DISGRACEFUL DISSENTING OPINION ON DIGNITY

Michael Sean Quinn*

Whether gay men, lesbian women, or anyone else, for that matter,  have a right to same sex marriage was resolved by the Supreme Court of the United States and was determined in the affirmative earlier this year in a classic split opinion. The majority opinion will become studied, revered, reviled, and influential for generations to come.  It is a humane, brilliant, progressive and even profound piece of jurisprudence. It will be unforgotten, often discussed, and frequently cited a hundred years from now.

It is more than merely consistent with the Constitution as it must be understood and applied in the Twenty First Century.  As with many “overarching,” fundamental (or foundational), history-making decisions, at least some political philosophy at home in our country is to be gleaned from or glimpsed in it.

The much simplified, by me, basic argument of the majority was this. The Constitution both presupposes and silently includes and embraces, and/or actually implies (or entails) a range of fundamental rights that are not there explicitly or specifically asserted. For generations courts have been discovering, unearthing, formulating, reformulating, and recasting such rights. Sometimes these processes have involved the use of imagination and intuition, though it must be remembered that the use of imagination in acts of discovery and even confirmation do not imply that what has been discovered is imaginary. (I mention imagination only here because initial reliance on intuition in lawyering and judging is uncontroversial.)

Underlying these fundamental rights is an even deeper one (or set of them), and these can be thought of as [like] a single human right—a right of or to fundamental human dignity.  That basic idea generates more, justifies, or provides the foundation for other fundamental rights. One of those is the right to marry, as the Supreme Court has been repeatedly recognizing for many years in other contexts. 

(It is difficult to embrace the idea that our Constitution is not designed to stick up for and protect human dignity.  In fact that is one of the ideas underlying our whole legal system—underlying the constitution of our country and its jurisprudence. Deeper forms of “American exceptionalism” are based in part on this idea. That is one of the themes in our culture that makes us inhabitants of the “city on the hill.”)

In this case, Obergefell v. Hodge, #114-556, 576 U.S. ____ [135 S.Ct. 2584] (2015) the Court (through its majority) includes homosexuals within that right—the right to marry each other—on the basis of their right to dignity.  In effect, the Court said that they have a right to dignity in conjunction with marriage, like anyone else, and it should not be denied them, because to do that would deny or abridge their dignity.

Technically, then, the Court’s opinion was based on applications of the principles contained in the Due Process Clause and the Equal Rights Clause.  The first of these is generally taken to be the key to the majority’s argument. Myself? I would have put the second first; I think the former derives from the latter in this kind of case.  But then who am I to judge?—a question asked by someone else in a sort of related context, not long ago.
The dissenting opinions were, for the most part, predictable and routine: the Constitution does not contain the word “dignity,” and so it does not protect that right, if it is one; the constitution does not protect would-be rights that can only be vaguely formulated; the constitution does not explicitly regulate marriage; marriage regulation should be left  to the states, and states have rights too; “forever” (for 2000+ years the term “marriage”—and therefore the concept of marriage has almost always in Western civilization referred to one man and one woman); etc. All the usual stuff is there and is well presented, as usual.  
(Of course, for at least that length of time secretly gay men and lesbian women have been living with each other as if married. “Don’t ask; don’t tell” has been a silently established cultural principle in many cultures and civilizations for at least the same length of time. This proposition is seldom asserted by anyone; one wonders why not.)
One part of one of the dissenting opinions, however, ranks down there among the worse opinions—and/or one of the worse arguments ever given in a judicial opinion—ever set forth in a SCOTUS decision.  The author of this opinion—the purveyor of this truly wretched piece of work should be ashamed.

