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Glenn Miller

Dr Karen Zivi

Honors Senior Thesis

24 April 2015

Dignity Jurisprudence, Justice Anthony Kennedy, and Marriage Equality

I. Introduction

Dignity has been applied in spaces as diverse as Kantian philosophy, Aristotelian virtue, and

the Charter of the United Nations. This array of usages allows for a variety of definitions and

interpretations. Hundreds of Supreme Court of the United States opinions include dignity, such

as United States v Windsor and Lawrence v Texas. In the following essay, I intend to explore the

jurisprudence of dignity in the Supreme Court of the United States in relation to same-sex

marriage. I want to understand the reasoning behind the Justices’ use of dignity, with a particular

focus on Justice Anthony Kennedy. I propose working categorizations of definitions of dignity to

the majority opinion of United States v Windsor. In doing so, I examine Justice Kennedy’s state

as a political “swing vote” and predict how he will side in Obergefell v Hodges.

II. Debates about the meaning and value of dignity in the context of law and policy:

Despite many court decisions invoking dignity, some theorists argue that dignity is

simply too weak and variable to be invoked appropriately. For example, dignity can be used to

refer to institutional value of governing bodies or the abstract intrinsic worth humans possess.

This wide scope is not discernable through the nuances of the word but rather the careful

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observation of context that dignity is used in. Thus, rather than dignity being used as reasoning in

court opinions, it should be left to rhetoric.

Dignity entered popular legal use when it was included in the United Nations’ Universal

Declaration of Human Rights in 1948. The Universal Declaration of Human Rights reads “[a]ll

human beings are born free and equal in dignity and rights. They are endowed with reason and

conscience and should act towards one another in a spirit of brotherhood” (UDHR Article 1).

This document posits that because of some intrinsic value that all people possess, they should

share fraternal affection among each other. This was an extension of Stoic philosophy. “[Marcus

Tullius] Cicero was the first to go beyond the traditional link between ‘dignity’ and ‘social

status’ and use ‘dignity’ to describe men’s unique rational capacity” (Yee, Lee 137). This was

challenged by utilitarianism and theorists such as Thomas Hobbes who believed dignity “to be a

state-regulated value commensurate with the function a person fulfils at any given point of time”

(Yee, Lee 138). Essentially, this required a person to constantly reaffirm their dignity through

action; otherwise the dignity would be lost. The utilitarian model was critiqued by Immanuel

Kant who believed that “price is a measure of one’s relative value and replaceable by anything

equivalent, dignity is an irreplaceable intrinsic worth above all price” (Yee, Lee 138). This

historical evolution of dignity discussions provides the basis for many of the modern

conceptualizations of dignity.

Dignity is meant to show that some aspect of the human race, whether it be acquired or

intrinsic, which creates a system of worth and reward. Those who use arguments relating to

dignity hope to secure some kind of protection or permit to engage in some kind of action due to

their status or acquisition of dignity. Intention behind using the word relies on what the arguer is

aspiring to achieve. If they are attempting to argue a matter of human rights, they will use dignity

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with the hopes to appeal to respect for one’s peers. If they are attempting to argue value of a

governing system, they would use dignity as an acquired, malleable honorific. The background

of the user and the context of the situation help determine which of the breadth of definitions is

necessary at the time. This degree of subjectivity forms the basis for many of the criticisms of the

term itself and of arguments with dignity therein.

Respected political theorist Mary Ann Glendon praises dignity for being “the polestar of

the movements that led to the nonviolent collapse of totalitarian regimes in Eastern Europe and

of apartheid in South Africa” (Glendon 43). Despite the abilities of dignity discourse, Glendon

does note some issues with invoking dignity. “It is now apparent that the choice of dignity as ‘a

placeholder for whatever it is about human beings that entitles them to basic human rights and

freedoms’ entails a number of philosophical difficulties,” such as the moral, legal, religious, and

political interpretations (Glendon 44). Because of this inexact nature, Glendon sees dignity

dialogues changing, from preservation and intimate family concerns to progressive

individualistic goals as societies progress from more communitarian models to more

individualistic ones. Glendon feels these actions rewrite dignity conceptualizations and restricts

religious expression, an unfortunate downside to progressive dignity interpretations. Though she

does encourage dignity’s usage in relation to human life, including that of human embryos, she

thinks that dignity politics can be another medium moulded and developed into a capitalistic

schema of profits over the value of life. Her interpretation is that this secular attack comes from

the scientific community with the intent of eradicating religious expression through policy.

Glendon suggests, despite, or even due to, dignity’s subjectivity, dignity arguments can be made

to harm, in her opinion, the things dignity was put in place to protect, like life, autonomy, and

religious expression.

