In its 5-4 decision to require states to recognize same-sex marriageon 14th Amendment grounds, the Supreme Court's majority opinion, written by Justice Anthony Kennedy, included a lot of powerful language about the dignity of Americans who want to marry someone of the same sex. Like this:
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation ... There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.
But Justice Clarence Thomas (who was predictably one of the four judges in the minority) seemed to think all of the "dignity" business was ridiculous. He explained this by insisting that there is nothing the government could ever do that would affect a person's dignity.
Here's some of his dissent:
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. When the Framers proclaimed in the Declaration of Independence that "all men are created equal" and "endowed by their Creator with certain unalienable Rights," they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
Okay. So he thinks human dignity is "innate" and the government can't touch it. That's a very nice sentiment, but it arguably doesn't have a lot of real-life resonance for people who feel they've been stripped of their dignity by being prohibited from doing something — like getting married — that all other Americans are allowed to do.
But then Thomas, who is the court's only African-American justice, made his feelings about the topic even more shockingly plain (emphasis added):
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."
Yes, you read that correctly. He said that slavery did not have any impact on enslaved people's dignity.
Thomas is absolutely right that the Constitution does not explicitly give the government the right to "bestow dignity." But here's the thing: The court's majority never said it did have this right. Rather, it cited a case to support the principal that the protections of the 14th Amendment — the basis of the decision — cover "intimate choices" (like marriage) that are central to human dignity:
The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.
Beyond using a bizarrely narrow definition of the word "liberty," on a practical note, Thomas's idea that the government is incapable of doing anything that would affect a group of people's sense of dignity is just silly. You only have to read these gay couples' stories about the emotional impact of the decision to understand that.
Luckily, for people who want to make a commitment with someone of the same sex — and for African Americans, for that matter — most Americans and Supreme Court justices disagree with Thomas when it comes to the real-life impact of government actions.
