On December 5, the US Supreme court heard arguments in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. This case gives the newly minted Trump majority an opening to rethink public accommodations law. Currently, 45 states have laws that prohibit discrimination by businesses offering public accommodations: loosely, those offering goods or services to the general public. (The federal government claims some scope for jurisdiction under the interstate commerce clause.) These laws have always been controversial. Most recently, evangelical Christians have been arguing that these laws are too broad. The court has a chance to narrow the scope of public accommodation laws: prohibiting discrimination only in more narrowly defined range of essential accommodations.
Last month I made my first visit to Australia and was continually struck by the how different the country is from the US. The scrubby outback, the bouncing marsupials, people saying “no worries” constantly—they all reminded me that I wasn’t in Kansas anymore (or in my home state of Texas). But there was also a difference in what was on the news. Australia’s marriage equality vote was a constant topic, which seemed peculiar; peculiar because the vote was taking place now, when same-sex marriage was legalized in the US two years ago, and peculiar also because of the role of voting. In the US, a Supreme Court decision established marriage equality in 2015.
This post originally appeared November 3, 2015
“Dignity” was invoked no fewer than 10 times by the supporters of gay marriage during the proceedings of the landmark Supreme Court decision legalizing gay marriage. Supreme Court Justice Anthony Kennedy used the term 8 times in the majority opinion of the court. He concludes the opinion of the court with these final words: “[The petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The take-away message is this: any sort of ban on gay marriage undermines the dignity of those couples and/or of homosexuals in general; anything that undermines dignity is unconstitutional.
Yet, not everyone on the bench agrees that the dignity of homosexuals is in peril with state-based restrictions on marriage. Supreme Court Justice Clarence Thomas argued that dignity is not at issue here:
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. (Obergefell V Hodges 2015)
This somewhat surprising point was quickly picked up by The Nightly Show host Larry Wilmore. During the June 29th episode immediately following the ruling, he asks, “Do you even know what slavery is? Slavery is the complete stripping of humanity and dignity. That’s the point of slavery. When do you think slaves were whipped? Whenever they tried to dare to show any humanity or dignity.”
Although Thomas and Willmore appear to disagree, it’s hard to say what the disagreement is really about. There is something right about what each of them says. Thomas is right to point out that when we say that someone has human dignity, we mean they have intrinsic value and that they are equal in value to other humans. Government policies, even policies permitting slavery, cannot diminish this human value. The intrinsic value of the slave and the slave owner is equal, even if the government says otherwise.
Wilmore’s take also gets something right. The slave holder or the slave state undermines the slave’s human dignity insofar as it fails to treat the slave with the respect that dignity demands. Moreover the slave owner forces the slave into a life not worthy of dignity. The central question is, how can you rob someone of something that is inalienable? If the answer is, “You can’t!,” as Thomas insists, then what are we to conclude about the role that dignity plays in explaining why slavery and discrimination are morally wrong?
Martha Nussbaum suggests that perspectives like that of Thomas’ are based in the ancient Greek tradition of Stoicism. The Stoics believed that all humans have intrinsic dignity on account of their moral rationality and this dignity is invulnerable to the misfortunes of life. No matter what harm or humiliation befalls you, your dignity remains intact. Nussbaum identifies a serious problem with the Stoics’ view of dignity: it lacks normative relevance or force. It cannot be used to condemn certain practices or even explain why certain actions are immoral. If Thomas is right, then the concept of a ‘human dignity violation’ is meaningless.
Contemporary ethicists including Nussbaum argue that this view should be replaced by one that takes into account the extent to which material conditions do impact someone’s dignity.
Contemporary views of the concept of dignity tend to recognize it as having both descriptive and prescriptive aspects. Dignity describes a particular human property (the property of having intrinsic value) while at the same time providing moral reason to refrain from enslaving, degrading, or otherwise denying a person equal rights. Recognizing dignity as having these dual roles allows us to explain the wrongness of certain moral practices we otherwise couldn’t. For example, slavery is clearly a violation of dignity. Denying someone a set of rights enjoyed by all others simply because of their sexual orientation is also, for many, a dignity violation.
Thomas’ view of human dignity is at best parochial. He appears blind to the vital prescriptive role that the concept of dignity plays in everyday discourse concerning our duties to each other. Appeals to dignity underlie our reasons to treat others with respect and explain our moral outrage when governments fail to recognize these reasons. At worst, Thomas provides fodder for denying certain minorities equal rights. This view should be jettisoned in favor of one that provides explanation for why practices such as slavery or discrimination are morally wrong. Wilmore is right to point out that dignity is of central importance in debates concerning the treatment of minorities, especially the treatment of minorities by their government.
Kim Davis, a county clerk from Morehead, Kentucky, was jailed recently for refusing to issue marriage licenses to a homosexual couple and two heterosexual couples on religious grounds. “I never imagined a day like this would come –“ she says, “- where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” Continue reading “Kim Davis: Civil Activist or Criminal?”
As the Supreme Court’s decision is announced in the Obergefell v. Hodges case, one cannot help but reflect upon the shape the discourse has taken, and the possibilities for continuing the conversation about LGBTQ equality. The media coverage has focused on the right to marry, but what about the host of other heretofore denied rights of contract, such as the right to divorce, or the right to form parental agreements? Consider a thought experiment, one similar to the content of some of the testimony heard before the Court:
This thought experiment was a lived reality for individuals across our country, and arose as a result of a patchwork system of recognition. A patchwork system of recognition exists when individual states can choose whether to extend rights to groups that have historically been denied them, and if so, the terms under which such rights will be recognized, enabled, inhibited, or blocked altogether. When a patchwork system of recognition is in place, it can give rise to a number of practical and ethical concerns.
The first challenge that arises from a patchwork system is the clear limitation on one’s freedom of action and freedom of movement that are antithetical to the spirit of a liberal democracy. In this regard, the state has two corresponding duties derived from the general citizen’s freedom of movement: a guarantee that the State will protect the right to travel across city and state lines, and ensuring a citizen’s right to be treated equally to those who are already residing in the area (e.g., not facing unduly burdensome restrictions placed on the right to vote, freedom of expression and association, and that the public acts of one state will be recognized and upheld in other jurisdictions). While this practical constraint is now lifted for those who are married in one state and heretofore unrecognized in others, what of parental agreements and second-parent adoption rules? There are plenty more barriers to full equality and recognition in the contractual agreements that mediate familial life and personal relationships.
The second, more profoundly philosophical, challenge presented by a patchwork system is the effects on one’s personal identity—to what extent can I conceive of myself as autonomous if the state blocks my ability to enter into certain kinds of agreements and be recognized as I wish to be? The state mediates our personal relationships—those between romantic partners and those between citizens and their children, most notably. Insofar as regulatory mechanisms (i.e., contracts or legislation) reflect how individuals see themselves, or at least provide measures to align identity with recognition, this mediation can appear seamless. However, where recognition and uptake fail, the result is narrative friction. My life’s narrative, the self-told story that helps us maintain a sense of who we are over time, becomes interrupted because of state interference. Marital status and parental status, like a person’s sexual identity is a constitutive part of our lives and determines how we constitute many aspects of our practical identities. There are normative expectations and judgments made about one’s behavior, informing how others treat you.
As we move forward, and take up the next battle in the barrier to LGBTQ equality, let us keep in mind that we are legislating people’s lives, their identities, and whether they are recognized throughout the entire country. How does contract law, in itself, dehumanize the texture of human relationships? To what extent should we be mediating our relationships in this way? These questions should be part of the broader conversation concerning the next steps in the long road to equality.