Wednesday, March 27, 2013

The Dignity of Same-Sex Marriage

This week's Supreme Court oral arguments in Hollingsworth v Perry and US v. Windsor give us yet another occasion to consider the role that human dignity might play in the adjudication of constitutional rights. Courts from around the world that have considered the question of same sex marriage have consistently decided that rules that prohibit lesbians and gays from marrying one another violate their right to human dignity. (Legislatures have too: see, for instance, the Canadian Civil Marriage Act (2005), finding that civil unions "as an institution other than marriage" would "violate the[] human dignity" of same sex couples.) 

This is probably the area where the multiple dimensions of human dignity come into starkest relief. In some cases, courts highlight that aspect of human dignity that that the American Supreme Court has protected as privacy under the Due Process Clauses, while in other cases, courts protect couples' interest in non-discrimination. As is often the case in the US (see e.g. Romer v Evans and Lawrence v Texas), courts tend to conflate the two strands of rights.
Typical is the South African Constitutional Court's language in Minister of Home Affairs v Fourie(2005), where the Court wrote that the prohibition on marriage "denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity’ namely that ‘all persons have the same inherent worth and dignity’, whatever their other differences may be."

In other cases, courts have identified in human dignity values that are not routinely recognized in American constitutional jurisprudence.  In a 2011 case from Brazil, the Supreme Court recognized that sexual preference emanates directly from the principle of human dignity; that is, from the sense of self-esteem that is the highest point of individual consciousness. In a 2010 Mexican case allowing adoption by same-sex couples, the Court acknowledged human dignity as a fundamental superior right in Mexican jurisprudence, deriving from the free development of the personality; so important is this right that it requires doing what is necessary to promote respect for the dignity of children and the full exercise of their rights -- hence, the right to be adopted by same-sex couples

The South African court, in the Fourie case, focused on the expressive quality of law in saying that "The sting of past and continuing discrimination against both gays and lesbians was the clear message that it conveyed, namely, that they, whether viewed as individuals or in their same sex relationships, did not have the inherent dignity and were not worth of the human respect possessed by and accorded to heterosexuals and their relationships." Moreover, in a direct refutation of the Brandeis formulation, Justice Albie Sachs wrote that dignity in South Africa, "is not the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law." In this view, it is not enough for the state to get out of the way (because even in the context of marriage and family, the state never really is out of the way); rather, dignity is fulfilled only if the state affirmatively  acknowledges and embraces —or at least respects   the individual.

Human dignity has found its way into the current litigation in the US, though more as a value than a right, and almost always in conjunction with the ill-defined notion of "respect," and without further elaboration.


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