No Matter What They Take From Me

by Michael Dorf

My latest Verdict column describes the various forms that resistance to the Supreme Court's same-sex marriage ruling is likely to take. I'll let the column speak for itself on that subject because a landmark case often raises many issues. Accordingly, in this post I'll address an issue raised by Justice Thomas's dissent--one I did not discuss in my prior critique of the dissents in Obergefell.

Responding to Justice Kennedy's repeated invocation of the petitioners' right to equal dignity, Justice Thomas writes in dissent:

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. 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.  . . . 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.

Let's take this one step at a time.

Justice Thomas is of course correct that the Constitution contains no dignity Clause but he appears to have forgotten that he previously joined opinions stating that failure to respect the sovereign immunity of the states is inconsistent with their dignity. Indeed, he authored one such opinion--Federal Maritime Comm'n v. South Carolina Ports Authority--that begins its substantive analysis with the following: "The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." His opinion invokes "dignity" or condemns "indignity" seven times.

Wait, what? Not only is there no "dignity" Clause that protects states; there isn't even a state sovereign immunity Clause. True, there is an Eleventh Amendment that, by its terms, denies federal courts (not administrative agencies as in FMC v. SCPA) the power to hear suits by citizens of one state against another state, but the Court, in opinions enthusiastically joined or authored by Justice Thomas, has not relied on the Eleventh Amendment as the basis of the broad principle of sovereign immunity that it finds in the Constitution, and sensibly not, given the Court's willingness to find sovereign immunity for states sued by their own citizens. The dignity of the states is a judicial construct used to explain a judicial doctrine that implements a value that is not expressly found in any constitutional text.

To be clear, I think that in principle these sorts of inferences can be justified but Justice Thomas--when denying rights to people who aren't wielding guns--thinks that they're just so much jiggery pokery.  Justice Thomas thinks it's his judicial duty to infer a constitutional command to protect the dignity of states but that finding protection for the dignity of natural persons in the Due Process Clause and Equal Protection Clauses is, in his view, judicial usurpation.

What's more, apparently dignity functions very differently for states and natural persons. As the sovereign immunity cases make clear, Justice Thomas thinks that the dignity of states must be protected by judicially enforceable rules. By contrast, the dignity of persons is inherent and can survive any--shall we say--indignity. Thus judicially enforceable rules to protect personal dignity are foolish or worse.

But why? In FMC v. SCPA Justice Thomas writes as though he thinks that, like natural persons, states pre-exist the federal government, and indeed, elsewhere he has said exactly that. If both states and natural persons have inherent dignity, as Justice Thomas thinks, and if states are therefore entitled to judicial protection against actions by the government that are inconsistent with that dignity, why aren't individuals also entitled to such protection?

In light of his views about states, Justice Thomas is hypocritical to criticize dignity of persons for its atextuality. But at least that would be a coherent argument coming from someone else. Justice Thomas's conceptual claim that rights can't protect dignity because dignity is inherent is just a mess.

The very first substantive provision of the German Constitution protects human dignity. The Preamble to the Canadian Bill of Rights invokes "the dignity and worth of the human person" in its first sentence.  Israel lacks a full-blown constitution but one of its very few basic laws protects, you guessed it, human dignity. The Universal Declaration of Human Rights, which serves as a model for national bills of rights throughout the world, repeatedly invokes dignity as a value for interpreting other rights and as an interest to be protected. These documents all treat human dignity as inherent but nonetheless entitled to protection. Does Justice Thomas think that these and other documents--and the global jurisprudence they have spawned protecting dignity--all rest on a conceptual error?

Moreover, Justice Thomas's examples make no sense on their own terms. Let's grant that nothing the government does can rob a person of his dignity. It surely does not follow that the government should be allowed to act in ways that rest on the premise that a person lacks dignity--as by enslaving or interning that person in a camp. What could Justice Thomas possibly mean by citing these examples? That slavery and internment of Japanese Americans during World War II were unproblematic because the enslaved and the imprisoned retained their dignity?

If Justice Thomas wants to say that denying a class of historically disadvantaged people the right to marry treats them as persons with full dignity, he should say that. If he wants to say that gays and lesbians don't deserve to be treated as persons with dignity, he should say that. The first statement would be self-evidently wrong and the second would be monstrous, but at least we would know what point he was trying to make.

Reading Justice Thomas extremely charitably, I suppose he might be trying to say that the concept of dignity doesn't aid in the functional analysis, because to know whether denial of some freedom is consistent with dignity, then one must have some account of the value (or if one is more historically minded, the historical manifestations) of the particular freedom. I think I could even agree with that claim (but not the prior parenthetical alternative), at least in the American context, where we lack a fully developed set of sub-concepts to implement the notion of dignity.

But that would, as I said, be an extremely charitable reading.