The word “dignity” appears 30 times in last week’s Supreme Court marriage equality case, Obergefell v. Hodges. Describing the same-sex couples who aspired to marry, Justice Anthony Kennedy, writing for the 5-4 majority, stated:
Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
In a bitter dissent, Justice Clarence Thomas demurred, stating that “the Constitution contains no ‘dignity’ Clause.” He argued that the government is “incapable of bestowing dignity,” stating flatly that” human dignity cannot be taken away by the government.”
Astonishingly, Justice Thomas then attempted to prove his dubious proposition by citing two extreme and reprehensible government actions that were actually designed to deprive victims of “equal dignity under the law” – slavery and the incarceration of Americans of Japanese descent during World War II:
Slaves did not lose their dignity … because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.
But the government did not “allow” blacks to be enslaved – the laws of the time facilitated and empowered slave owners and enforced slavery.
And the Japanese American Citizens League was rightly “appalled” by Justice Thomas’ blindness to the impact of the government’s shameful and unwarranted forcible relocation and incarceration of 120,000 Americans of Japanese descent, the vast majority of whom were citizens.
In 1942, just 10 weeks after the surprise attack on Pearl Harbor, President Franklin D. Roosevelt issued his Execution Order 9066, providing the legal authority for this deprivation of liberty and dignity. Roosevelt's executive action was issued against the backdrop of widespread, baseless fears that Americans of Japanese ancestry might pose a threat to the U.S – anxiety that was certainly fed by a long history of prejudice and xenophobia direct against Japanese Americans.
Those incarcerated in the camps were uprooted from their communities, separated from their families, their homes, and their possessions, and lost their personal liberties and freedoms until the end of the war.
Tragically, the president's executive order was bolstered by additional congressional enactments. And when the constitutionality of these actions was challenged in two main cases before the U.S. Supreme Court – Hirabayashi v. U.S. andKorematsu v. United States – the Court held that these clearly discriminatory actions by the government were, in fact, justified and constitutional.
Now, 73 years later, the Anti-Defamation League uses the cruel and unwarranted wartime treatment of Americans of Japanese descent as a teachable moment for our nation on the dangers of stereotyping, prejudice, and racial profiling. While we can honor and admire individuals that can retain their personal dignity under the most adverse conditions, there should be no doubt, Justice Thomas, that the government can deprive people of their “equal dignity.”
Fortunately, a Supreme Court majority has now held that the Constitution mandates that same-sex couples are entitled to equal treatment – and marriage equality.