The Sweet Mystery of Dignity


In the vast majority of governing charters around the world, you will read the word “dignity”—but you won’t see it in the American Constitution. The traditional lodestars of American rights jurisprudence have been liberty and equality, as enshrined in the Bill of Rights and the Fourteenth Amendment’s equal protection and due process clauses. But of late, dignity has had something of a renaissance. Writing for the Court in United States v. Windsor (2013), Justice Anthony Kennedy concluded,

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.

In Windsor, Kennedy made reference to dignity (or one of its cognates) 10 times, compared to just six instances of “equality” and five of “liberty.” For such a significant decision, the emphasis on such an abstract and contentious concept struck many as odd.

Nonetheless, most observers weren’t surprised by Kennedy’s flight of philosophical fancy. After all, “sweet-mystery-of-life” passages (to borrow Justice Antonin Scalia’s phrase) appear regularly in his landmark opinions. Most famously, in the 1992 majority decision in Planned Parenthood v. Casey, Kennedy observed, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” For Scalia (among many others) this simply was not the stuff of a stable or rigorous jurisprudence.

But Kennedy is responsible for a more pressing jurisprudential mystery: where it is the Court’s decades-long argument about dignity and gay rights will lead. Its gay rights jurisprudence stands on a Kennedy-constructed foundation. Moreover, as Richard Reinsch pointed out in a piece last week, the opinions share a common conceptual cornerstone: dignity. Thus, any future decision in this area will likely rely on the dignity arguments laid out within and across those opinions, almost certainly if Kennedy again writes for the majority.

But let us count. Across the Kennedy opinions, at least three distinct notions of dignity have been employed. Depending on which is emphasized, the answers to questions like those posed in Obergefell v. Hodges could come out a number of different ways. It is therefore crucial to answer a basic question: What do we mean when we talk about dignity in the context of constitutional rights?

The first relevant case in the gay rights context is Bowers v. Hardwick (1986). Though the case predates Kennedy’s appointment to the Court, it is there that Justice John Paul Stevens made a connection between autonomy and dignity that reverberated through Kennedy’s subsequent opinions. Stevens, dissenting from the Court’s decision upholding a Georgia law that criminalized sodomy, argued that the case was not about a particular right of homosexuals but about a much broader set of liberty interests protected by the Court’s privacy jurisprudence. This body of law, Stevens continued, was “animated by an even more fundamental concern.” Judicial recognition and protection of these rights was rooted in “our tradition of respect for the dignity of individual choices in matters of conscience.”

When the Court decided, 16 years later, to hear a challenge to a Texas anti-sodomy law, the justices were compelled to revisit the Bowers decision. By a vote of 6 to 3, the Court forcefully repudiated Bowers. Quoting the sweet-mystery-of-life passage from Casey, Kennedy wrote for the majority in Lawrence v. Texas that:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

Elsewhere he wrote that because it is not the Court’s role to “define the meaning of the relationship or set its boundaries . . . adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.”

Whereas in Bowers, dignity played a small though nonetheless important role in the dissent’s reasoning, in Lawrence it played a central role in the majority’s reasoning. The dignity inherent in all citizens required that they be free to autonomously pursue their definitions of existence and human flourishing, indeed, of life itself. While there are important differences between dignity as expressed in Bowers and dignity as expressed in Lawrence, both concern a sphere of individual inviolability in which governmental interference is prohibited.

So by the time the Court granted cert in United States v. Windsor, which challenged the constitutionality of the Defense of Marriage Act (DOMA), there was already a reasonably well developed jurisprudence of dignity, rooted in inherent individual rights and interests. It was, therefore, surprising that in striking down the provision of DOMA at issue in that case, the majority covered yet more dignity-driven ground.

Windsor’s departure from Bowers and Lawrence is announced early in Kennedy’s majority opinion, where he observes that for many, “the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage” was a recent realization. More substantively, the Court held that in recognizing the validity of same-sex marriages, the state of New York “sought to give further protection and dignity to that bond . . . a relationship deemed by the State worthy of dignity in the community equal with all other marriages.” The state’s decision “conferred upon them a dignity and status of immense import.” In striking down the relevant provision of DOMA, the Court recognized the validity and consequences of that conferral.

In Windsor we encounter, in fact, two new notions of dignity—one democratic and the other social. Whereas the former entails the conferral or enhancement of dignity by governmental action, the latter is a function of one’s standing in a sociopolitical community. A government can bestow dignity by officially recognizing an individual or group attribute; similarly, it can enhance dignity by attaching greater protections or privileges to that attribute. Once possessed, dignity takes on a social dimension, signaling to the community official sanction and acceptance. Though closely intertwined, the democratic and social notions of dignity connote different understandings of the relationship between individuals and government and, as a result, implicate different requirements for constitutional protection.

