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Friday, July 3, 2015

Dignity in light of Obergefell: What Thomas just doesn't get

Image: A black person's hand and a white person's hand
forming a heart. 
Someday somebody's gonna ask you 
A question that you should say yes to 
Once in your life 
Maybe tonight I've got a question for you 
-- "Question," Old 97's

Control over your own life. Since we were old enough to recognize the concept, each one of us has wanted this. We wanted it long before our parents, who knew better, were willing to give it to us. And when they started to give us control, it was incremental-- you can choose what to wear today. You can choose what electives to take in school. You can choose where to get a job, assuming they'll hire you. You can choose where, or whether, to go to college, assuming you qualify and can afford it.

And when you're 18, you can choose everything else (except what to drink in America, for reasons that aren't exactly clear). It's a rather arbitrary point at which society decides that an individual is going to have as much control over his or her life as he/she will ever have, but a point had to be chosen. To be an adult is to make your own choices. To be in control of your life, and recognized as such by society.

This control over your life is called autonomy. The mutual recognition of such, between you as an individual and the society in which you live, is called dignity.

There is a competing notion of dignity which is outdated, but persists largely for religious reasons. According to this notion, dignity is an immutable characteristic of humankind by virtue of membership in our species. We all have it, not just from birth, but from conception until...well, forever. It sets humans apart from non-human animals, and is the foundation of free will and moral responsibility. As Kant put it, "Morality, and humanity as capable of it, is that which alone has dignity."

There's a recognition in this view that dignity is based in moral autonomy, but that autonomy is believed to be inherent in humanity, which would entail that a) all humans have dignity, and b) cannot ever be deprived of it, c) because they are human.

In reality, of course, we know that this is not true. We have seen the gradual erosion of this concept of dignity, which has correlated with certain realizations that are largely the result of scientific research. We know, for example, that humans are not the only species which makes meaningful choices-- even moral choices. We know that mental mechanisms for making such choices exist in our brains, which are themselves far from immutable-- the capacity must develop (their ontogeny) according to how they evolved (their phylogeny), it may malfunction, and it will inevitably die, at the same time the organism itself does.

There's no particular reason to believe that dignity will continue beyond our death, if the machinery which makes meaningful control over our lives possible is disabled at that time....and by all appearances, it does. As anyone with experience around people with degenerative brain diseases knows, it can easily happen prior to death.

For these and other reasons, our understanding of dignity has evolved, along with our understanding of what it means to be human and, by extension, to be a person-- a person being a legal entity, with rights and responsibilities that are due to an individual who exists in a society of other people.

A person is someone who should be treated with dignity. They should be treated by their government as if they are autonomous agents, in control of their lives, because to be treated by your government this way enables you to be autonomous and in control of your life. It enables you to take control. To make meaningful choices. To pursue happiness.

This is the sort of dignity described in the decision for Obergefell v. Hodges, authored by Anthony Kennedy.

He describes1 how government came to treat women with dignity with regard to marriage:
Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.
 He continues:
These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. 
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process. 
This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.
The decision is an analysis in two parts:
  1. a meditation on the significance of marriage in the context of an individual's dignity, which is to say his or her control over his/her life and equal ability to pursue happiness in that life ("A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy"), and
  2. a description of the injustices that gay and lesbian Americans have been dealt in having their dignity denied at every turn by their government, specifically in their equal right as people to be able to make this one specific critical choice in their lives-- to be married ("There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 ('[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State')," "Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.")
The conclusion is basically this: To have dignity acknowledged by one's government is to have the freedom to take part in the institutions considered fundamental to society, to be able to choose for oneself as an equal citizen to commit to marriage. Homosexual Americans have, to date, been denied this dignity at the federal level. That ends now.

In his dissent, Clarence Thomas made what might seem to be the gobsmacking argument that the dignity of homosexuals has been completely unaffected by the denial of their equal right to marry:
Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. Ante, at 3, 13, 26, 28.8 The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity. 
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built. 
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. 
The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.
Okay, for just a moment, let's imagine that the "the majority" did, in fact, reject the notion of innate dignity (even though it did no such thing, at least in the body of the decision). Let's imagine that dignity is a quality that every human being is born with and dies with, purely because he or she is a human being, and it can neither be bestowed upon us nor deprived from us by any other human being or body of such entities.

In fact, let's go with an analogy to something that we acknowledge is innate to being a human, at least for the time being: optimal body temperature. The average normal body temperature is 98.6 degrees. This is a fact about human beings which no human can (currently) change.

