense, as electoral defeats would come to be seen as a violation of a right to dignity.

In practice, dignity jurisprudence discriminates, often against believers. A British case illustrates. Lillian Ladele, an employee in a government post in Islington, asked to be excused from registering same-sex marriage licenses because of her religious convictions. The British Court of Appeal determined that her refusal amounted to discrimination and found that she offended gay colleagues in the office with her refusal; in addition to that, in the court’s judgment, Ladele’s views on marriage are not “a core part of her religion.” According to the court, she should have set aside her religious convictions and complied with Islington’s “Dignity for all Policy.” Why Ladele’s dignity as a believer wasn’t harmed by the policy was left unexplained.

The British court cited a South African decision from 2000, which acknowledged the difficulty of determining religious exemptions from obedience to laws. Difficult though it is, the court made clear that religious liberty cannot be absolute. An open and democratic society “based on human dignity . . . can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land.” The law should do its best to “avoid putting believers to extremely painful and intensely burdensome choices,” which implies that a moderate degree of pain is tolerable.

In the United States, too, marriage license exemptions have been attacked on the basis of dignity. In a memorandum from the Public Rights/Private Conscience Project, Katherine Franke and Kara Loewentheil argued that allowing religious exemptions would subject gay couples to “indignity, stigma, humiliation,” and the inconvenience of not knowing whether they will receive their marriage licenses.

Not all gay activists are keen on dignity arguments, which can be turned to conservative uses. As long as it remains in play, however, the gay marriage agenda cannot stop with permission of gay marriage. It is not enough that gay couples be granted the right to marry; married gays must also be accorded the dignity and stature that their choices demand—respect for their distinct identity. Anyone who refuses to accord them that dignity has violated the court’s public teaching and the norms of current law.

Dignity isn’t a right to privacy, but the opposite. It’s a claim to public recognition, if not necessarily approval. It’s a claim that makes demands on all the rest of us, and it looks set to override our freedom to dissent, whatever the grounds of our dissent may be.

Peter J. Leithart is President of Theopolis Institute. He is the author most recently of Gratitude: An Intellectual History. His previous articles can be found here.

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