The Right to Dignity Rex D. Glensy - Columbia Law School

94 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65
actually enumerate dignity as a protected right under their
constitutions. Of these states, only Montana has developed a body of
law that pertains to the right to dignity, even though it is usually
paired with another right, such as equal protection or privacy, to
boost its effect or to give it more emphasis. 139 Montana’s
jurisprudence demonstrates that even though the right to dignity can
function as an independent right, in actuality it gives heft to other
rights being upheld by the court. 140
Probably the most important state case to refer to an
individual’s right to dignity is In re Marriage Cases, the decision by
the California Supreme Court that established the right of samesex
couples to marry under the California Constitution. 141 California is
not one of the states that enshrines the right to dignity within its
constitutional text; nevertheless, the Court found that “the core set of
group of persons by reason of or by reference to religious, racial, ethnic, national
or regional affiliation are condemned.”).
137. See La. Const. art. I, § 3 (entitling its equal protection clause “Right to
Individual Dignity”).
138. See Mont. Const. art. II, § 4 (“Individual Dignity: The dignity of the
human being is inviolable. No person shall be denied the equal protection of the
laws. Neither the state nor any person . . . shall discriminate against any person
in the exercise of his civil or political rights on account of race, color, sex, culture,
social origin or condition, or political or religious ideas.”)
139. See e.g., Oberg v. Billings, 674 P.2d 494, 285 (Mont. 1983) (noting that
“subjecting one to a lie detector test is an affront to one’s dignity,” as well as a
violation of Montana’s equal protection clause); Armstrong v. State, 989 P.2d 364,
389 (Mont. 1999) (suggesting that a statute prohibiting certified physician
assistants from performing abortions violates Montana’s dignity clause in
addition to its privacy clause); Albinger v. Harris, 48 P.3d 711, 719–20 (Mont.
2002) (holding that regarding an engagement ring as a revocable gift conditional
on marriage is contrary to Montana’s dignity clause and conducive to gender
discrimination); Walker v. State, 68 P.3d 872, 883 (Mont. 2003) (ruling that
Montana’s cruel and unusual punishment clause is coupled with its dignity
clause, thereby providing a higher standard of inquiry than its federal equivalent
where such challenges were raised in court).
140. For a complete overview and analysis of Montana dignity
jurisprudence see Heinz Klug, The Dignity Clause of the Montana Constitution, 64
Mont. L. Rev. 133, 149 (2003) (emphasizing the role of dignity as the foundation of
many other rights); see also Matthew O. Clifford & Thomas Huff, Some Thoughts
on the Meaning and Scope of the Montana Constitution’s ‘Dignity” Clause with
Possible Applications, 61 Mont. L. Rev. 301, 301–2 (2000) (criticizing the lack of
substance of the Montana Supreme Court’s dignity jurisprudence).
141. In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (arguing that limiting
marriage exclusively to oppositesex couples is not a compelling state interest for
equal protection purposes and that the California Constitution guarantees the
basic civil right to marry to all individuals regardless of their sexual orientation).