Justice Thomas, Marriage, and the Question of Dignity

Justice Clarence Thomas has rattled a few cages with his dissent in the Obergefell same-sex marriage case. Addressing the claim that for government not to revise the definition of marriage to include same-sex couples undercuts their dignity, Justice Thomas argued that dignity is not something government can take away. He included in his argument the example of slavery. Slaves did not lose their dignity for having been slaves, Thomas argued. Since dignity is not the kind of thing government can bestow, he contended, it isn’t the kind of thing government can take away.

Enter George Takei, Mr. Sulu of Star Trek fame. Takei, a gay man and a staunch proponent of same-sex marriage, accused Justice Thomas of being a “clown in black face”—a reference to the now largely obsolete and socially verboten practice of white actors donning black makeup to depict comedic black characters. Since Justice Thomas is black, to describe him as a clown in black face is, in essence, to say he isn’t really black, in the sense that he doesn’t behave in the way black people ought to behave, according to Mr. Takei’s view. Takei, whose Japanese American family was interned during World War II, took issue with the idea that government action cannot affect human dignity.

On the Fourth of July, Takei apologized for his description of Justice Thomas, stating in part: “While I continue to vehemently disagree with Justice Thomas, the words I chose, said in the heat of anger, were not carefully considered. … But my choice of words was regrettable, not because I do not believe Justice Thomas is deeply wrong, but because they were ad hominem and uncivil, and for that I am sorry.”

Setting aside Takei’s highly charged characterization of Justice Thomas, and considering that he still thinks Justice Thomas is wrong in substance on the nature of dignity, what should we make of Justice Thomas’ claim about human dignity? Is it something government cannot take away?

Innate and acquired dignity

Justice Thomas referred in his dissent to “innate human dignity”. The term “innate” means human beings possess dignity (or value) simply by virtue of being human—not as something they acquire. In that sense, the question comes down to whether human dignity is innate or acquired. Are people to be valued simply because they are human or because of some value they come to acquire?

The Declaration of Independence refers to “self-evident truths” the signers held, which included the notion that “all men are created equal” and that “they are endowed by their Creator with certain inalienable rights”. Although we might debate to whom “all men” originally referred, nowadays it is generally understood to refer to all human beings. (Even Jefferson, who drafted the Declaration, thought there was a basic human equality, one even slaves possessed. But that’s another conversation.)

If all human beings are fundamentally equal and possess certain inalienable rights, as the Declaration of Independence asserts and probably most Americans affirm, we can say all human beings have a certain basic dignity as human beings. Since they possess this dignity by virtue of being human, this dignity is innate. It is such innate dignity to which Justice Thomas referred when he wrote that slavery did not diminish the slave’s human dignity.

But there is another way we sometimes refer to dignity. This is acquired dignity (or value). One aspect of innate human dignity is the natural capacity to acquire dignity through human actions. Of course how much dignity is acquired, and what form it takes, varies. Thus, while innate human dignity is the same for all human beings because they all, by definition, possess a common human nature, acquired human dignity varies.

Mother Teresa of Calcutta and Joseph Stalin both had innate dignity. Nothing they did, nor anything anyone else did to them, could take away that dignity, so long as they lived. Killing them would, arguably, take away their innate dignity by removing them from among the living— although those who affirm an afterlife might add that even death, in a sense, doesn’t obliterate innate dignity.

However, Mother Teresa’s and Stalin’s statuses differed when it came to acquired dignity. Mother Teresa’s holy and compassionate life was more dignified than Joseph Stalin’s murderous and despotic life. The potential for good inherent in human nature was actualized—-made real and not just potential—to a much greater degree by Mother Teresa than by Joseph Stalin. Indeed, Stalin’s vicious actions worked against the realization of his potential for good inherent in his humanity.

A virtuous person can make repeated evil choices and become vicious. A vicious person can make repeated good choices and become virtuous. In that sense, dignity can be acquired and lost. A person can act in a way that is “beneath his dignity”, either in the sense of acting in a subhuman fashion and thus contrary to innate human dignity, or in a manner beneath the level of one’s acquire dignity. In the case of engaging in actions beneath one’s innate dignity, one would seem not to lose his dignity, because it is innate, but one does act in a way that doesn’t allow one to realize some aspect of the potential for acquiring dignity that one has due to human nature.

A teenager, for example, who spends all his time eating fast food and playing violent video games acts beneath his innate human dignity, because he acts contrary to his health and his intellectual and social development by devoting all his available time to food and video fun. A teenager who has acquired the intellectual and moral dignity of a good student and a virtuous young woman would act beneath her acquired dignity if she decide to spend her senior year of high school cutting classes, getting drunk, stealing from convenience stores, and sleeping around.