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Medical ethicist Ruth Macklin describes dignity as a worthless concept for the medical

field. She extends this to encompass arguments surrounding the “right to life” and the “right to

die” that Glendon discusses as well. While the medical field and same-sex marriage are hardly

linked, it should be noted that previous usages of dignity have already been invalidated so other

forms of dignity may as well. “A close inspection of leading examples [on dignity] shows that

appeals to dignity are either vague restatements of other, more precise, notions or mere slogans

that add nothing to an understanding of the topic” (Macklin 1419). Bioethicist Steven Pinker

echoes many of Macklin’s concerns. He describes a report on dignity in bioethics produced by

the President’s Council on Bioethics as a false presentation of “scholarly deliberation of

universal moral concerns” which “springs from a movement to impose a radical political agenda,

fed by fervent religious impulses, onto American biomedicine” (Pinker 28). He brings up the

point that “[a]lmost every essayist concedes that the concept [of dignity] remains slippery and

ambiguous. In fact, it spawns outright contradictions at every turn” (Pinker 30). Pinker clarifies

his point by arguing about how dignity is used as both an intrinsic value while almost a value

that can be taken. “We read that slavery and degradation are morally wrong because they take

someone’s dignity away. But we also read that nothing you can do to a person, including

enslaving or degrading him, can take his dignity away” (Pinker 30). These kind of dualities

suggest to Pinker that dignity is far too weak and abstract to address these seemingly polar

opposites.

Man Yee and Karen Lee defend dignity against charges like those described above. They

argue that “dignity is more than empty slogans” for “there is a collective wisdom in affirming it

as one of the universal pillars of human rights” (Lee, Yee 165). The historical value and

application that dignity has experienced produces a collective understanding that something

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about dignity dialogues is desirable. If dignity was solely as weak as some interpret, it would

likely have been abandoned years ago, rather than being applied to the Universal Declaration of

Human Rights, the Constitution of South Africa, and the numerous Supreme Court of the United

States opinions. Although Yee and Lee argue that dignity is important, they do recognize

difficulty in grappling with the concept due to its ability to “be interpreted differently by

different people whether they are legally or philosophically trained” (Lee, Yee 165).

III. Categories of Dignity Used in the Law

To thoroughly examine the reasoning behind using dignity, we must understand how

dignity is used. Dignity lies in a grey space that permits several definitions to be applied to it

depending on context. Theorists such as Leslie Meltzer Henry have studied Supreme Court

opinions and have concluded that, as of 2011, the Supreme Court of the United States has

“invoked the term [dignity] in more than nine hundred opinions” (Henry 3). Of these hundreds of

usages, Henry concluded that there were five primary understandings of dignity that the Justices

invoked. She categorizes these uses as: Institutional Status as Dignity, Equality as Dignity,

Equality as Dignity, Liberty as Dignity, Personal Integrity as Dignity, and Collective Virtue as

Dignity. Man Yee and Karen Lee undertook a similar task to define dignity and developed

similar categorizations of the many usages of dignity. Yee and Lee argue that dignity have

multiple definitions while also having several layers needed to fully understand its usage.

“Despite its prominent status in international law and many domestic constitutions, it does not

have a concrete meaning or a consistent way of being defined. This lack of precision often leads

judges to weigh in their own moral standards amid competing claims of rights each of which has

a plausible case of human dignity violation” (Yee, Lee 132). Dignity presents challenges as the

definitions are not entirely holistic nor do they lend themselves to theoretical understandings.

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While there have been attempts to present comprehensive definitions for dignity, its variable

nature has presented substantial challenges to this task.

With Henry’s thorough analysis of Supreme Court opinions, she drafted her categories of

definition. These definitions rely on the circumstances to dictate which one is used. Essentially,

each time dignity is used, the appropriate definition is gleamed the context of its usage. The first

of the definitions is summed as “Institutional Status as Dignity.” This definition proposes that a

governmental authority holds dignity by virtue of simply existing. Henry explains that “[f]rom

the thirteenth century until the Enlightenment, the predominant view was that dignity is an

attribute reserved for high-ranking positions and the people who occupy them” (Henry 7). This

definition “is not intrinsic […] since it is grounded in, and depends on, the existence of social

hierarchy” (Henry 7). Recently, this kind of dignity has been used in Sossamon v Texas which

the Court determined “state sovereign immunity doctrine has been ‘central to sovereign dignity’”

(Alden v Maine via Sossamon v Texas via Henry 10). In the ruling, Justice Thomas affirms that

due to the State’s institutional dignity, an attempt to legally challenge the State from outside the

State would infringe on its dignity, and thus cannot occur. This is protected and permitted under

the Eleventh Amendment of the United States Constitution.

