In invalidating same-sex marriage bans nationwide in Obergefell v. Hodges, the Supreme Court held that the Fourteenth Amendment protected marriage as a fundamental liberty, regardless of the sex of the spouses. Specifically, it noted that
The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State….
….The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.
To this, Justice Clarence Thomas offered a dissent (in which he was joined by Justice Antonin Scalia), taking on the definition of liberty:
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits….[and the petitioners] have in no way been deprived [of liberty]. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.
This in itself is troubling enough. And rather typical of the right-leaning, libertarian-esque, social conservatives who tend to give the most ungrounded and facile readings of “liberty” — unless the flavor of said liberty is taxation or other kinds of property control.
But then things take an interesting, and, I would suggest, more worrying turn: Not only have the petitioners not been deprived of their liberty, Justice Thomas argues, but their human dignity itself is also not subject to governmental influence or control (and, indeed, “has long been understood in this country to be innate”). Here are Thomas’ thoughts:
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The corollary of that principle is that human dignity cannot be taken away by the government. 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. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
In other words, the laws, policies, practices, infrastructure, etc. for which the government — local, state, federal — is responsible has nothing to do with granting, and taking away, of human dignity, which is, apparently, sui generis: an inner quality, impermeable to, and untouchable by, the vulgar hand of the state. While I will not spend much time here stating the philosophical claim — that identities (and issues of dignity are indeed also issues of identity) are not just shaped by the resilience of individual will, but are mediated socially, morally, and psychologically — I do want to note that it is both odd and troubling that a Supreme Court Justice, a representative of the government at the highest level, went to such lengths to attenuate the connection between human dignity and governmental action. There is, of course, something to be said for the strength and resilience of the oppressed — from civilization’s earliest horrors to slavery to the Holocaust to today’s crimes against humanity, groups, communities and individuals have managed to rise above, to survive, to overcome, to look evil in the eye and not blink. That they have done so is beyond admirable, beyond awe-inspiring. Indeed, it is moving, humbling, calling for the kinds of moments of silence that call attention to those who went through the nightmare, and came out the other side.
But this is not what Justice Thomas’ dissent is about. In his words, in plain sight, can be found a terrible, distorting lie: That it is simply not possible for an official body, such as a government, to grant human beings their dignity, or to deprive them of it. From this, are we to understand that it was not genocidal, racist, colonialist, expansionist, official governmental policies, ideologies, wars, laws, regulations, and “traditions” that tortured, raped, mutilated, enslaved, and exterminated? Did officially-sanctioned actions do nothing to deprive those enslaved of their dignity? Did extermination orders, preceded by ghettoization, not take away the dignity of those marked for such “treatment”? Do not official state policies — confining millions in conditions that deprive them not only of the basic tools of survival, but of the voice to meaningfully oppose such confining — present a deprivation not only of dignity, but of the discursive spaces where dignity itself could be safely contemplated? And has the government — through the very decision with which Thomas takes issue — not granted some measure of dignity to a historically-oppressed minority by admitting that, yes, as citizens and as human beings, they, too, ought to have access to the most basic and fundamental of rights?
And none of this even begins to explore the historical wrongness of Justice Thomas’ view of the role and importance of dignity in judicial decisions, as well as within the legislative process….
The reader probably recognizes all of the historical examples that I have listed, but not named. In part, I have left them nameless because my goal here is not to engage with the specifics of each official, governmental crime — or its opposite. In part, I have left the above as symbols both of the horrors and victories that have been the direct result of governmental decisions and actions. I am not sure at which I despair the most: Justice Thomas’ inability to see the awesome power over the dignity of groups and individual human beings that those in positions similar to his own have wielded, and continue to wield; or the strength of his ideological convictions that seem to cloud not only judicial reason and history, but humanity itself. The story he tells — a version of the myth of the self-sustaining individual — is one we have heard before. Except this time, the “sustaining” apparently goes all the way down to our deepest sense of ourselves as persons. Fortunately, he is finding (marginally) fewer sycophants. Unfortunately, he still finds them.
Well said. You had me at Thomas’s claim that government internment camps did not strip U.S. Citizens of dignity. Cringe. That such a horrific time in our history, when U.S. And Canadian Citizens of Japanese descent were rounded up, stripped of their homes and jobs, and forced into farm labor, is even brought up as an example is astounding. That Thomas doesn’t see it as the government abusing its citizens’ rights and dignity is shocking.
A party in the conversation from which this post in part resulted, what strikes me is how Thomas is in the wrong pretty much no matter what concept of dignity you hold. Both I and our other interlocutor, unlike Anna, do endorse an innate conception of dignity (I on Kantian-Hegelian grounds, he on Catholic theological grounds). Even though this positions us in agreement with his ontological claim (however greatly we diverge on its metaphysical foundations), Scalia nevertheless remains in the moral wrong.
You simply cannot attribute dignity to a person without thereby committing yourself to respect that dignity. Dignity has built in normative implications. These, in fact, are the whole essence of the concept. Behaving as if the mere ontological fact of having it as one’s inalienable position were the beginning and end of the matter is to fundamentally misunderstand the entire concept or even—I will go further—the very meaning of the word. Because, as our ontological disagreement indicates, it doesn’t matter how you conceive of dignity, merely acknowledging the legitimacy of such a moral category commits one to the pro-equality side of this debate.
Or someone please step up and tell me if I’m wrong and there is a conceptually coherent account of dignity such as could possible justify Thomas’s reasoning. Methinks there is not.
Actually, I do think that dignity has an “innate” normative component in the sense that it is not just our external actions that matter, but our attitudes toward ourselves and others that motivate those actions. But you are right that we might differ in the sense that I do not take dignity to be a thing or a quality that we possess, but a practice in which we engage.
Oh yes, sorry, I did not mean to imply you missed the normative implications, as Thomas so bizarrely does in this dissent–just that he’s wrong not only on your account of the concept, but also on my different account, and that I cannot even imagine a coherent account that could support his reasoning.
Oh, of course. What is interesting to do is to check out some of the more conservative analyses of the dissent. The pretzel-logic is astounding….