Thus, while innate dignity cannot be lost by our actions (or anyone else’s), we can act “beneath” it—we can act in ways contrary to our innate potential to acquire dignity or value. What’s more, we can lose acquired dignity by choosing to pursue things at odds with our acquired dignity.

Further aspects of acquired dignity

What about the situation to which George Takei referred—actions harmful to others, including depriving people of something to which they have a right? Does this harm or undermine their dignity?

We have seen that by definition it cannot harm innate human dignity. Slavery, racism, torture, sexism, poverty, and so on—whether engaged in only by individuals or socially approved and promoted—do not deprive a human being of his innate human dignity. At the same time, it would seem that such things can affect acquire dignity. How so?

To see clearly how this can be the case, we must extend the notion of acquired dignity. Thus far, we have spoken of acquired dignity in terms of moral virtue. Mother Teresa had more moral dignity than Joseph Stalin. But there are other dimensions of acquired dignity. That is, there are other dimensions of human potentiality, the realization of which involves acquiring a kind of dignity other than moral dignity.

A simple example is health. Health is a good thing, a value. Acquiring health is consistent with human dignity. Human beings have an innate potential for growth and for the integration of the various aspects of their physical and mental being. We call such growth and integration “health”. Although old age and illness threaten health, the sick person retains his innate dignity as a human being. What’s more, through medical care and exercise, he can often overcome some of the obstacles of old age and illness—not forever, of course; we all eventually die. But for a time, perhaps. There is a certain dignity associated with health.

Similarly, a desperately poor person suffers the deprivations associated with poverty. He lacks adequate food, perhaps clothing and shelter. He lacks the enabling means to realize the potential of his mind and his ability to contribute economically to the good of others. In many other ways, extreme poverty frustrates a human being’s ability to develop as a person. There is a certain dignity associated with economic well-being.

In the cases of illness and poverty we have instances of things that can affect our ability to develop our potential bound up with our innate human dignity. These evils affect our ability to acquire a certain kind of human dignity—to come to possess certain goods that enhance the value of our lives beyond what value they innately have. Because things contributing to health or economic well-being are within the power of others to bestow or to help acquire, others can contribute to, or harm, our acquired dignity.

The dignity of marriage

In the debate over same-sex marriage, advocates claim that dignity demands that the state recognize same-sex unions as marriage. Failure to do so, in their view, is to treat same-sex couples as if they lacked human dignity. It is a failure, the argument goes, properly to honor the dignity of such unions and the persons who establish them. On this view, people who love each other in a romantic way ought, if they so desire, to be allowed the dignity of married persons, regardless of whether they are a same-sex couple or an opposite-sex couple.

To put the matter in terms of acquired dignity, by preventing same-sex couples from receiving the legal and social status of marriage, the government would be acting contrary to same-sex couples’ dignity—not taking away their innate dignity but preventing them from acquiring a certain kind of dignity.

Opponents of same-sex marriage see things differently. Legally and socially recognizing same-sex marriage, they contend, is contrary to the dignity of marriage, given the legal and social purpose recognizing a union as marriage is supposed to serve in the first place. Treating opposite-sex unions the same as same-sex unions contradicts the special purpose opposite-sex unions serve in pointing to, and often instantiating, the good of new human beings coming into existence (procreation). Since such new human beings possess an innate dignity, the interpersonal bodily union by which human beings are conceived has a special dignity, one worthy of being honored and valued as such. Only opposite-sex couples are capable of such a procreative type of bodily union.

What’s more, the wholistic union of man and woman (a conjugal union), which includes a bodily, “one flesh” union, has a dignity that ought to be recognized and honored for itself. It is a unique kind of bodily union and forms an essential part of the whole-life union only a man and a woman can form. Traditionally, the legal and social form that such honor and valuing has taken is the institution of marriage.

On this view, whatever dignity same-sex unions can be said to have, they do not have the same kind of dignity as opposite-sex unions and therefore same-sex unions ought not to be honored as if they did. The principle of justice, according to this argument, regards different things—same-sex unions and opposite-sex unions—differently, with the latter being recognized as involving the dignity of marriage.

Justice Thomas argued that the state cannot take away people’s innate dignity. Slavery did not cause those enslaved to lose their innate human dignity. Japanese Americans interned during World War II did not lose their innate dignity. At the same time, slaves were treated contrary to their dignity when they were deprived of their abilities to realize much of their human potential. This was to treat them in ways “beneath” their dignity, as was the internment of Japanese Americans during World War II.

Whether human dignity requires same-sex marriage as well as opposite-sex marriage, or human dignity requires opposites-sex marriage only, cannot, it seems, be settled by an appeal to innate human dignity alone or to the fact that such dignity is not given or removed by government. The matter come downs to the social purpose the recognition of marriage serves and honors, and whether both kinds of unions or only one kind of union fulfills that purpose.