Next, Henry explores “Equality as Dignity.” This trait is intrinsic of all people for as long

as they exist, and that it must be given to all others to be received. Essentially, no matter the

circumstances of one’s birth or their conditions of life, all people must be respected the same.

“Equality as Dignity” has been used in such cases as Powers v Ohio wherein the Court decided

that “’racial discrimination in the qualification or selection of jurors offends the dignity of

persons and the integrity of the courts’” (Powers v Ohio via Henry 11). Justice Kennedy, in the

majority opinion, voices opposition to racial profiling, specifically in jury selection as it casts a

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“doubt upon the credibility or dignity of a witness” (Powers v Ohio 12). Rather than the jury

being selected on ability to perform the necessary tasks, they were being valued and challenged

based upon immutable characteristics, like their race. This creation of racial divide offends

equality as it reinforces the inequity of the races.

The third kind of dignity is “Liberty as Dignity.” For someone to possess this kind of

dignity, they must “make autonomous choices. Because it is capacity driven, dignity of this kind

is contingent—one can gain or lose it over a lifetime” (Henry 12). This liberty exists so long as

one plays within the confines of societal expectations of dignity. This is also the form of dignity

that Justice Anthony Kennedy invoked during his opinion on Lawrence v Texas, which struck

down anti-sodomy laws nationwide. Justice Kennedy proposes that, even though the anti-

sodomy laws were a minor misdemeanour, they remain “a criminal offence with all that imports

for the dignity of the persons charged, including notation of convictions on their records and on

job application forms, and registration as sex offenders under state law” (Lawrence v Texas 10).

Thus, to keep these laws, they would restrict autonomous choices to engage in consensual

intercourse and diminish one’s dignity if convicted.

Henry then explores the Aristotelian “Personal Integrity as Dignity.” This suggests that

only if a person acts in a dignified manner, such as having an overdriving need to compassionate

and helpful, can a person truly be dignified. This form of dignity is most commonly used when

describing a particular action that is undignified, such as drug abuse or paedophilia. These kinds

of social ills deprive a person of the benefit of the doubt and cast them into undignified positions.

This has been seen in cases like Hudson v Michigan where local police conducted a warrantless

search and found someone indecent. The Court concluded that being “indecent, improper,

undressed, ungraceful, or uncollected” is “in short, undignified” (Henry 17). As the police

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encountered an undignified person, the person’s state reflected on their worth. And as the police

had encountered the person under illegal grounds, the undignified person unnecessarily lost their

dignity.

Lastly, Henry describes dignity as “Collective Virtue.” The idea is that if an action

jeopardizes the dignity of an entire group, no matter if those doing it feel empowered, the action

must be discouraged. For instance “in a community that believes prostitution is an affront to

women’s collective dignity, it is irrelevant that individual women find the practice empowering

or view it as an exercise of their liberty as dignity” (Henry 17). This form dignity cares little for

the actions of one, but rather “with how a society values the totality of human life” and the

collective virtue therein (Henry 17). Cases like Rochin v California used “Collective Virtue as

Dignity” wherein “the Court held a search unconstitutional when police officers directed a

physician to forcibly pump a suspect’s stomach to collect evidence that the suspect was a

narcotics dealer who had swallowed his stash to avoid arrest” (Henry 19). The Supreme Court

determined that “force so brutal and so offensive to human dignity in securing evidence from a suspect”

cannot be legal and neither is the evidence obtained from such force (Rochin). This unabashed method

of disregarding bodily integrity is so disrespectful that the entirety of human dignity is

diminished. Torturous extraction of this kind violates not only one’s autonomy, and thus their

individual dignity, but it concerns the entire collective for it establishes a precedent for what kind

of torture and disregard for bodily integrity is allowed. “Critics of torture seek to prohibit the

practice not simply because it violates the autonomy of the tortured individuals and subjects

them to extreme pain and suffering, but also because torture is anathema to civilized societies

bound by law” (Henry 17). This collective disregard minimizes individual experience and casts a

spectre of ill upon the community that encourages such wanton torture. Though the tortured

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suffers in the immediate, the entire community suffers out of the decision to behave so

indignantly.

Man Yee and Karen Lee formulate definitions of dignity through an analysis of historical

usage, contemporary theoretical dialogues, and various political and legal motivations. These

definitions manifest as a three-tiered system, rather than five, as Henry proposes. These tiers

include “the dignity of the whole,” “the dignity of the group,” and “the dignity of the

individuals.” They posit that “the dignity of the whole ‘human species’ concerns the well-being

of the entire human race” which is the cause of debates surrounding cloning (Lee, Yee 148).

