In his dissent in Obergefell v. Hodges, the ruling that made same-sex marriage a constitutional right throughout the United States, Justice Clarence Thomas rejected the majority’s rationale that gays and lesbians deserve “equal dignity in the eyes of the law.” Expanding on Chief Justice John Roberts’ rather snarky line that “there is … no ‘Companionship and Understanding’ or ‘Nobility and Dignity’ Clause in the Constitution,” Justice Thomas denied that political institutions have anything to do with human dignity. Dignity is not a function of state policy, he argued; rather, it “has long been understood in this country to be innate.” The government can neither cultivate it nor remove it:
[H]uman 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.
This is the jurisprudential equivalent of the old schoolyard canard, “Sticks and stones can break my bones, but names can never hurt me.” Of course names hurt. Verbal abuse can, in fact, lead to more painful and more enduring scars than do scrapes or bruises. In his 2007 memoir, My Grandfather’s Son, Justice Thomas discusses countless episodes in his life that have left him “bitter” and feeling “put in his place.” And he writes of the harm dealt to him by Affirmative Action:
I’d graduated from one of America’s top law schools — but racial preference had robbed my achievement of its true value. I’d been nominated to sit on the Supreme Court — but my refusal to swallow the liberal pieties that had done so much damage to blacks in America meant that I had to be destroyed.
The same man who wrote these words fails to see how it’s possible for a third party to strip a citizen of his dignity? Justice Thomas’ position in Obergefell is plausible only if construed as a truism according to which all human beings possess an inviolable dignity. As a matter of moral status, that is a compelling claim. But as a description of subjective reality, Justice Thomas’ position falters. The fact is that people can be made to feel like second-class citizens, or worse. When excluded from social institutions that other people enjoy, it’s not just the missing tax breaks, inheritance rights and hospital-visitation privileges that rankle. It’s the very idea that the state fails to countenance your marriage that makes you, justifiably, indignant.
Justice Thomas cites the Declaration of Independence as the source of the idea that “all men are created equal.” But if he would have read on a bit, he would have found that among the “unalienable rights” of man are “life, liberty and the pursuit of happiness.” And then a key line: “[T]o secure these rights, governments are instituted among men.” There it is, plain as day: Human dignity is not just something the founders believed is latent in every human being. Dignity implies duties on others. Dignity is a feature of the individual that must be upheld by neighbors and respected by governments.
Given his oddly dismissive posture toward the role of governments in recognizing and protecting citizens’ dignity, it is curious that Justice Thomas was the only conservative justice who joined the liberals this spring in allowing Texas to refuse to print a license plate emblazoned with a Confederate flag. The majority opinion by Justice Stephen Breyer in that case did not feature airtight reasoning, to put it politely, but the result was laudable, especially in the wake of the Confederate-flag-inflected murders of nine black worshippers in a Charleston, South Carolina, church. But if there is no such thing as a politics of dignity, it is hard to imagine why anyone would have wanted to keep this symbol of racist hatred and violence off of Texas highways, or why legislators in South Carolina voted to lower the state’s Confederate-tinged flag for good, effective today.
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