The disparate notions of dignity employed from Bowers through Windsor open up a host questions. Three are especially important.

The first concerns the distribution of dignity across a polity: If enjoyed by some, must it be enjoyed by all? To use a concrete example, if gay marriage is legal in California, do gay couples in Arizona, where same-sex marriage was defeated at the polls, suffer a deprivation of dignity or even an overt indignity? Are gay and lesbian Arizonans affected by the enhanced dignity of similarly-situated couples in a political community of which they are not members? In Obergefell, the Court must answer whether all 50 states are required, pursuant to the Fourteenth Amendment, to recognize same-sex marriage.

A second question concerns which governmental level is empowered to authoritatively confer dignity. Is it the municipality, the state, or the nation? Or is there a more complicated process at play, by which a national resolution is reached through the interactions of subnational democratic processes over time? In Windsor the states’ traditional role in regulating marriage played a significant part in Kennedy’s opinion. In Obergefell the Court must bring more clarity than it has thus far provided, answering whether states must recognize same-sex marriages performed in other jurisdictions (in the event they are not already required to recognize the marriages of their own same-sex couples).

The final, and perhaps most salient, question concerns the directionality of dignity. Do dignity interests point ineluctably toward the expansion of gay rights? If so, then New York’s decision to change the definition of marriage to include same-sex couples would be a conferral of dignity while Wisconsin’s decision to retain a traditional definition would not. And as Richard points out in his piece, according to Kennedy himself, dignity interests inhere not only in areas of sexual autonomy and intimate relationships but also in the domain of religious belief and expression. So where does dignity apply and what does it require?

Although these questions are pitched at a very high level of abstraction, the Court does not exist in a vacuum and must find its way in the messy world of democratic politics. What’s more, that messy world is at least partly of its own making. Every decision the Court hands down triggers a chain reaction of political activism, legal appeals, and fresh litigation that precipitate further decisions. So even as it must eventually address the questions left unresolved by its own jurisprudence, the Court is also subject to the vicissitudes of democratic constitutionalism.

In Obergefell the Court, and in all likelihood Justice Kennedy, will have the chance to further develop the jurisprudence of dignity. If this opportunity is taken, the justice writing the opinion will have to choose among the notions of dignity laid out in Bowers, Lawrence, and Windsor, for there is simply no coherent way to bring them all together in the case at hand. But whichever way the decision falls, the Court will likely be forced to reap what it has sown. Perhaps ironically, the very jurisprudence that has attended the expansion of gay rights has provided the grammar for constitutional arguments to vindicate dignity interests far beyond, and even in tension with, gay rights.

Reader Discussion

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on June 16, 2015 at 09:57:53 am

For what it's worth, the Supreme Court acknowledged dignity concerns and affirmed that the federal government has the power to vindicate them, in interpreting the 1964 Civil Rights Act:

The Senate Commerce Committee made it quite clear that the fundamental object of Title II [of the Civil Rights Act of 1964] was to vindicate "the deprivation of personal dignity that surely accompanies denials of equal access to public establishments." At the same time, however, it noted that such an objective has been and could be readily achieved "by congressional action based on the commerce power of the Constitution." S. Rep. No. 872, [88th Cong., 2d Sess.,] at 16-17. Our study of the legislative record, made in the light of prior cases, has brought us to the conclusion that Congress possessed ample power in this regard….

[Heart of] Atlanta Hotel v. United States, 379 U.S. 241, 250 (1964) (emphasis added). The Senate Report stated more fully:

The primary purpose of [the Civil Rights Act], then, is to solve this problem, the deprivation of personal dignity that surely accompanies denials [379 U.S. 241, 292] of equal access to public establishments. Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public…. It is equally the inability to explain to a child that regardless of education, civility, courtesy, and morality he will be denied the right to enjoy equal treatment, even though he be a citizen of the United States and may well be called upon to lay down his life to assure this Nation continues.

S. Rep. No. 872, 88th Cong., 2d Sess., 16-17 (emphasis added).

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on June 16, 2015 at 10:29:15 am

See also “The New Equal Protection” by NYU Law Prof. Kenji Yoshino (citations omitted):

The the Court has moved away from group-based equality claims under the guarantees of the Fifth and Fourteenth Amendments to individual liberty claims under the due process guarantees of the Fifth and Fourteenth Amendments. This move reflects what academic commentary has long apprehended — that constitutional equality and liberty claims are often intertwined. Professor Laurence Tribe uses the phrase “legal double helix” to describe this “Substantive Due Process–Equal Protection synthesis.” Following Tribe’s convention, I refer to such hybrid equality/liberty claims as “dignity” claims.

