—Michèle Finck, Fellow, London School of Economics, and Lecturer, Keble College, University of Oxford.
Human dignity is currently somewhat of a buzzword in constitutional and human rights studies. While resonating well on an intuitive level, the concept is however tricky to define in legal terms – underlining the conceptual vagueness or flexibility that characterizes it. Despite (or maybe because of) its inherent conceptual flexibility human dignity has appeared in a number of important contexts in recent years. Much scholarship has emerged on the issue and the concept is increasingly making appearances in judicial decisions. This may surprise as there are very few legal orders that, such as Germany, recognize human dignity as a fully justiciable human right.
One area in which human dignity has gained much prominence is that of gay rights. Not only debates on the topic but also judicial decisions, such as those concerning marriage equality or non-discrimination, have often invoked the concept. I examine this transnational trend in further depth in a paper that is forthcoming in ICON soon. There I argue that by virtue of its strong intuitive connotation, yet weak conceptual core, human dignity serves as a justificatory tool allowing judges to change the interpretation of existing legal provisions to further gay rights in light of socio-cultural change. This blog post will not engage with this wider trend but rather focus on one particular decision, Obergefell v. Hodges, and try to understand the role human dignity plays in this context.
Just before the summer break the U.S. Supreme Court endorsed a constitutional right to same-sex marriage in Obergefell v. Hodges. The question before the Court was whether the Fourteenth Amendment of the U.S. Constitution requires a State to license a marriage between two individuals of the same sex and recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed outside of that State. On 26 June 2015 the U.S. Supreme Court answered this question in the affirmative. Rather than deciding the case unanimously, it was split 5-4. The interesting aspect for my purposes is the majority decision, delivered by Justice Anthony Kennedy, the Court’s current swing vote. In his opinion, Kennedy heavily relied on human dignity, as he had done in previous gay rights decisions. He drew on the concept in Lawrence v. Texas, the decision that invalidated a Texan sodomy law, and in United States v. Windsor, the 2013 decision that struck down a provision of the federal Defense of Marriage Act 1996 that defined marriage as the legal union between one man and one woman. Commenting on Windsor, Cass Sunstein argued that:
The foundation of the court’s opinion, and its real importance, lie in its insistence on human dignity as a constitutional value, one that stands at the heart of our longstanding commitment to equal protection of the laws.
Noticeably, however, human dignity is not to be found in the U.S. Constitution. Nonetheless the majority opinion in Obergefell v. Hodges made frequent reference to the concept. It alluded both to the dignity of the institution of marriage but also the human dignity of homosexual individuals. Reflecting on marriage, Kennedy stated that ‘The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.’ He then proceeded to describe how social perceptions of homosexuality have rapidly changed over the past decades:
Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions.
In holding that the U.S. Constitution recognizes the right to same-sex marriage, Justice Kennedy considered that there is ‘dignity in the bond between two men or two women who seek to marry.’ As a consequence, he held:
As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. 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.
These excerpts show that human dignity functioned as a tool allowing Kennedy to formulate the Court’s decision that there is a constitutional right to same-sex marriage in the United States. While it is difficult to deny that the language he chose adds to the beauty of the opinion, the question remains what human dignity is and what role it plays in a Supreme Court decision, given its absence from the constitutional document. In particular, one might wonder why the opinion doesn’t just rely on liberty and equality, two notions central to the U.S. Constitution and the Court’s adjudicatory practice. These concepts certainly do play a role but dignity clearly steps into the motivation, too.
I believe that the key to understanding the role of human dignity in Obergefell v. Hodges but also the U.S. Supreme Court’s gay rights decisions more widely is that these decisions change existing interpretations of the U.S. Constitution. While its text remains the same, the interpretation thereof changes. Liberty and equality have been key components of the U.S. Constitution for much longer than homosexuality has been socially accepted. Importantly, however, the U.S. Supreme Court had in the past established that they did not stand in the way of blatant discrimination against homosexuals. It suffices to mention here the 1986 U.S. Supreme Court decision in Bowers v. Hardwick that upheld a Georgia statute criminalizing sexual intimacy between consenting homosexuals. The word of the U.S. Constitution has not changed in the meantime but social perceptions, and judicial interpretations, have. Dignity, by virtue of its very conceptual flexibility, has the ability to translate such change. It is a tool that helps justify a judge’s decision to alter the interpretation of existing legal concepts in light of socio-cultural change. Similar evolutions can also be perceived beyond the U.S. as an increasing number of jurisdictions move towards the consecration of gay rights.
It can be expected that over the next months and years commentary will emergence that can do more justice to the interpretation of dignity in Obergefell v. Hodges than this brief blog comment can. While some may welcome the technique, others will not. Indeed, some skeptical voices have already emerged, labeling Justice Kennedy’s reliance on dignity as ‘dangerous’ as it empowers judges to decide ‘whose ‘dignity’ they wish to prioritize.’
Suggested Citation: Michèle Finck, Human Dignity in Obergefell v. Hodges, Int’l J. Const. L. Blog, Sept. 4, 2015, at: http://www.iconnectblog.com/2015/09/human-dignity-in-obergefell-v-hodges