After the oral arguments in the Supreme Court Marriage cases, Dahlia Lithwick wrote " [n]obody puts Dignity Kennedy in the corner." That has been one of the reasons that, as a civil rights lawyer, I love Justice Kennedy's opinions. There is nothing I like more than a good Dignity Kennedy quote to headline my briefs as I argue that people we incarcerate behind bars must retain the fundamental right to be treated like human beings (e.g. "[P]risoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons."). I passionately believe, as Kennedy does, that the concept of human dignity should animate the benchmark by which we judge the treatment of our fellow humans (e.g. "A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.").
Yet, when I read Justice Thomas's dissent in Obergefell, I was struck by his closing remarks, in which he roiled in frustration at Kennedy's dignity jurisprudence:
[T]he 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... 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.
On the one hand, I marveled -- given my experience of watching human beings in prisons across the country routinely left isolated for decades in black boxes of sensory deprivation, denied basic medical care, showers and even underwear -- how even Justice Thomas could sincerely assert that the government cannot take away one's dignity. On the other hand, I wondered whether Thomas, an African American man, also had an important and valid point when he observed that even the bonds of slavery, both physical and legal, could not steal away the dignity and humanity inherent to the men and women who suffered under them.
It is one thing to recognize the dignitary harms worked by discriminatory laws and actions -- from slavery to torture to legal categorization as second-class citizens -- and the role the law can -- and, I believe, should -- play in preventing, correcting and reversing these harms. But it is another to say that human beings must depend on law and social acceptance to confer dignity in the first instance.
I was deeply disturbed by the video that circulated just two days before the Supreme Court's marriage decision. During a pride celebration at the White House, Jennicet Gutiérrez, an immigrant and transgender woman of color, interrupted President Obama's speech in the long tradition of progressive activists, to ask him for accountability in his administration's dangerous detention of undocumented LGBT immigrants. In response to her interruption, the President shook his finger at her and scolded that she was in "his" house. He suggested that if you are going to come to his house and eat his food, you are also expected to hold your tongue in the service of politeness, respect and civility. The crowd invited to the President's pride celebration obediently echoed the President's literal shaming of Ms. Gutiérrez, drowning her out with chants of "Obama" and cheering his order to have her removed from the room.
Yet this same group was made up in large part of LGBT activists who had worked tirelessly in the service of marriage equality, laying the social and legal groundwork to bring this issue to the Supreme Court such that it could yield Kennedy's remarkable majority opinion. What did it mean that they would so blithely dismiss a colleague's call for Obama's administration to adopt policies that consistently protect the rights and safety of LGBT persons, instead of cherry-picking those sailing on the right political winds? What did it mean that they would so carelessly give Obama a pass on his administration's alarming detention of undocumented persons in a manner that subjects transgender women to brutal violence, while simultaneously lauding his passing nod to the disproportionate risks trans women of color face on American streets?
President Obama and his crowd of cheering supporters did not recognize the dignity of Ms. Gutiérrez in that moment. They believed that she behaved in an undignified manner, ill-befitting the White House and its Presidential company. They gave no pause to reflect on the dignitary harm they may be inflicting by telling a trans woman of color in no uncertain terms that this was not her house. She did not deserve to enjoy the rarified air of that moment with them because she had broken the civility code.
But only weeks ago, in the context of the protests in Baltimore, President Obama and many in that same company were likely ruminating on Dr. King's observation that riots are the language of the unheard. Civil rights leaders warned against repression of dissent and protest under the guise of civility and politeness and respect. Stonewall was a riot. ACT UP interrupted elected officials. Activists have long been deemed impolite, disrespectful, and undignified.
Ms. Gutiérrez has created an emperor's new clothes moment. As many all over the United States jubilantly post pictures on social media of the White House bathed in rainbow light, we should not ignore the shadow that the President's response to her -- and the policies she was protesting -- cast over that same house. Despite the President's assertion to the contrary, it is our house, in which he lives at our pleasure.
I worry that the dignity -- or even affirmation thereof -- many in our community so desperately sought through legal recognition of marriage comes at the cost of recognizing the inherent human dignity of all of those within the larger queer community. Our LGBT forepeople fought for the recognition that there was dignity in the act of being who they were, however they lived and whomever they loved. We must be careful, as some in the LGBT community gain entré to the benefits of "dignified" society, not to confuse this with the concept of human dignity itself, which inheres within all of us, regardless of marital or other social or legal status.