What Clarence Thomas Meant

Original Article

In the public square, many misuse the word “dignity” by conflating its subjective and objective meanings. Some see it as descriptive of behavior, an idiosyncratic concept that can vary widely across cultures. Thus, when I am on the dance floor, few would say I exhibit dignity. But my herky-jerky movements and the crunching of my wife’s toes do not detract from my human dignity in the objective sense—my intrinsic moral worth.

The term “dignity” is also sometimes used as a synonym for pleasing aesthetics. This is what assisted-suicide advocates mean when they speak of self-destruction in the face of illness or disability as “death with dignity.” They believe that in cases of “pointless suffering,” dying from a drug overdose is the more appealing alternative to a natural death. Whatever one thinks of that argument—I oppose it vehemently—even the most painful life or the messiest manner of death does not detract from one’s intrinsic human dignity.

And now, in Obergefell v. Hodges—which established a constitutional right for same-sex couples to marry—Supreme Court Justice Anthony Kennedy has sowed further confusion by inventing a “right to dignity” that covers the subjective crafting of self-identity.

Writing for the five-member majority, Kennedy wrote:

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.

What does that mean? We won’t know its full implications for a long time. The language of “choices” and “dignity” are too fuzzy to pin down with precision. But the statement now has the power of law, and it will serve as a launching pad in years to come for novel legal arguments seeking to imbed all manner of personal behaviors and self-declared identities into this newly invented constitutional right. As law professor Jonathan Turley wondered in the Washington Post:

Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify. It certainly appears as if Obergefell extends this protection because same-sex unions are now deemed acceptable by the majority. . . . But popularity hardly seems like a proper legal guide to whether a relationship is dignified.

In contrast to Kennedy’s sloppy deployment of the D-word, Justice Clarence Thomas’s Obergefell dissent issued a clarion defense of “human dignity” that applied the term in its properly objective and historic perspective. In the heart of Thomas’s opinion lies the immortal “all men are created equal” phrase from the Declaration of Independence:

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

Some—most notably (and nastily) actor George Takei—flayed Thomas for his dissent. But, for the most part, Thomas’s critics misunderstood him to be asserting that slavery was somehow “dignified.” To the contrary, the justice defended human dignity as an objective and inalienable quality, intrinsic to and inextricably suffused in each and every one of us. Ironically, Takei’s Facebook page claims that he is “a believer in, and a fighter for, the equality & dignity of all human beings”—in other words, precisely what Thomas defended.

One of the best and most succinct descriptions of this principle that I have found was published in a bioethics journal—in an article opposed to applying the concept in medical and health policies. In “Undignified Bioethics,” Alexander Cochrane describes “dignity” as a “property”:

Under this conception, the possession of dignity by humans signifies that they have an inherent moral worth. In other words, because human beings possess dignity we cannot do what we like to them, but instead have direct moral obligations towards them. Indeed, this understanding of dignity is also usually considered to serve as the grounding for human rights.

In this sense, slavery cannot strip its victims of their inherent dignity, and yet it is evil because it denies the inherent human dignity that each of its victims possesses. Similarly, Holocaust victims did not lose their dignity by being numbered and tortured, worked, starved, and gassed to death. That is why we transformed death camps such as Auschwitz into solemn monuments for homage and pilgrimage. And, of course, each and every LGBT person is equally endowed with the same human dignity, which, as Thomas reminds us, exists regardless of the state’s laws governing domestic relations.

As the definition of “dignity” becomes more and more elastic in the rights context, the core principle of Western Civilization that we each possess objective dignity is being diluted by its conflation with subjective notions of behavior and life-style preferences. Thomas has done us all a great service by refocusing our understanding of human dignity as an intrinsic attribute with which we are all infused—an inalienable and inherent moral value that can never be lost, stolen, or given away.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.