* * *

The introduction of a third overarching term like “dignity” that acknowledges the links between liberty and equality is overdue. Too much emphasis has been placed on the formal distinction between the equality claims made under the equal protection guarantees and the liberty claims made under the due process or other guarantees. In practice, the Court does not abide by this distinction. The Court has long used the Due Process Clauses to further equality concerns, such as those relating to indigent individuals, national origin minorities, racial minorities, religious minorities, sexual minorities, and women. Conversely, the Court has used the equal protection guarantees to protect certain liberties, such as the right to travel, the right to vote, and the right to access the courts. We need to look past doctrinal categories to see that the rights secured within those categories are often hybrid rights.

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on June 16, 2015 at 10:51:42 am

There has been much reference to (and conflation with "Rights of) of the concept [?] DIGNITY.

The word, itself, connotes a *relative* status of a particular set of characteristics which have meaning in a specific (including social) relationship.

In examining whether individuals have a "Right" to a particular form of relative status, especially in (but not limited to) the social order, the results can be determined by whether there is a corresponding obligation of others to recognize and acknowledge that relative status.

If so, we must next determine how and why that corresponding obligation arises (privately or socially), in what relationships, and the manner of performance of the obligation required.

To establish such an obligation by legislative fiat, followed by judicial fiat (enforcement) falls under the rubric of delineating a *desired* (or more desirable) social order and the relationships necessary for it.

Where the judicial process for some 500 years had been to determine the obligations arising out of relationships, and enforce them (Common Law), we are now finding labels to put on judicial confirmations of legislated relationships. One of those labels is DIGNITY.

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R Richard Schweitzer
on June 16, 2015 at 14:52:59 pm

Thanks for the comment and, especially, for pointing out the deep constitutional roots of arguments about dignity. While the Court has yet to make the connection between dignity in the context of gay rights and dignity in the context of racial discrimination, that is exactly what some, such as Bruce Ackerman, have tried to do. (See especially Ackerman’s “Dignity Is a Constitutional Principle”: http://www.nytimes.com/2014/03/30/opinion/sunday/dignity-is-a-constitutional-principle.html?_r=0.) In addition to civil rights, dignity has also been deployed in cases dealing with free expression (e.g., Board of Ed. v. Barnette [1943]), criminal procedure (Harris v. United States [1947] and Adamson v. California [1947]), and institutional and/or governmental prerogatives (e.g., Ex Parte Young [1908] and United States v. Lanza [1922]).

It’s important to note, though, the difference between the Court’s treatment of dignity in Heart of Atlanta and its treatment in Lawrence and Windsor. In the first case, the Court validated a dignity interest that Congress recognized in passing the Civil Rights Act. But in Lawrence and Windsor, the Court validated a dignity interest that was violated by a state and national law, respectively. So while Heart of Atlanta may stand for the principle that Congress has the power to vindicate dignity interests, it is a different question whether and how the Court can vindicate such interests in the absence, or even in the face, of positive governmental action.

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Connor Ewing
on June 16, 2015 at 14:59:16 pm

Thanks (again!) for the comment. This piece is an adaptation of a section from a much longer paper I’ve written on dignity jurisprudence. (You can find it here: https://www.academia.edu/13021733/With_Dignity_and_Justice_for_all_Dignity_Jurisprudence_from_Bowers_to_Windsor_and_the_Convergence_of_Liberty_and_Equality_in_American_Constitutional_Law.) There I cite Yoshino’s very important piece. More importantly, I engage directly with Tribe’s “double helix” metaphor and try to grapple with the consequences of an explicit and self-conscious jurisprudence of dignity.

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Connor Ewing
on June 16, 2015 at 15:25:37 pm

Can't read it now, but the title -- "With Dignity and Justice for All?" -- is a good start!

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on June 16, 2015 at 16:17:00 pm

There seems to be two foundational question which the jurisprudence of dignity must first answer. The first is whether the term "dignity" is vague, ambiguous or both; the second is whether the jurisprudence of dignity changes with changing connotations of the word.

To explore the first, it may be helpful to conceptualize the terms vague and ambiguous with respect to classifying the word "dignity" into discrete groups. The term vague indicates that there is no clear boundary between groups, and ambiguous means that the term may belong to more than one group, without a clear process for distinguishing further. The notion of "three types of dignity" implies that the term is at the very least ambiguous, and ambiguity is not a quality to be desired in Constitutional jurisprudence. When the Court says "dignity" it would be nice to know with some precision what it means.

