Dignity as Recognition
Dignity of recognition is the final conception of dignity from Three Concepts of Dignity in Constitutional Law, 86 Notre Dame Law Review 183 (2011). Earlier this week I introduced the topic and discussed the dignity of intrinsic human worth and various substantive dignities.
It is perhaps in this last category where the modern concept of dignity does the most work and stands separate from more familiar rights claims. Dignity as recognition reflects a new political demand, not for freedom or liberty or a minimum standard of living, but rather for respect, sometimes referred to as third-generation “solidarity rights ” (in contrast to first-generation civil liberties and second-generation social-welfare rights). Such rights are frequently protected by modern human rights documents and some national constitutions. The demand for recognition, for the dignity of recognition, requires protection against the symbolic, expressive harms of policies that fail to respect the worth of each individual and group.
The demand for recognition is different from a demand for autonomy or freedom. Recognition requires the community to validate and to have a good opinion of each person or group. In this way, recognition places demands not only on the state to enforce equality and basic rights, but on members of the community to provide respect and recognition of their fellow citizens. Being left alone to pursue one’s vision of the good life is not sufficient; rather the demand for recognition requires cooperation and respect between individuals within the broader community.
Recognition dignity relates to the idea that the individual can be complete only within a community. The community consists of more than just the political contract; it is the focus of a higher obligation and membership. Accordingly, constitutional courts sometimes recognize political, legal, and constitutional demands for recognition itself. As the examples below demonstrate, at the heart of many legal claims for human dignity is an assertion of misrecognition or lack of recognition.
Consider, for example, hate speech regulation. Most western democracies prohibit speech or publications that vilify or significantly disrespect groups based on race, ethnicity, religion, or gender. As the Canadian Supreme Court explained in R. v. Keegstra, “A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs. The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual’s sense of self-worth and acceptance.”
By contrast, in the United States, hate speech is generally protected by the First Amendment, which is concerned primarily with the dignity of the speaker, a dignity protected by allowing the maximum degree of freedom of speech. The dignity recognized by hate speech regulation runs headlong into the inherent dignity of each person to express his views, however hateful they may be.
The legal demand for recognition also relates to demands for equality, not just of treatment, but symbolic and expressive equality, for ensuring that state policies express the right attitude and respect for different groups. For example, in Lawrence v. Texas, the Court focused in part on the autonomy and freedom to choose one’s sexual partners, but also expressed a point about dignity as respect for choices made by individuals. Justice Kennedy explained, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” In Lawrence the dignity of autonomy and choice and the dignity of recognition ran in the same direction.
In their decisions about same-sex marriage, the California and Connecticut Supreme Courts strongly invoked dignity as recognition when upholding the right of gay couples to marry under state constitutional law. The California Supreme Court rejected the idea that the state’s domestic partnership provisions were sufficient, in part because “reserving the historic designation of ‘marriage’ exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.”
The Connecticut Supreme Court noted that the state’s civil union law gave same-sex couples all of the same benefits, protections, and responsibilities of marriage. Nonetheless, the court held that civil unions maintained a “second-class citizen status for same-sex couples by excluding them from the institution of civil marriage” and such exclusion “is the constitutional infirmity.” The Court noted that the harm might be “symbolic or intangible” yet it could impinge on a person’s dignity by failing to recognize his or her life as worthwhile. In these cases, where a civil union, or marriage by a different name, was available, the demand for recognition stands largely on its own—it is a dignitary harm of being denied the same public name for one’s personal relationships and commitment.
Of course, members of the community disagree about the symbolic message that the state should adopt. Opponents of gay marriage argue that marriage must retain its traditional definition as between a man and woman, for both social and religious reasons. They allege, in effect, that if the state expands the definition of marriage, heterosexual relationships will lose their unique and longstanding recognition by the state. As a legal matter, they find no constitutional grounds for requiring an extension of the “marriage” relationship to same-sex couples.
The issue of who gets to use the official state designation of “marriage” cannot be resolved by appeals to dignity. Both sides raise claims for recognition and dignity. It is likely that the Supreme Court will eventually decide whether allowing same-sex couples the choice to marry is a stronger claim than the interest opponents have in keeping the marriage label for heterosexual relationships. But if the issue turns not on specific legal rights (in the situation where legally equivalent civil unions or domestic partnerships are created), but on highly favored words—who gets to define the term “marriage”? Are the arguments for inclusion to a favored designation stronger than the arguments for exclusion? Is this an issue that courts should be deciding as a matter of constitutional law? These examples demonstrate the very different type of claims raised by dignity as recognition and some of the difficulties of adjudicating such claims.