Dignity and Equality, American Style
All human beings are born equal in dignity and rights.
Understanding the Relationship between Dignity and Equality
Dignity and equality are not the same thing, but they are deeply intertwined.
The logic goes like this:
Equality without dignity is empty: we can all be equally mistreated, have our rights equally denied, have our voices equally silenced. Incorporating dignity into equality ensures that equality is not just formal – looking equal on paper – but substantive: that we are all in fact treated with equal dignity, and that we all have equal rights to have our dignity protected.
But dignity without equality is also problematic. If we are unequal in dignity, then some people can say that others have less dignity, or none worth respecting, or none at all. People in one group can decide that people in another are not as worthy, that their lives don’t matter. That is the path of discrimination, oppression, and ultimately genocide.
Following this logic, courts embrace equal dignity.
The Canadian Supreme Court has insisted that “There can be no doubt that human dignity is an essential value underlying the … equality guarantee. In fact, the protection of all of the rights guaranteed by the Charter has as its lodestar the promotion of human dignity.”
As Justice Kennedy explained in Obergefell v. Hodges when personal prejudices (against same sex marriage) become “enacted law and public policy,”
the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
Justice Jackson expressed it this way in her concurrence in the Birthright Citizenship case:
The question is (and always has been): Does the affected individual or group enjoy equal dignity? And the correct answer is (and has always been) to heed the Fourteenth Amendment’s universalist, antisubordination command.
Whether in Reconstruction-era America, or in the present day, discrimination and oppression aim their arrows directly at a person’s dignity, their standing in the community, their right to belong and ultimately their own sense of self-worth.
For these justices, the constitutional guarantees of liberty and equality intercept these arrows to prevent them from hitting their mark.
But these are the rare exceptions in US law. Typically, the US Supreme Court does not embrace equal dignity and cleaves to a very narrow, formalist understanding of equality that fails to meet the assaults of discrimination.
Equality without dignity in the US
Rather than understanding the 14th amendment’s equal protection clause as a general guarantee of equal dignity and anti-subordination, the US Supreme Court seen it as a negative right to be free of discrimination by state actors on certain specific bases: race, religion, and national origin and, to a lesser extent, to gender. It does not acknowledge that affirmative action is sometimes necessary to diminish disparities and inequalities. It allows all forms of state action that has discriminatory impacts unless a plaintiff can prove that the government’s intent was to harm someone because of that trait.
In the TPS case, Mullin v. Doe, [1] the Supreme Court restricts the application of the equal protection clause even further: even where there is evidence of racial animus on the part of the government (in this case, the President), the Court says the equal protection clause doesn’t provide protection if there could be other explanations for the discrimination.
In this case, there was ample public evidence that the President demeaned, slandered, and insulted Haitian immigrants and their country of origin,[2] but the Court did not even acknowledge that statements from the President would humiliate them, damage their reputation in their communities, threaten their sense of belonging and of self-worth. It ignored that such speech compels its targets to have to justify their own humanity and their right to be treated “as people” on an equal basis with others. It ignored that the President’s speech would likely inspire others to echo racial slurs (and possibly worse) against people from Haiti, and it expressed no empathy for the stigma that such speech attaches to people. All of these are dignity harms, and the Court simply ignored them, finding that the equal protection clause does not provide protection.
Is the federal government bound to respect equality?
Justice Thomas concurred in this case to argue for a further, monumental limitation on the equality guarantee. To understand his argument, a little background is useful.
Since the 1791 adoption of the Bill of Rights, the Constitution has contained, in the 5th amendment, a guarantee of due process. However, it did not contain an equal protection clause until 1868 when the 14th amendment was adopted. The 14th amendment prohibits discrimination by the states: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
In 1954, when the Supreme Court held in Brown v. Board of Education that the 14th amendment’s equal protection clause prohibited states from racially segregating public schools, it also held that the 5th amendment’s due process clause prohibited the federal government from doing the same thing in the District of Columbia. In a brief opinion in Bolling v. Sharpe, the Court wrote:
In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.
Justice Thomas has thought the unthinkable, and likes it. In the TPS case, in response to the Haitian plaintiffs’ claim that the federal government’s termination of TPS violated the equal protection clause, he writes in concurrence that since no text in the constitution requires the federal government to guarantee equal protection, it must not be required to do so. He would jettison 75 years of constitutional common sense and legal protection and hold that the federal government has no obligation whatsoever to respect the equal dignity of every person. He is clear on the point:
The Constitution has only one Equal Protection Clause, and it applies only to the “State[s],” not the Federal Government. Amdt. 14, §1. … Because the Fifth Amendment has no Equal Protection Clause, this Court was wrong to read equal protection into it in Bolling v. Sharpe, 347 U. S. 497 (1954).
The consequences of Justice Thomas’ opinion would be extraordinary: every part of the federal government – the courts, the Congress, and the President , the administrative agencies – would have license to discriminate intentionally and without limitation against people on the basis of race, gender, religion, and anything else – in housing, education, loans, military service, government benefits including Medicaid and Medicare, and everything else.
There would be no requirement of equality, of equal concern and respect, or of equal dignity by the federal government of the United States.
The point is not that this is the current rule because it is not: Justice Thomas wrote only for himself and, for now, the federal government and the states are equally obligated to provide equal protection of the laws, however narrow that obligation is. The point is simply that in failing to understand the equality guarantee as a guarantee of equal dignity, the US Supreme Court has failed to protect the humanity and personhood of every person under its jurisdiction.
[1] The case is named Mullin v. Doe; it was decided along with Mullin v. Miot, which raised a constitutional equal protection claim that the Mullin v. Doe plaintiffs (from Syria) did not raise.
[2] The President’s language is reprinted in Justice Kagan’s dissenting opinion.