It is possible to conceive of several discrete binary sets to try and define the outline of dignity as used in various forms:

1.) A concept of dignity in which that quality is an attribute that inheres in an individual regardless of the actions or perceptions of outside agents, and another in which dignity inheres in the perceptions and opinions of others;

2.) A concept in which dignity depends solely on the actions and choices of an individual, or is instead a characteristic of a class. Does one attain and maintain dignity be association, or by conduct?;

3.) A concept in which dignity can be conferred and withdrawn by government action and one in which it cannot, i.e. can a man be dignified without a state? Is there such a thing as fiat dignity? Can a person retain or lose dignity regardless of how or whether the state conceives of dignity?;

4.) A concept in which dignity is the default assumption of personhood, or is it rather a quality that must be affirmatively established. Is the verb "to dignify" extraneous, since perhaps everyone already has dignity and there is nothing required to further establish it?

The relevance of these categories can be illustrated by considering the current treatment of "offensive" language in civic life. Has one suffered an injury to dignity if he or she suffers subjective offense, or is dignity affronted by restraining the speech of the potential offender? Can the state regulate dignity by deciding who can say what to whom, or will it merely trample dignity by favoring certain emotional responses over others? Is dignity even desirable if it requires others to violate their conscience in order for the state to confer it?

I suspect that what Kennedy would ultimately like to do is to integrate the concepts of dignity and personhood, like Pope John Paul II hinted at. This then implicates the second distinction, that between connotation and denotation. If the denotation of "dignity" might be vague and ambiguous, the connotation can be downright arbitrary. This, again is suggested by the Court using dignity in various ways. Connotation is largely a reflection of popular use; will dignity mean one thing and require one set of Constitutional mandates and prohibitions at one time and an entirely different set when the connotation of the word has changed? Or will the vagueness and ambiguity inherent in the word be used to mold jurisprudence in ideological and exploitive ways, so that liberty might be either protected or imperiled, as the prevailing fashion prefers?

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on June 17, 2015 at 11:56:49 am

DIGNITY as a "concept;" therein do we proceed in the search to find a path to take us where we want to go; something like confirmation of bias.

DIGNITY, when present in human conduct or character, is perceived, not conceived; where perceptions are derived from concepts of "quality" (values, etc.) - always in a relational setting. That a particular condition, action, or characteristic is perceived as derived from concepts does not make it a concept.

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R Richard Schweitzer
on June 17, 2015 at 21:27:48 pm

Sorry to take issue with many of the posters here on this issue but….. (I must here revert to my New York city street urchin vernacular, so pardonnez moi, in advance).

Dignity, while admittedly somewhat ambiguous in conception and linguistic construction / elucidation, IS NEITHER ambiguous in practice / effect or perception (self-perception, that is). Dignity is (or should be) self- created, a function of an intimate knowledge, understanding, and ACCEPTANCE of ONE’s own self.
To accept the current vogue of attributing *dignity* to how others perceive you is akin to requesting from others an appraisal of your physical beauty – one will get somewhat divergent responses, won’t they? And no matter what one does in this or in dignity issues, there “ain’t a damn thing “that you can do about it.
Moreover, to accept the definition that others (with their own motivations and biases) may determine, YOU ARE STUCK WITH IT – that is, if you are sheepish enough to allow your assessment of your own worth to be determined by others. It does, however, fit in quite comfortably with the zeitgeist of the age – “I am a victim” of the perception of others. Woe is me! Those UN-perceptive, bigoted buffoons do not see the true value that resides in me.
Well, if you see value in yourself – EXALT IT!!!!! Do not depend upon the sufferance or the “kindness of others” for your self-worth.
Dignity, as I learned as a young lad, in a rather rough and tumble neighborhood, is “how you carry yourself” – NOT how your neighbor expects you to carry yourself. How does one then determine what is dignified – by following the pro- and pre-scriptions of my neighbor, or of an ideologically committed / biased social group? Recall, if you will, Don Corleone’s advice to the Frank Sinatra based character in “The Godfather” when the singer was crying and complaining about a missed opportunity for a starring role in an upcoming movie – “Be a Man” (or Woman) is what the well-grounded Don advised.
I may receive all the accolades of my neighbors and still not feel as if I have personal dignity.
How, then, may a bunch of Black Robed jurists determine what is ENOUGH to constitute the conferral of dignity upon the allegedly “downtrodden”? Where is the dividing line between the conferral of dignity for the downtrodden and the forceful compelling / restriction of my own personal belief / opinion? Must, MY DIGNITY be diminished because some OTHER feels that the State or some knucklehead such as I is not prepared to “celebrate” their personal life choices.
There simply is NO END to it – so long as we, AND the Black Robes are prepared (anxious?) to determine what constituted both dignity AND the infringement of same.
As a NYC kid, I learned one of the most powerful lessons regarding dignity – and it is a wonderfully useful New York phrase to be employed when someone affronts your “dignity – “Fug’em!” I know who I am. I would prefer that Scalia or Thomas includes this wonderful phrase in their opinion.
Define yourself – don’t be a weenie!!!!

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