Has enough time passed since the joy of Obergefell v. Hodges has given way to fighting over who gets custody of the Barbra Streisand albums? Being all in favor of gay marriage under equal protection analysis, there was nothing negative to say about the outcome, and, indeed, the issue of gay marriage had, in my view, long since been decided when 36 states legalized it. It was here, regardless of what the Supremes had to say about it. Done deal. Get over it.
But now that marriage is available regardless of sexual preference, it’s time to consider a nasty little piece of the rationale that is most assuredly going to come back and bite us in the butt. Dignity. Justice Kennedy has been trying to stick “dignity” in wherever he can find a spot, and he did so again in Obergefell, to much applause.
But, you ask, isn’t dignity a good thing? Who doesn’t like dignity? Jonathan Turley treads gingerly over the problems with a right to dignity.
Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. 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. The courts may not be so readily inclined to find that other loving relationships are, to quote the opinion, a “keystone of the Nation’s social order” when they take less-orthodox forms. But popularity hardly seems like a proper legal guide to whether a relationship is dignified.
While Turley’s approach is soft and subtle, I will tread on it with the full weight of my criminal defense lawyer combat boots in the hope of stomping the crap out of it. Dignity is dangerous. As a concept, it’s just another rhetorical trick that, wrapped up in a pretty bow, would allow anyone to manufacture a right to do whatever they want to do. Even worse, it would allow someone to shut down what others do because it harshes their feelz of dignity.
We’re often confronted with the clash of rights, but at minimum we have a paper that tells us which are superior to others called the Constitution. For example, the First Amendment provides for free speech. That’s an express right, inviolate because the Constitution says so. Some will argue that their right to dignity means that your right to free speech doesn’t extend to “hate speech,” defined as speech that makes hurts their feelz. That makes them feel undignified.
So if they have a right to dignity, it comes at the expense of your right to free speech. But that’s not where it ends.
Other groups outside the lesbian, gay, bisexual and transgender community could invoke this precedent, since the reasoning does not concern a protected sexual-orientation class but rather a citizen’s right to dignity. Could employees challenge workplace dress codes as intruding upon their right to “define and express their identity”? Could those subject to college admissions preferences raise claims that race or gender classifications deny their individual effort to “define and express their identity”? Kennedy’s approach has only deepened the uncertainty over how courts will handle such cases.
As dignity is “elusive and malleable,” as Turley puts it, or meaningless, as I would say, pretty much anything could become captive to a dignity argument. Its ripples would eventually be felt in almost every aspect of our lives, with people demanding their right to dignity from being subject to your right to dignity. Or your right to anything else.
Turley uses the example of a gay couple being denied a wedding cake with a homosexual theme, coming at the expense of the dignity of a Christian baker whose dignity would be compromised by being compelled to bake it. Already, the ACLU has announced that religious freedom has fallen out of favor, even though the free exercise clause is an express right in the First Amendment. It’s picking which rights are worthy of its concern, and religion didn’t make the cut.
Notwithstanding the dolts who argue that the Constitution “means what it says,” we struggle now with the hard rights, the ones reasonably susceptible to definition. Is Pastafarian really a religion? But consider what would become of our efforts to function if a right as amorphous and meaningless as “dignity” was enshrined in the emanations and penumbras of the Constitution?
Take it to the logical extreme and it would likely end up as a transient tyranny of the majority:
Nevertheless, pressure is rising to criminalize forms of “hate speech” or speech that is viewed as discriminatory or degrading to certain groups. Universities increasingly warn students and faculty not just against comments deemed racist but also against an ever-expanding list of “microaggressions,” such as the use of “melting pot” and other terms considered insensitive.
All in the name of dignity, with the insistence of voices claiming that they speak for the majority of our butthurt nation of delicate souls.
Obergefell would be a tragic irony if it succeeded in finally closing the door on morality and speech codes only to introduce an equally ill-defined dignity code. Both involve majoritarian values, enforced by the government, regarding what is acceptable and protectable. Substituting compulsory morality with compulsory liberalism simply shifts the burden of coercive state power from one group to another.
It’s not that dignity is a bad word or an evil concept, but that it is so vague as to become a bludgeon of the majority to justify the evisceration of the rights of everyone who isn’t on board the Official Dignity Train.
Just as the joy of same sex marriage is going to eventually give way to the misery of same sex divorce, the elevation of dignity to a right is going to give way to the criminalization of the exercise of other rights that the overly sensitive decide are affronts to dignity. And even if you are on the good side now, bear in mind that the whims of the majority shift quickly, and you may well find yourself in the undignified position of being on the wrong side later.