Other than the collective human race, there is the group. “[T]he dignity of ‘groups’ concerns

inter-group relations within the human species” such as restrictions on speech, love, and religion

(Lee, Yee 148). “[T]he dignity of ‘individuals’ focuses on inter-personal relations that have

implications for” such things as “the law of defamation” (Lee, Yee 148). These definitions,

rather than being about how people interact, focus on the amount of people involved with the

particular claim of dignity. Thus, while Henry presents different conceptualizations of dignity

from Lee and Yee, they are compatible and overlapping. For instance, the “dignity of groups” is

similar to “equality as dignity” as they both describe dignity as something that all people possess

while demanding people are treated fairly, regardless of their positionality. “The dignity of

individuals” is similar to “liberty as dignity” and “personal integrity as dignity” for they both

propose that humans are free beings and need to be respected in their personal choices that

reflect only on their own autonomy. And, lastly, “the dignity of the whole” is similar to

“collective virtue as dignity” for they both regard dignity as a concept that focuses not on the one

or the many, but the whole, and if an offense to this kind of dignity, all people’s dignity will be

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diminished. While they are different in definitions and the methodology to reach these

conclusions, they share similar enough principles that they are relatively comparable.

IV: Applying the Categories to Windsor:

United States v Windsor became a monumental case for the gay rights movement as it

struck down Section 3 of the Defence of Marriage Act. The Defence of Marriage Act, introduced

in 1996, permitted States from recognizing marriages performed in other jurisdictions while also,

for purposes of federal documentation, defined marriage as between one man and one woman.

The Defence of Marriage Act was eventually challenged by Edith Windsor who sought

exemption from the Federal Estate Tax due to her marriage to Thea Spyer. The Supreme Court

struck down Section 3 of the Defence of Marriage Act on June 26, 2013. In the majority opinion,

Justice Anthony Kennedy invokes dignity frequently throughout.

Justice Kennedy’s majority opinion invokes dignity frequently. However, as Henry’s and

Yee and Lees’ work were prior to United States v Windsor, they did not analyse Justice

Kennedy’s usages of dignity in either of their works. So, I will attempt to apply their principles

to his majority opinion.

Throughout United States v Windsor, Justice Kennedy invokes dignity 12 times. The first

instance reads “It seems fair to conclude that, until recent years, many citizens had not even

considered the possibility that two persons of the same sex might aspire to occupy the same

status and dignity as that of a man and woman in lawful marriage” (Windsor 7). From this usage

of dignity, Justice Kennedy appears to be suggesting that dignity is something granted,

presumably from some State-sanctioned service. Thus, in this case, Justice Kennedy is using

Henry’s first definition, “Institutional Status as Dignity.” To clarify, Henry describes this as a

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trait that “is held only as long as others deem the person or institution worthy of its respect.

Consequently, this form of dignity can be gained or lost as a person is promoted to or demoted

from a given position in society” (Henry 8). As marriage is something that is celebrated and is

seen as a major life moment, it does have a promotional feel to it. Thus, those who are married

are promoted and “earn” dignity. Lee and Yee would describe this as the “dignity of individuals”

for it “focuses on inter-personal relations that have implications” for their relations (Yee, Lee

148).

Justice Kennedy next uses dignity with “[h]ere the State’s decision to give this class of

persons the right to marry conferred upon them a dignity and status of immense import” (United

States v Windsor 8). Similarly to the previous instance of dignity, this usage of dignity is directly

related to receiving dignity from a source of power. Marriage itself is a promotional material,

none all that dissimilar to receiving a promotion in a career. While marriage is the promotion in

the career of life, both do congratulate the receiver on succeeding at some aspect. Thus, Henry’s

definition of “Institutional Status as Dignity” and Yee and Lees’ definition of “dignity of

individuals” applies once again.

The next usage of dignity reads “[w]hen the State used its historic and essential authority

to define the marital relation in this way, its role and its power in making the decision enhanced

the recognition, dignity, and protection of the class in their own community” (United States v

Windsor 8). Similar to the previous definitions, this use of dignity is revolving around some kind

of conferment made by the government to a person, or two people in marriage’s case. But, in this

particular usage, it mentions a community of people, in this case those who wish to be married.

This is particularly relevant to Henry’s second definition, “Equality as Dignity,” as this dignity is

no longer wholly individualistic but relies on an entire group of people; in this case, those who

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wish to marry, or are married. Earlier in the paragraph, Justice Kennedy mentions “the incidents,

benefits, and obligations of marriage are uniform for all married couples” (United States v

Windsor 8). This regard for people being treated equally similar is directly correlated with

Henry’s definition of “Equality as Dignity.” Regarding Yee and Lee, their definition of “dignity

of groups” would apply as it focuses on the “inter-group relations within the human species”

(Yee, Lee 148).

