Monday, March 31, 2014
This past Sunday, March 30, The New York Times published an op-ed piece by Bruce Ackerman, the well-known professor of law and political science who has taught at Yale for many years. Ackerman’s contribution to the ongoing Constitutional debate was published under the title “Dignity Is a Constitutional Principle.” The focus of his opinion essay is on the same-sex marriage issue. The essence of his thesis, echoing the perspectives on human dignity found in cases such as Windsor v. United States and Lawrence v. Texas (relying on Planned Parenthood v. Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”), is that laws prohibiting same-sex marriage are unconstitutional as they constitute an “assault on human dignity.” Professor Ackerman concludes his essay by quoting the Biblical Golden Rule cited by Senator Hubert Humphrey in the debate surrounding the passage of the Civil Rights Act of 1964: “Do unto others as you would have them do unto you.”
As an aside, it appears that Biblical references do not get automatically excluded from political and legal debate if they serve the interest, in some fashion, of the goal of the speaker who might otherwise argue that such a reference runs afoul of the Establishment Clause of the First Amendment. But let me return to my fundamental point for today.
Both Professor Ackerman and the resources upon which he relies do not define the important term dignity. Does an important term like this one which is used for advancing Constitutional claims require a sound definition so that when the term is used in political and legal discourse its meaning is clear to all who use it? Or is it assumed that the term needs no definition because there is universal understanding and acceptance of the term’s import? As friends and readers of the Mirror of Justice may recall, I, for one, think the clear and agreed meaning of language is critical to civilization and to the law that is a servant instrument of civilization. If the meaning of crucial language used in legal and political debates remains ambiguous, our legal and political discourse will be pointless.
If it is assumed that dignity is that which is due to anyone’s views, regardless of whether the views possess objectively reasoned merit, we are in trouble. We are in trouble because the position of the most aggressive totalitarian will be equal in dignity to the position of the most virtuous saint. If language’s meaning is relevant to legal theory, what is the Catholic take?
One can begin with a general understanding that human dignity has to do with qualities of the possessor that are worthy, have worthiness, and have worth. Worth (the root word used along with two of its derivatives in the previous sentence) means that there is honor in the holder who claims the dignity. Worth means that there is character or standing of a person in respect to that person’s moral and intellectual qualities and abilities. Jacques Maritain offered helpful insight about the sense of human dignity when he defined it this way: it “means nothing if it does not signify that by virtue of the natural law, the human person has the right to be respected, is the subject of rights, possesses rights. There are things which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative.”
The first sentence presents the fundamental role of the natural law in defining dignity. I consider that natural law is the exercise of objective human intelligence comprehending the intelligible reality of the universe, which includes the nature of the human person. The third sentence of Maritain’s formulation is also crucial because human dignity is nothing if the claim to rights that are aligned with human dignity ignores the complementary and correlative moral responsibility that must attend all rights claims. These thoughts are absent from Professor Ackerman’s op-ed in yesterday’s Times. Although he cloaks his dignity argument in equality claims, he does not mention that while everyone is equal in certain fundamental ways (hence the equality between races in the contexts of voting and public accommodation) not everyone shares the same talents or interests. Hence, people do have differences that distinguish them from one another without these differences assaulting their human dignity and without undermining the importance of human dignity in rights discourse.
The op-ed article presents the view that there are no differences between opposite-sex unions and same-sex ones. Nonetheless, the distinction that many people still make between opposite-sex and same-sex couples demonstrates the need to consider legitimate distinctions when the topic of human dignity is under discussion. The rhetoric that these two kinds of relationships are the same for the purposes of marriage and human dignity does not, in fact, make them the same. Dignity may well be a Constitutional principle when it concerns the fundamental equality of humans on the basis of thoughts that correspond to the Maritain formulation. But it is not a Constitutional principle when the dignity/equality argument fails to consider and acknowledge the differences between people that are acknowledged not by human caprice but by objective intelligence comprehending the intelligible reality of differences in the nature and essence of the human person. Authentic human dignity is based on the truth about the human person and not the falsehood of political claims and the rhetoric used to justify these false claims. Objectively reasoned distinctions are critical to understanding equality claims and human dignity when they are considered Constitutional principles. Politically popular claims that do not take account of the reality of our objective intelligence that acknowledges authentic human nature do not advance but, rather, impede human dignity. Moreover, opinion polls siding with views that claim to be “on the right side of history” do not always serve authentic democracy, especially when they simply confirm the empty promises of a totalitarian regime.