Author Archive | Neomi Rao

Dignity of Recognition and Federalism

Yesterday I discussed my recent essay The Trouble with Dignity and Rights of Recognition. I want to explain further why I believe the Court’s decision ultimately does not rest on a federalism rationale, in part addressing Professor Ernest Young’s thoughtful response to my essay.

The Court’s right of recognition is linked to the substantive right to same-sex marriage created under New York law. Professor Young explains that the Court finds state law important for conferring “dignity” on same-sex marriages and this, in part, demonstrates that the decision is about respect for the federal balance. Yet this does not explain why Congress could not adopt its own definition of marriage for the purposes of federal law (Nick Rosenkranz discussed this issue before Windsor was decided here and here).

To invalidate DOMA, there must be something else going on—the Court objects to the fact that DOMA expresses “disapproval” of same-sex marriage, interferes with the “equal dignity of same-sex marriages,” and treats those marriages as “second-class marriages for purposes of federal law.”

My point is that this something else is not (at least explicitly) about any underlying right or freedom. Windsor does not recognize a right of same-sex marriage, nor does Windsor say that distinctions based on sexual orientation receive heightened scrutiny. These would at least be claims familiar from the Court’s precedents. I think that the Court’s decision recognizing same-sex marriages is incoherent without some understanding of such underlying federal rights.

Moreover, Windsor is not simply an equal protection decision based on state law, because the Court holds that the federal government must recognize same-sex marriage, but cannot recognize a claim only for traditional marriage. Professor Young’s response to this is that these are not equal claims for recognition. He says, “I can always frame a desire to meddle [...]

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Windsor and the Problem with Rights of Recognition

Commentators on Windsor v. United States, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act, have puzzled about whether the Court’s opinion relies on a federalism rationale or instead some broader rationale about rights for same-sex couples. In The Trouble with Dignity and Rights of Recognition, recently published in the Virginia Law Review Online, I argue that one of the problematic aspects of the decision is that its use of dignity creates an unprecedented right of recognition. Because the decision ultimately turns neither on federalism nor on individual rights, it exists outside of our constitutional tradition.

Justice Kennedy’s opinion for the Court repeatedly refers to dignity, a dignity that is at the core of the Court’s constitutional reasoning. I have for some time been thinking and writing about the use of dignity in constitutional law (see here). Importantly, there are different concepts of dignity that lead to different ways of thinking about constitutional rights. In the American constitutional tradition, dignity usually (though not always) stands for individual rights and negative liberties, but in Windsor the Court elevates a relatively new form of dignity, what I call the dignity of recognition.

The Court invalidates Section 3 of DOMA because it deprives same-sex couples of the liberty protected in the Fifth Amendment. The liberty, however, is not the same sort found in other civil rights cases—a liberty to undertake some action free from government interference. Rather, the Court strikes down part of DOMA because its “essence” is to interfere “with the equal dignity of same-sex marriage, a dignity conferred by the States in the exercise of their sovereign power.” The liberty in Windsor is about recognition of a specific state policy. According to the majority, DOMA offends the Constitution because it refuses to [...]

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Dignity as Recognition

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 [...]

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Substantive Dignity-Dwarf-throwing, Burqa Bans, and Welfare Rights

Today I explain the second concept of dignity, substantive dignity, from my article Three Concepts of Dignity in Constitutional Law, 86 Notre Dame Law Review 183
.  My introduction and post on intrinsic human dignity can be found here and here.

By contrast to inherent or intrinsic dignity, positive conceptions of dignity promote substantive judgments about the good life.  Dignity here stands for what is valuable for individuals and society at large.  Constitutional courts will sometimes use this conception of dignity to justify political constraints on behavior or to promote values such as community or public morality.   Substantive dignity relates to a “proper” conception of dignity—guiding the individual and society to particular dignified choices.  This form of dignity will often conflict with an individual’s preferences or choices.  As this concept may be less familiar, let me begin with some examples and then further explain the concept.

In a much-discussed French case, Mr. Wackenheim, a dwarf, made his living by allowing himself to be thrown for sport.  The mayors of several cities banned dwarf tossing events.  Mr. Wackenheim challenged the orders on the grounds that they interfered with his economic liberty and right to earn a living.  The case went to the Conseil d’Etat (the supreme administrative court), which upheld the bans on the grounds that dwarf throwing affronted human dignity, which was part of the “public order” controlled by the municipal police.  The Wackenheim case demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.

European politicians have presented similar justifications for banning the burqa or full veil.  French President Sarkozy has supported the ban because the burqa “runs counter to women’s dignity.”  In Spain a legislator called the burqa a [...]

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Dignity as Intrinsic Human Worth

Yesterday I introduced Three Concepts of Dignity in Constitutional Law, 86 Notre Dame Law Review 183 (2011).  Below I explain the first concept of dignity, the dignity of intrinsic human worth.  This may be the most familiar concept of dignity in American culture because of its association with classical liberal principles of individual liberty. This is an abbreviated discussion of the topic, so for a fuller treatment and for more history and examples, please see the article.

The first concept of dignity is the dignity that attaches to the intrinsic worth of each individual.  This is the most universal and open understanding of dignity—it identifies the worth that arises in each person simply by virtue of being human.  Historically, this conception of dignity has roots in classical Greek and Roman thought that extolled the wonder of man.  Similarly, the Judeo-Christian tradition emphasizes the “godlike” nature of man who is made in the image of God.

Importantly, this dignity is not about status or social standing—instead it belongs equally to each person.  In this way, inherent dignity is neutral between different conceptions of the good life—it recognizes and allows for different human goals and aspirations.  It is primarily a liberal, individualistic conception of dignity that depends on human agency or the ability to choose a good life—but it does not turn on any particular choice between good lives.  As we will see, this makes intrinsic dignity different in important ways from other conceptions, such as substantive dignity, which requires living in a certain way, or recognition dignity which turns on whether one feels respected.

Inherent dignity has a natural connection with negative liberty, the classical liberal idea of the maximum degree of freedom from interference by others and the state.  This freedom encompasses so-called first-generation rights such as rights to [...]

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An Introduction to Three Concepts of Dignity

I am very pleased to be guest-blogging at the Volokh Conspiracy about my article, Three Concepts of Dignity in Constitutional Law, 86 Notre Dame L. Rev. 183 (2011).  The article identifies and explains three political and philosophical concepts of dignity found in constitutional decisions.  In my posts, I will explain how dignity can have very different meanings and consequences for constitutional law and political discourse.  I will post slightly modified excerpts from my article over the next week, starting today with the introduction.

The U.S. Supreme Court and constitutional courts around the word regularly use the term human dignity when deciding cases about individual rights and liberties.  For example, in the United States, dignity has been invoked in the context of freedom of speech, reproductive rights, racial equality, gay marriage, and assisted suicide.  Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning.  My article looks at a number of constitutional decisions and concludes that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values.

I identify three concepts of dignity, explaining their philosophical origins and how they affect or are reflected in constitutional decisionmaking.  I will provide a detailed explanation of each concept in subsequent posts, but the three concepts are as follows:  first, the dignity of the inherent worth of each individual, which is often linked to human agency, autonomy, and freedom from interference; second, substantive dignity, which requires living in a certain way and is associated with government policies that enforce a particular conception of dignity; and finally, the dignity of recognition, which seeks respect from the state [...]

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