The writing-Justice proceeded in the following way, more or less. Dignity is not a human characteristic which needs protection by law and therefore not by the Constitution. It need not be protected because it cannot be taken or destroyed.  It is innate to human beings and so cannot be snuffed out, eliminated, destroyed, stolen, taken away, stripped away, or abridged. It cannot even be diminished. It is an absolute.   It’s not like having an arm, for example; one’s arm can be cut off, and one remains a human being. The dignity of being a human being cannot be cancelled out; there is no and cannot be a “poof-it’s-gone” action or set of actions.  If you are a human being you have dignity, and no one can take it away from you. If you have it, and all human beings do by metaphysical necessity, you will always have it no matter what.

Even death does not eliminate dignity from a human being; there is simply no more human being in existence to have it. (Curiously, this brand of “innateness” strikes the observer as having a special theological found, but that it not really relevant here, it’s simply a speculative side comment.)  

The Justice who wrote this opinion did not actually use the following examples, but it is easy to conceived his doing so, and they are consistent with the opinion. Indeed, they are probably not just consistent with the argument in the opinion; they are entailed by it. It is easy to see, however, why these paradigms would not be used.

Here they are.  (1) Jews cast into death camps by Nazis were not denied or stripped of their dignity, since it was innate to them. And then there is this one. (2) Slaves in America—and everywhere else—were (and are) not denied their dignity by being made slaves, by being repeatedly whipped and otherwise tortured like unruly dogs,  by being starved for lacks of submission, by having their faces pissed upon, and by having their families sold off. Why not? Because their dignity was innate to them; it could not be stricken or reduced.

Similarly, the “dogs” that did the whipping or the pissing, had as much dignity as anyone—indeed everyone–else, even while doing the whipping, etc., and bragging about it, since they are human beings and dignity is an innate property of all human beings.) Remember. “All [persons] are created equal.” Thus, people cannot strip themselves of their own dignity in any way, ever. What is innate, stays innate.

These propositions are nonsense, of course. It is not clear to me that all human being possess the property of having human dignity.  Arguably they lose it precisely when they act in inhuman ways. Similarly, someone may have it taken from him when he is treated in an overwhelming inhuman manner.  That would be a kind of “theft” of human dignity—not just suppression (although there is that too)—but forced deprivation of human dignity. Some POWs, for example, are stripped of their human dignity.

But let’s suppose that the idea of innateness is correct; let’s do this just for the sake of argument. So we are supposing that something’s being innate to being a person fits together with the something’s being inalienable. And it does make sense to say that the slaves had their dignity and that slavery only sought to extinguish it. In fact, one might say that it was exactly this fact that made slavery so immoral; in other words, it was exactly the fact that slavery was a kind of attempted murder of human dignity on a mass scale t hat made it so immoral.

Of course, someone could argue—indeed some have done exactly that—black slaves did not have dignity at all, ever. They didn’t have it because there were enslaved.  They did have it—ever!—because they were black, and those people were not fully human.  In other words, they were not human enough to have human dignity.

However, let’s take another look at the slavery case. If you suppose that  human dignity is inseparable from being human and is important, then the outrageous offense would not be prying away or somehow eliminating someone’s dignity. Having dignity is what it is, and that is permanent.

Rather, it would be either its reduction (having less that someone else) or the abridgment of having consciousness of, pride in, or less than a few fleeing doubts regarding one’s own dignity. Once state sponsored abridgments of a person sense of dignity becomes correctly conceived, persons with dignity—that is to say all of them–must be thought of as having a right, viz., the right not to have their sense of themselves as human beings with dignity crushed, filed away, or burned at a stake, as it were.  

The distinction between having dignity and being conscious of having dignity is a distinction for academic, philosophy professor literature, not for judicial decisions. The locution “has dignity” is good enough for practical jurisprudence to reach out and include “being consciousness” of having dignity.  It works for the idea of the destruction of human dignity in or for a human person. It also works for the idea of acts causing the substantial reduction in cases of being conscious of having dignity.  The law should be taken to cover this kind of subjective state. It must be remembered that we cannot be the city on the hill without this kind of encouragement, and that which is encouraged must be respected and protected by the city’s jurisprudence.




Michael Sean Quinn, Ph.D., J.D., C.P.C.U. . . .
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