Justice Kennedy next uses dignity in “[t]he result requires this Court now to address

whether the resulting injury and indignity is a deprivation of an essential part of the liberty

protected by the Fifth Amendment” (United States v Windsor 8). First off, rather than using

dignity in the affirmative, Justice Kennedy used dignity in the negative. Rather than saying

something makes someone dignified, or that people automatically have dignity by virtue of

existence, someone can do something to remove dignity from themselves or others. Henry’s

definition of “Institutional Status as Dignity” can mean not just acquiring dignity from a

governmental source, but also losing dignity due to the same governmental source. Yee and Lee

would argue this instance of dignity is related to their “dignity of individuals” as it is a one-to-

one give-and-take, rather than interactions of a group, or of the whole of humans.

The next usage of dignity reads “[b]y its recognition of the validity of same-sex

marriages, New York sought to give […] further protection and dignity to that bond” (United

States v Windsor 9). In this case, Justice Kennedy is using Henry’s definition of “Institutional

Status as Dignity” as he proposes dignity is something that the government is giving to the

people being married, rather than them having it by virtue of existing, being mentally capable, or

for socially accepted dignified behaviour. It also likely applies to Yee and Lees’ definition of

“dignity of individuals” as it applies primarily to one or two persons, from an abstract entity.

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Following, Justice Kennedy states “[t]his status is a far-reaching legal acknowledgement

of the intimate relationship between two people, a relationship deemed by the State worthy of

dignity in the community equal with all other marriages” (United States v Windsor 9). Once

again, Henry’s definition of “Institutional Status as Dignity” applies as it discusses the

government giving people dignity due to their marriage, something it sees as worthy of dignity.

And, due to its intimate individualistic nature, Yee and Lees’ “dignity of individuals” applies as

well.

Dignity is next used by Justice Kennedy with “[t]he history […] of DOMA’s enactment

and its own text demonstrate that interference with the equal dignity of same-sex marriages, a

dignity conferred by the States in the exercise of their sovereign power, was more than an

incidental effect of the federal statute” (United States v Windsor 9). In this single sentence,

Justice Kennedy uses dignity two different ways. The first time, Justice Kennedy argues that

dignity is a response to equality and that if two actions are similar, they are to be as dignified as

one another. This plays on Henry’s first and second definition of dignity, “Institutional Status as

Dignity” and “Equality as Dignity.” “Institutional Status as Dignity” is relevant as dignity is still

something that the government confers based on virtues that it deems worthy. But, “Equality as

Dignity” is used as, though it does not propose that all people, regardless of marriages, have

dignity, it does claim that all marriages have the same degree of dignity. Just as two people can

be visibly different, either due to their race or ability, they are nonetheless equal by virtue of

existing. So, as a same-sex marriage and a different-sex marriage appear different, they are

nonetheless similar reflections of one another and thus require equal dignity. Lee and Yee would

include “dignity of groups” into this usage. They would claim “dignity of groups” as this is

something that represents not just one marriage but the entirety of married people, as their

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dignity is being called into question. However, for Justice Kennedy’s second usage, dignity is

more plainly used as Henry’s “Institutional Status as Dignity” and Yee and Lees’ “dignity of

individuals.” Henry’s “Institutional Status as Dignity” is used due to the government permitting

the couples to have dignity based off the actions it sees worthy. Yee and Lees’ “dignity of

individuals” is used due to the singular marriage being compared to those of all other marriages

so it is individualistic as it is one versus the many.

Justice Kennedy next uses dignity with “[r]esponsibilities, as well as rights, enhance the

dignity and integrity of the person” (United States v Windsor 9). This particular case appears to

best fit Henry’s definition of “Personal Integrity as Dignity.” This definition requires a one to

“display perseverance, […] face adversity; to exhibit courage, […] confront fear; and to express

fortitude, […] resist fatigue” (Henry 14). This definition relies on dignified actions bringing a

status of dignity, granted by no one particular entity, no bearer of dignity. As a person’s integrity

is linked to this dignity, as Justice Kennedy suggests directly in his opinion, Henry’s definition

of “Personal Integrity as Dignity” best fits. For Yee and Lee, their definition of “dignity of

individuals” best fits as it focuses on one’s individual achievements and how marriage augments

that rather than marriage is that dignity, despite Yee and Lee likely including marriage into the

dignity of an individual rather than that of a group.

