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

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130 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 of personal dignity,” but the effect of this injury is to curtail the victim’s personal liberty. 294 Daniel Solove has characterized the policy rationale behind protecting privacy as related to personhood, a “unified and coherent concept protecting against conduct that is ‘demeaning to individuality,’ ‘an affront to personal dignity,’ or an ‘assault on human personality.’” 295 Evidently, the facility that American law has when it comes to discussing liberty interests includes corollary discussions of human dignity in ways that are organic and complementary to both concepts. Another established right in the United States that fits naturally with the right to dignity is the right of equality, encompassing the right to be free from invidious discrimination. “[H]uman dignity provides the basis for equal human rights.” 296 Thus, “The fundamental theme of equality . . . cannot be severed from any genuine commitment to acknowledging the freedom and dignity of the individual,” 297 because dignity has become “a quintessentially personal trait of all human beings and a marker of equality.” 298 It therefore follows from these policy axioms that any jurisprudence of dignity should foundationally recognize that human dignity implies “a social order [that] reflect[s] recognition of the equality of humankind.” 299 In the context of equality, human dignity operates as a leveling factor—the characteristic that every individual shares with everybody else and which functions as the universally unifying element upon which the mandate not to discriminate rests. This normative basis for creating a level playing field for all individuals is thus the primary operative motivator for all antidiscrimination law, and it should be explicitly acknowledged in cases in which the issue is raised. 300 In that vein, the major equal protection cases in the United States, such as Brown v. Board of Education and Heart of Atlanta Motel v. United States, can be seen as an affirmation of the dignity of 294. Id. at 988. 295. Daniel J. Solove, Conceptualizing Privacy, 90 Cal. L. Rev. 1087, 1116 (2002) (quoting Bloustein, supra note 6, at 973–74). 296. Bedau, supra note 33, at 154. 297. Martha Minow, Equality and the Bill of Rights, in The Constitution of Rights: Human Dignity and American Values 118, 128 (Michael J. Meyer & William A. Parent, eds., Cornell Univ. Press 1992) (quoting Elizabeth Cady Stanton). 298. Resnik & Suk, supra note 66, at 1924. 299. Eberle, supra note 11, at 975. 300. See Denise G. Réaume, Discrimination and Dignity, 63 La. L. Rev. 645 (2003) (drawing the parallel between antidiscrimination and dignity).
2011] The Right to Dignity 131 the individual, as AfricanAmerican schoolchildren and patrons of public accommodations could not have the essence of their personhood stripped away with government imprimatur or, at the minimum, government acquiescence. 301 It was the inherent indignity of having to be placed in substandard schools or being turned away at an inn that motivated the equal protection analysis in both of these seminal cases. 302 Not all American laws are cryptic in tying the right to equal treatment to the right to dignity. In fact, some American laws expressly codify the notion of human dignity as equal protection. The constitutions of Montana, 303 Louisiana, 304 Illinois, 305 and Puerto Rico, 306 all in slightly different ways, link their own equal protection clauses (or a subsection of their equal protection clauses) to dignity. While courts in the United States have been more reticent to openly draw the parallel between equality and dignity, other courts 301. Brown v. Bd. of Educ., 347 U.S. 483 (1954); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1965). 302. William Parent advances the same thesis: “I am suggesting that in these segregation cases members of our highest court displayed a genuine concern for the value of human dignity.” Parent, supra note 130, at 59. 303. 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, firm, corporation or institution 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. Mont. Const. art. II, § 4. 304. “Right to Individual Dignity. No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs or affiliations.” La. Const. art. I, § 3. 305. “Individual Dignity. To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national or regional affiliation are condemned.” Ill. Const. art. 1, § 20. The intersection between equality, dignity, and the prohibition of hate speech is interesting. It is quite probable that the proscriptions on hate speech rely on an intersection of protecting human dignity and equality seeing that the categories of people protected from such vilification are those traditionally associated with antidiscrimination safeguards such as race and gender. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2323 (1989) (tying the targeting of hate speech to antidiscrimination norms); Daniel Statman, Two Concepts of Dignity, 24 Tel Aviv U. L. Rev. 541, 577 (2001) (linking dignity and gender discrimination). 306. “The dignity of the human being is inviolable. All men are equal before the law. No discrimination shall be made on account of race, color, sex, birth, social origin or condition, or political or religious ideas.” Puerto Rico Const. art. 11, § 1.
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