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

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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).
2011] The Right to Dignity 95 basic substantive legal rights and attributes traditionally associated with marriage . . . are so integral to an individual’s liberty and personal autonomy” that these “core substantive rights include . . . the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” 142 Following this cornerstone statement on the role of dignity as a substantive right, the court elaborated: One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of samesex couples while reserving the historic designation of “marriage” exclusively for oppositesex couples poses at least a serious risk of denying the family relationship of samesex couples such equal dignity and respect. 143 The use of dignity by the California Supreme Court has two elements, equally forceful and equally fundamental to an understanding of what the contours of dignity rights might entail in the United States. The first element equates dignity with validation—the respect due by virtue of having a certain status—in this case, that status of being married. The second element couples dignity with equal opportunity, i.e., that everyone ought to have the right to achieve that status acquired by the first element. Thus, in this context, dignity is not only something that the state should be prevented from denigrating, but it is something that the state should actively foster. Marriage, with its indicia or respectability and stability is thus integral to a dignified expression of a common humanity. The California Supreme Court’s use of dignity is thus a fusion of the meanings used by the authors of The Federalist Papers 144 on the one hand and the neoKantians 145 on the other, and represents a novel way for the United States to give shape to dignity rights. 142. Id. at 399. 143. Id. at 400. 144. See infra section II.A. 145. See infra section II.A.
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The Right to Dignity Rex D. Glensy - Columbia Law School

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