Justice Kennedy next articulates dignity with “[t]he differentiation demeans the couple,

whose moral and sexual choices the Constitution protects, see Lawrence, […] and whose

relationship the State has sought to dignify” (United States v Windsor 9). This use of dignity

relates to Henry’s “Equality as Dignity” as it relies on identity politics as improper grounds for

discrimination. To differentiate a couple from another couple and thus not grant them dignity is

to suggest that one couple is better than the other, by virtue of some form of identity politics.

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However, since the State is seeking to protect them, for all citizens are equal, they must as well

be dignified, regardless of their different couple state. This also relates to Yee and Lees’

definition of “dignity of groups” as it compares the entire same-sex couple group to the different-

sex couple group.

Justice Kennedy’s penultimate use of dignity in United States v Windsor reads “[i]t

imposes a […] disability on the class by refusing to acknowledge a status the State finds to be

dignified and proper” (United States v Windsor 10). This particular usage of dignity relates to

Henry’s first and second definition of dignity, “Institutional Status as Dignity,” and “Equality as

Dignity.” It invokes “Institutional Status as Dignity” as it describes a form of dignity that an

entity ascribes based on its judgement. It relates to “Equality as Dignity” as it is comparing two

classes of people, different-sex couples and same-sex couples, and challenging the socially

applied inequalities associated with them. It also relates to Yee and Lees’ definition of “dignity

of groups” as Justice Kennedy refers to a class of people rather than a specific couple or

relationship.

The final use of dignity by Justice Kennedy in United States v Windsor states “[t]he

federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage

and to injure those whom the State, by its marriage laws, sought to protect in personhood and

dignity” (United States v Windsor 10). In this case, Justice Kennedy argues Henry’s first

definition of dignity, “Institutional Status as Dignity.” This definition is best used as it relates to

the government providing, protecting, or removing a person or group’s dignity. This best relates

to Yee and Lees’ definition of “dignity of groups” as it relates to the entirety of those affected by

marriage laws rather than referring to a metaphoric single married couple standing in as

representative for those who are affected by the marriage laws.

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While some theorists, such as Samuel Moyn, argue that it “is simply wrong to assert that

Justice Kennedy relied heavily, let alone primarily, on individual human dignity in the opinion

[of United States v Windsor],” the effect is nevertheless noticed (Moyn Constitutional 1). What

Moyn does believe about Justice Kennedy’s usage of dignity is that Justice Kennedy used it to

invoke institutional justice. To Moyn, Justice Kennedy seemed to argue that “what matters is not

so much individual’s private choice to enter a same-sex marriage but rather the fact that in some

places (but not others) this relationship has now been ‘deemed by the State worth of dignity in

the community equal with all other marriages’” (Moyn Constitutional 1).

Moyn argues that Justice Kennedy does not believe, at least not in United States v

Windsor, that same-sex marriage should be a federal right, but rather that it would be undignified

to deny something to a marginalized group while a section of the marginalized group is

permitted to engage. If the State were to unilaterally deny marriage to same-sex couples that

would not be undignified. But because the State permits certain people in certain areas to marry,

it is undignified to deny the federal benefits to those who can marry. “DOMA, because of its

reach and extent, departs from this history and tradition of reliance on state law to define

marriage” (United States v Windsor 8) which Kennedy believes to be an overreaching power by

the federal government.

While Henry wrote her analysis of Supreme Court usages of dignity prior to United

States v Windsor, Moyn has provided a thorough enough explanation as to the type of dignity

that Justice Kennedy uses. Applying his explanation of what occurred in the opinion to Henry’s

framework, it appears that Kennedy was relying on “Collective Virtue” and “Equality.” Justice

Kennedy argues “collective virtue” due to his belief that the general well-being of the nation

would be impacted should same-sex relationships be fragmented on the national scale. “The

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Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex

marriages, those unions will be treated as second-class marriages for purposes of federal law.

This raises a most serious question under the Constitution’s Fifth Amendment” (United States v

Windsor 9). Due to the nature of equality, the federal government cannot say that some

marriages are valid and some are not. If someone is married, they must be recognized as married,

even if other states refuse to admit so. It was with this mind-set that Kennedy evoked “equality

as dignity.” In United States v Windsor, Kennedy states that the Court must “address whether the

resulting injury and indignity is a deprivation of an essential part of the liberty protected by the

Fifth Amendment” (United States v Windsor 8). In this instance, Kennedy directly proposes that

a lack of dignity is synonymous with inequality, and thus equality is a necessary facet of a

dignified existence.

