Today’s US Supreme Court decision to invalidate same-sex marriage bans has been rightly heralded as historic. On a day when the world desperately needed good news (migrants dying in Europe, tourists murdered in Tunisia, worshipers slaughtered in Kuwait and a beheading in France) it was welcome relief. Freedom has an intrinsic value.
However, when arguing against the ruling, Justice Clarence Thomas defines human dignity only in only its “innate” or “inner core” sense (i.e. something all humans are born with and cannot lose). What then happened to dignity as “freedom” (something which can all too easily be lost)?
I have written before why freedom matters – on the day of the Charlie Hebdo attack. Fear crowds the mind, it makes simplistic solutions to complex problems seem appealing. This is why it is important to look beneath stones. Not all the US Supreme Court Judges were of the same mind. Justice Clarence Thomas registered “a fervent dissent” to the same-sex marriage ruling and backed his argument by evoking the concept of “dignity” as well as the Magna Carta and the work of John Locke. He wrote:
“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved… the government cannot bestow dignity, and it cannot take it away”
In other words, according to Justice Thomas, those petitioning for same-sex marriage had not lost their liberty, or their innate dignity, “they have been able to travel freely around the country, making their homes as they pleased”. Now I would agree with the Justice that homophobia in the USA, or some other countries, is not at the level of persecution suffered by slaves, or even the discrimination that many other minorities face in the USA today. Although there are some countries where direct parallels can be drawn. But that is not the point. The point is that the judge wishes to define human dignity purely in terms of being innate and irreducible to the human condition regardless of circumstance.
But there is no single definition of “dignity” in society or even in law. Some scholars have traced the legal roots of “dignity” back 2,000 years to Roman law, where it meant much more about “status” than any innate sense of human worth. It is true that at the time when the US Constitution was written, leading thinkers such as John Locke and Thomas Paine had started to define dignity more as an essential core within humanity and we owe much to this thinking today. From Emmanuel Kant to Chancellor Merkel, or many of the excellent speeches given by the current Pope, it is a good thing to regard all human beings as being equal in “dignity and in rights”.
But this is not the end of the debate. There is a very honourable tradition, no better represented than Martin Luther King or Gandhi, that has seen dignity as “freedom”. If the USA means anything to world, in its best moments, then it is the values of freedom and liberty. For Justice Thomas to define dignity (or rather not to define dignity at all) purely in its “inner core” sense denies that there are at least three competing definitions in law (“status”, “inner core” and “liberty”) is misleading and is to evoke dignity as a “bedrock” to end all argument, when actually it is the contradiction between definitions of dignity that really matters.
This is what the Supreme Court ruling means. The majority opinion was that same-sex marriage ban was predominately an issue of liberty. This is also a ruling that recognises dignity in these terms. It is true that dignity has a “inner core” sense which must be legitimately argued, but the ruling of the Supreme Court was not one that ignored the true meaning of dignity – rather it balanced the definitions and came to a sound ruling.
Freedom matters – human dignity requires nothing less. The majority opinion of the Supreme Court says it best, in the words of Justice Kennedy:
“It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”