Now, let's imagine that the government was in the business of awarding materials for temperature control to its citizenry based on factors like race, gender, and sexual orientation.
  • Winter: Are you white? Here's some firewood. Are you male? Take this coat. Are you straight? I've got kerosene for you!
  • Summer: Hey white, male, straight people, come and get your fans, your sunblock, and some bags of ice! Take the 20 pounder; you'll need it-- it's supposed to hit 100 tomorrow!
Imagine that the Supreme Court came along and decided that women should get firewood, too. And then it said that interracial couples should also get fans to use when it's hot. And then, one day, it declared that there is no reason at all why gay and lesbian Americans, possessed of an equal need to maintain their bodies at 98.6 degrees as anyone else of any other race, gender, or sexual orientation, should be likewise afforded a damn coat when it's snowing outside.

I know, I know, it's a silly analogy. But it makes my point adequately, which is that even if dignity is something innate to every human being, in order to treat citizens equally under the law as the 14th Amendment requires, the government must, if it is going to afford benefits of temperature control to anyone at all, afford them to minority members of the population whose need for this innate characteristic to be acknowledged by their government does not differ in the slightest from any other member of the citizenry by virtue of their minority status. And such is decidedly, irrefutably, the case if the innate characteristic is dignity instead of optimal body temperature, and the form of acknowledgement is the right to marry rather than to be provided sunblock or kerosene.

For a less silly but very important perspective, see George Takei:
I was only a child when soldiers with bayonetted [sic] rifles marched up our driveway in Los Angeles, banged on our door, and ordered us out. I remember my mothers’ tears as we gathered what little we could carry, and then were sent to live for many weeks in a single cramped horse stall at the Santa Anita racetracks. Our bank accounts were frozen, our businesses shuttered, and our homes with most of our belongings were left behind, all because we happened to look like the people who had bombed Pearl Harbor. 
Executive Order 9066, signed by President Franklin Delano Roosevelt, was issued on the premise that anyone of Japanese descent could not be trusted and was to be treated as an enemy, even those of us who were American citizens, born in this land. We were viewed not as individual people, but as a yellow menace to be dealt with, and harshly. The guns pointed at us at every point reminded us that if we so much as tried to stand up for our dignity, there would be violent consequences. . . 
For many, it was indeed a great loss of self-worth and respect, a terrible blow to the pride of the many parents who sought only to protect their children from coming to harm. Justice Thomas need have spent just one day with us in the mosquito-infested swamplands in that Arkansas heat, eating the slop served from the kitchen, to understand that it was the government’s very intent to strip us of our dignity and our humanity. Whether it succeeded with all of us is another question: There was a guiding spirit of what we called “gaman”—to endure with fortitude, head held high— helping us get through those terrible years. At the end of it all, each internee was handed a bus ticket and twenty-five dollars, on which we were expected to rebuild our lives. Many never did.
For these purposes, it doesn't matter whether you say "The government tried to take our dignity" or "The government denied our dignity."  Takei says both. Thomas was deliberately side-stepping the point by making it all about whether Whitney Houston was right that no matter what you take from me, you can't take away my dignity. (Because "dignity" in that sense actually means "pride," and pride really is a self-assessment)

You can take away someone's freedoms. You can take away their equality. You can take away official recognition that they are people-- adults, citizens, agents-- with the right to ask the person they love to marry them, or the right to be asked that question. You can deny their dignity by denying them the right to join in that bond, which is mutually acknowledged, by those who think gays have the right to marry and those who do not, to be foundational in our society.

So of course, in the end, what you're really arguing about is not whether the government can or should give dignity to gays, but whether it should acknowledge that dignity in the way that gays are asking for. In the way the government is perfectly capable of acknowledging.

And in the end it did, Thomas's attempt at derailment notwithstanding.

Postscript:

Thomas's was the most important dissent to me because of the discussion of dignity, about which I have a strong interest. Reading the decision itself was impactful to me as a person who has never been married, but who has, simply by accident of birth, always had the right to marry a partner with the expectation that such marriage would be federally recognized and my standing in it considered equal to that of my partner. I think that anyone who has ever considered marriage should read the ruling, regardless of their current status, for a better understanding of what marriage means and why people would want it so badly, and why they would feel like partial citizens in their own country for being denied it.

I meant to write about this article in the post, but found the current carrying me away from it and didn't manage to work my way back. I might still have things to say about it, but just in case, definitely give it a read anyway.

1 Some internal references removed for clarity. 

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