Samuel Moyn discusses dignity in relation to United States v Windsor, unlike Henry,

Yee, and Lee, who examine dignity through a catalogue of Supreme Court cases. In the

following, he interprets United States v Windsor for Justice Anthony Kennedy’s rationale behind

using dignity. Though he provides some criticisms of dignity, such as his scepticism that “it will

serve progressive causes well,” the Supreme Court of the United States, and Justice Kennedy, he

also describes them all at once. As Moyn discusses the three areas of focus, he does so while

synthesizing the importance of three. He does not solely rest on the Justice Kennedy, or even the

entirety of the Supreme Court, to articulate arguments. But it is their invocation of dignity that

provides the chance to critically examine jurisprudence.

V: Dignity around the world:

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Equality as dignity has been presented as rationale in other countries, such as Canada, for

the legalization of same-sex marriage. The Ontario Superior Court, in Halpern v Canada, “held

that withholding the marriage rights from same-same couples constituted discrimination under s

15 (1) of the Canadian Charter” (Lee, Yee 161). This decision relied on declaring the dignity of

same-sex couples was diminished due to the discrimination of the institution of marriage. By

invoking dignity, the court concluded “’this case is ultimately about the recognition and

protection of human dignity and equality in the context of the social structures available to

conjugal couples in Canada’” (Halpern v Canada via Lee, Yee 161). The explanation provided

explored an objective-subjective test devised by Iacobucci J. The test concluded four things.

“First, the pre-existing disadvantages experienced by gays and lesbians were strongly

indicative of discrimination that went against the Canadian Charter’s values. Secondly,

the law failed to accommodate the needs, capacities, and circumstances of same-sex

couples in prohibiting same-sex marriage. Thirdly, the denial of marriage benefits was

the result of an ‘underinclusive ameliorative legislation that excludes from its scope the

members of a historically disadvantaged group’. Last, excluding gays and lesbians from

joining a fundamental social institution perpetuated the view that they are less worthy of

recognition. The finding of impairment of dignity for gays and lesbians meant that the

common law definition of marriage violated equality” (Halpern v Canada via, and Lee,

Yee 161).

These conclusions led to the legalization of same-sex marriage in Canada. With the arguments

surrounding dignity and equality, Canada was able to identify the undignified manner in which it

was treating its marginalized group, and also that due to the group being marginalized, are more

Miller 19

prone to suffer indignity than groups with power. It is these recognitions that permit Canada to

explore equality in ways that other countries are still reeling to understand.

South Africa values dignity as one of the rights guaranteed to a person that needs to be

upheld by the State at any cost by evidence of its inclusion in the South African Constitution.

The Constitution reads “this Bill of Rights is a cornerstone of democracy in South Africa. It

enshrines the rights of all people in our country and affirms the democratic values of human

dignity, equality and freedom” (ZAR Constitution 11). This is furthered with Chapter 2, Section

10 of the constitution which describes the Bill of Rights. “Everyone has inherent dignity and the

right to have their dignity respected and protected” (ZAR Constitution 12). The placement of

dignity as a right that all people possess, just as is the right to life and the right to freedom and

security, shows that dignity is a trait that holds enormous political clout.

The treatment of dignity as necessary and irrevocable promotes South Africa to make

greater strides in terms of human rights dialogue that the United States remains hesitant to

address. Chief Justice Arthur Chaskalson of the South African Constitutional Court has taken

this call of action and “spent years as a lawyer fight for human rights, courageously confronting

a brutal regime and enduring many setbacks” (Chaskalson 1402).

The value South Africa places on dignity and human rights, using both for its own

marriage equality ruling with Minster of Home Affairs v Fourie.

“’The message and impact are clear. Section 10 of the Constitution recognises and

guarantees that everyone has inherent dignity and the right to have their dignity respected

and protected. The message is that gays and lesbians lack the inherent humanity to have

their families and family lives in such same-sex relationships respected or protected. It

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serves in addition to perpetuate and reinforce existing prejudices and stereotypes. The

impact constitutes a crass, blunt, cruel and serious invasion of their dignity. The

discrimination, based on sexual orientation, is severe because no concern, let alone

anything approaching equal concern, is shown for the particular sexual orientation of

gays and lesbians’” (Minister of Home Affairs v Fourie 54)

The dignity that the same-sex couples then are denied is considered a human rights violation. To

deny something as intrinsic as dignity would be to deny a fundamental right, a human right.

Justice Sachs addresses this, as he did with dignity.

“At the heart of these principles lies the notion that in exercising its legislative discretion

Parliament will have to bear in mind that the objective of the new measure must be to

promote human dignity, the achievement of equality and the advancement of human

rights and freedoms. This means in the first place taking account of the fact that in

overcoming the under-inclusiveness of the common law and the Marriage Act, it would

be inappropriate to employ a remedy that created equal disadvantage for all” (Minister of

Home Affairs v Fourie 149).

South Africa has successfully argued that same-sex marriage is a human right and that the

dignity of a homosexual is diminished when denied marriage.

