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Clarence Thomas’s View of Dignity is Misunderstood

June 28, 2016

A lot of articles are written saying Clarence Thomas doesn’t think slavery took away people’s dignity as if that was a reason to think slavery is not wrong. However, his point was actually, in part, that slavery is wrong precisely because all people have dignity.

I tried to make this clarification to a lot of people who don’t seem to understand why it’s a misunderstanding, even why I try to explain. Nonetheless, I will try to explain here in some detail. If you have questions, you may leave a comment.

Thomas wrote about dignity in his dissent from the Supreme Court’s decision that same sex marriage is a right in Obergefell v. Hodges. He is against same sex marriage. I am for same-sex marriage. I do not agree with his reasoning or his conclusion regarding same-sex marriage. However, I do not disagree with his argument in the same way that many seem to.

You can find Thomas’s dissent here. The passage that people are focusing on is where Thomas tells us that dignity can’t be given or taken away by the government:

The corollary of that principle is that human dignity cannot be taken away by the government. 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.

Many are saying Thomas is saying slavery is okay because it doesn’t take away a person’s dignity. However, Thomas is not saying slavery is okay because it doesn’t take away a person’s dignity. His point is that slavery is wrong because it violates a person’s dignity. If we took away a person’s dignity, then she would no longer have all the moral rights of a person. However, a person has all the moral rights of a person, even when you violate her rights.

This is basically Kant’s view of dignity. It’s an ordinary way to talk about dignity, at least among ethicists. It’s the absolute worth of being someone capable of rationality, the intrinsic value of a person, or whatever it is about an individual that makes them worthy of respect.

Some people don’t think black people have dignity. They are wrong. They don’t know some people have dignity, even though they do have dignity. Every person deserves some degree of respect. It is wrong to harm them, even for personal gain.

But why is Thomas saying all this? It’s not clear to me. He might think marriage equality can’t give dignity to gay people and that same sex marriage should only be a right if it gave dignity. However, that is a strange thought. He should have told us how it relates to giving black people the right to marry, or why the right to have an interracial marriage is important. If he doesn’t think black people marrying or interracial marriage is a right, then it sounds like he thinks it’s okay to ban those types of marriage. That would be an outrage in my view.

Reading further, we see that Thomas is trying to argue against Kennedy’s view that rights and freedom extend beyond being left alone or non-interference. Kennedy tells us how dignity requires that we are able to make certain personal choices that are important to our unique identity:

From  their  beginning to their  most  recent  page,  the   annals  of  human  history  reveal the transcendent importance of marriage. 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. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not  be  found  alone,  for  a  marriage  becomes  greater than just the  two persons. Rising from the most basic human needs,  marriage is essential to our most profound hopes and aspirations. (8)

In  addition these liberties extend to  certain  personal  choices central  to  individual  dignity  and  autonomy,  including  intimate choices  that  define  personal  identity  and  beliefs.  (18)

This is a different way of talking about dignity, as if violating dignity took it away. However, my impression is that Kennedy is saying the right to marriage is important to dignity, and not allowing marriage would violate a person’s dignity.

I think Thomas has this in mind in the above passage, and when he says,

Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would  not  have  recognized, to the detriment of the liberty they sought to protect.  Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggest instead that it comes  from  the  Government. (79)

Even if the doctrine of  substantive due process were somehow defensible—it is  not—petitioners still would not have a claim. To invoke the protection of the Due Process  Clause at all—whether under a theory of “substantive” or “procedural”  due  process—a  party  must  first  identify  a   deprivation  of  “life,  liberty,  or  property.” (80)

And Thomas is ultimately arguing that the rejection of same-sex marriage is  not a violation of dignity because freedom and rights only protect us from interference and marriage is a privilege or entitlement rather than a right:

[T]he  ratification  of  the  Fourteenth  Amendment almost uniformly construed the  word “liberty” to refer only  to freedom from physical restraint… If the Fifth  Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. (83)

Whether we define “liberty” as locomotion or freedom from governmental action  more broadly, petitioners have  in no way been deprived of it.

Petitioners  cannot  claim,  under the most  plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. (86)

Petitioners do not ask this Court to order the States to stop restricting  their  ability  to enter same-sex  relationships, to engage in intimate behavior, to make  vows to their  partners in  public ceremonies, to engage in  religious wedding  ceremonies, to hold  themselves out  as married, or to raise children. The States have imposed no  such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal  means, such as wills, trusts, and   powers of attorney.

Instead, the States have refused to  grant them govern- mental entitlements.  Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely  because of  the government. (87)

Even if it’s true that marriage is an entitlement, I think blatant discrimination that excludes gay people from getting married is obviously a bad thing similar to how excluding black people or interracial marriage is a bad thing. I think the fourteenth amendment’s guarantee to equal protection of the laws is a good reason to think same sex marriage should be legal, just as the Supreme Court ruled in Loving v. Virginia regarding interracial marriage.

Why do I care that people misunderstand what Clarence Thomas is saying? One, such misunderstandings are straw man arguments (even if unintended) and it can encourage hostility among conservatives and progressives. Two, convincing people that his words are being misunderstood seems much more difficult than I expected, which is evidence that conservatives and progressives have a hard time understanding one another and taking one another seriously enough.

A similar point to the main point I made regarding misunderstanding of Clarence Thomas’s argument can be found here.

A few articles based on a misunderstanding about what he was saying are the following:


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