Although an “area in which dignity is relevant to a difference between South African law

and United States law, and that is the respect of positive action demanded from the government.

Unlike the United States, where courts draw a distinction between action and inaction in relation

to the Due Process Clause, [South Africa’s] Constitution requires the state to ‘respect, protect,

promote, and fulfil the rights in the Bill of Rights,’ and this may call for positive action from the

Miller 21

state to protect individual rights” (Chaskalson 1391). Chief Justice Chaskalson suggests that the

South African Constitution seeks to uphold their Bill of Rights, erring on the side of the many,

while the United States lies in inaction until riled by a sufficiently important quality of life

challenge occurs. We see that dignity is constantly being appropriated to claims of non-

normative sexuality equality. Between cases in such places as Canada and South Africa,

homosexual equality is intrinsically related to dignity.

VI: The Implications of Dignity Jurisprudence for Marriage Equality in the US: A

Conclusion

Henry provides us with a variety of definitions for dignity, precedent of each definition,

and, to some degree, implications for these definitions. By comparing the usages of dignity in

United States v Windsor and Henry’s definitions, the intended definitions of dignity by Justice

Kennedy becomes more apparent.

Thus for the United States to appear as truly the land of the free, where its people are able

to enjoy liberty and the pursuit of happiness, the Supreme Court of the United States has to

accept the inevitability of marriage equality and push a ruling so encompassing that there is no

hesitation or no denial of necessity. As Justice Kennedy is widely regarded as being the critical

decision for the marriage case due to be decided June 2015, his jurisprudence provides clues to

his potential decision.

Justice Ruth Bader Ginsburg has repeatedly stated over the past years that the Sixth

Circuit will likely be the region that necessitates Supreme Court action. As, until November

2014, all Circuits that had determined marriage equality cases found the marriage bans

unconstitutional, there was no necessity for Court involvement. With Obergefell v Hodges,

Miller 22

Tanco v Haslam, DeBoer v Snyder, and Bourke v Beshear coming and creating an entire Circuit

in which marriage bans were unilaterally upheld, mandates Court involvement. The sole

dissenter of the Sixth Circuit cases even proposed that the upholding of the bans was an attempt

to invoke Supreme Court action. “Because the correct result is so obvious, one is tempted to

speculate that the majority has purposefully taken the contrary position to create the circuit split

regarding the legality of same-sex marriage that could prompt a grant of certiorari by the

Supreme Court and an end to the uncertainty of status and the interstate chaos that the current

discrepancy in state laws threatens” (Sixth Circuit 55). The vivacity expressed in the Sixth

Circuit dissent covers most arguments used against those seeking to uphold the marriage bans,

and will, hopefully, be used to ultimately settle the issue.

As Justice Kennedy penned the majority opinion on landmark gay rights cases such as

Romer v Evans, a 6-3 decision, Lawrence v Texas, a 6-3 decision, and United States v Windsor, a

5-4 decision, his bias towards gay rights is evident. Though, Kennedy always stopped short of

arguing marriage is a fundamental right. In fact, he usually addressed away from marriage

decisions. In Lawrence v Texas he states that the case “does not involved whether the

government must give formal recognition to any relationship that homosexual persons seek to

enter” to ensure that the opinion is not taken as a blanket for all gay rights (Lawrence v Texas

12). In Romer v Evans, Kennedy assured that a “State cannot so deem a class of persons a

stranger to its laws” which may appear in the opinions of the marriage equality ruling stemming

out of Obergefell v Hodges, Tanco v Haslam, DeBoer v Snyder, and Bourke v Beshear (Romer v

Evans 9). This argument could appear as marriage bans making same-sex couples a stranger to

the law that permit unions.

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However, in United States v Windsor, Kennedy asserts that “[t]he definition of marriage

is the foundation of the State’s broader authority to regulate the subject of domestic relations

with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital

responsibilities’” (United States v Windsor 8). This may be the caveat used for the Supreme

Court to duck the decision to provide nationwide marriage equality. As United States v Windsor

did not legalize marriage nor do anything except extend marriage benefits to legally married

same-sex couples, the Court may see fit to decline to comment on the upcoming case, as it did

with Hollingsworth v Perry.

But, Justice Kennedy’s willingness to advance gay rights, his pattern of making dignity

claims, and the necessity of Supreme Court action suggest that he will likely rule in favour of

marriage equality, in some capacity. Whether this manifests as across the board marriage

equality permanently, the removal of marriage bans from State Constitutions which would allow

them to return, solely same-sex, second parent adoption, or death certificate spousal

acknowledgement will be determined come June.

Miller 24

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Miller 25

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