Article Review/Response: Robert Leckey on Michèle Finck’s “Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective”

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Robert Leckey reviews Michèle Finck’s article The Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective, which appears in the current issue of I•CON.  Michèle Finck then responds to the review. The full article is available for free here.]

Review by Robert Leckey

—Robert Leckey, Director, Paul-André Crépeau Centre for Private and Comparative Law, and Dean Designate, McGill University, Montreal

In her ambitious comparative article, Michèle Finck attempts to make sense of the function that the notion of human dignity has played in courts’ and legislatures’ recognition of gay rights. Her gaze ranges widely, taking in international human rights instruments and developments from several European states, Canada, South Africa, and Mexico, while maintaining a steady (if unacknowledged) focus on the U.S. She argues that dignity’s conceptual flexibility – and intuitive appeal – makes it an effective justificatory tool. It mediates between legal sources denying the possibility of same-sex marriage and pro-gay socio-cultural change. For example, a revised understanding of dignity helps the U.S. Supreme Court to advance gay rights in the face of established doctrines of equality or federalism.

Readers will find much to appreciate in Finck’s important and timely article. Indeed, while her article entered production too soon to deal with last June’s Obergefell v. Hodges, that historic judgment by the U.S. Supreme Court seems to bear out Finck’s hypothesis. Justice Kennedy invokes dignity nine times and in his dissent, Roberts C.J. notes that the U.S. Constitution has no “Nobility and Dignity” Clause. While Finck’s article gave me much to think about, space constraints limit me to two critical concerns from distinct registers and sensibilities.

The first has queer overtones, but should resonate even for legal liberals concerned with gay rights. Finck appears to accept uncritically that recognizing same-sex marriage is tantamount to granting lesbians and gay men full citizenship. She refers once to marriage as simply one benefit of citizenship, but elsewhere she lets pass without challenge the courts’ understanding of marriage equality as homosexuals’ inauguration into full citizenship. Yet it is a narrow conception of citizenship that – in line with Andrew Sullivan’s Virtually Normal (1995) – takes as its indicia capacity to do military service and to marry. A richer conception would make space for concerns about ongoing repression of consensual but nonnormative sexual practices, including in the U.S. Indeed, Obergefell worrisomely implies that unmarried lives are less dignified than married ones. On this point, Yuvraj Joshi in a recent paper convincingly traces a shift, under cover of dignity, from respect for the freedom to choose towards the respectability of choosers and their choices.

In any event, it is problematic to associate same-sex marriage with full citizenship for even marriage-minded gay and lesbian Americans so long as they lack general protection from discrimination based on sexual orientation. From outside the country, it is baffling and horrifying that in some states gay and lesbian Americans can be fired or denied housing on account of a sexual orientation manifested by their newly permitted marriage.

The second concern relates to comparative method and Finck’s selection and treatment of cases. Naturally, every project – comparative or not – requires choices and limits. Still, scholars such as Ran Hirschl have raised significant concerns about case selection in comparative constitutional law. Finck’s choices risk weakening her analysis and conclusions. Her exclusions contribute towards the fashioning – typical of universalist comparative constitutional work – of a single overarching account of dignity’s function regarding gay rights. Early in the article, however, Finck notes that not only proponents but also opponents of gay rights have invoked dignity. For instance, natural lawyers such as Robert George have suggested that same-sex marriage liberates sexual practices that are beneath the dignity of humans as free and rational creatures. Without justification, Finck stipulates that she limits her analysis to instances in which human dignity is invoked in support of gay rights and marriage equality. It’s obviously a simpler story to tell about dignity’s function in gay rights cases if you exclude the examples where it functions otherwise.

Another difficulty arises from confining the gaze to case law on gay rights, rather than situating those cases in a broader terrain of constitutional law and adjudication. (Finck includes international instruments and constitutions that use dignity more generally.) The problem with collecting references to dignity in gay-rights cases is that we can’t judge their distinctiveness in relation to practice in other constitutional contexts. Finck’s article doesn’t allow us to judge whether dignity is used more or differently in gay-rights cases than in other constitutional litigation – but surely the crucial, though unstated, part of her claim is precisely that. To be sure, my casual impression is that the use of dignity in the American gay-rights cases is distinctive and that Finck describes it persuasively. That the chief justice fastens on dignity in his dissent suggests as much. But without evidence from comparison across different kinds of cases, we have to take it on faith.

Moreover, that distinctiveness is much less plain in Canada and South Africa, two countries that the article singles out (and which I address in my Bills of Rights in the Common Law). In Canada, it is true, the leading appellate court decision characterizes the traditional, exclusionary definition of marriage as offending the dignity of persons in same-sex relationships. It is important, though, that the Canadian marriage litigation occurred during the decade when the Supreme Court of Canada’s approach to the constitutional guarantee of equality made harm to essential human dignity the necessary condition for discrimination. At the time, lawyers would have based the equality claim for any group on a violation of human dignity. In turn, any judge allowing an equality claim would have used that lexicon. At first blush, there’s nothing gay-specific about the Canadian reliance on dignity.

As for South Africa, the 1996 final Constitution and the transformative mandate given its Constitutional Court radically distinguish its context from Finck’s others. The Constitution affirms that the Republic of South Africa is founded on the value of human dignity. Its equality guarantee offers protection from discrimination based on sexual orientation. It is thus hardly surprising that judges regularly refer to dignity and that gay-rights claims have met success. Dignity’s function there is not – as it may be elsewhere – to justify revising an established interpretation.

Granted, doing comparative law requires stripping away details. One of the problems with culturalist approaches – often so derisory towards the functionalist comparison with which Finck aligns herself – is that the call for ever more detail, beyond legal sources, can be paralyzing. In her widely ranging article, Finck embraces a broader set of sources than I would ever dare. Still, I am uncomfortable with framing an account about dignity’s function in gay rights cases across multiple jurisdictions by sweeping aside basic doctrinal differences. Finck’s account offers valuable insights regarding American developments, but I would reinterpret the comparative data. My hunch is that dignity’s function – whatever its content – is much more context-specific and plural than Finck suggests, making the story she sets out to tell richer and more fascinating yet.

A Reply to Robert Leckey

—Michèle Finck, London School of Economics

I am grateful to Robert Leckey for his review of The role of human dignity of gay rights adjudication and legislation. A comparative perspective. Preparing this reply allowed me to go back to an article I wrote two years ago, and to think about it again, also in light of new developments.

Let me start with the scope of the article. Leckey criticises that I solely engage with instances in which human dignity has been invoked in support of gay rights and marriage equality. I have indeed consciously limited my analysis to these cases, for two reasons. First, while the article recognises that dignity has been invoked in discourses that oppose such rights; my intention wasn’t to provide a full account of the relationship between human dignity and gay rights. What I was interested in instead was exploring why human dignity has been relied on by courts and legislators around the world to support gay rights, and particularly in the absence of a clearly defined legal concept of human dignity in most of these jurisdictions. I wrote this article because, in the course of doing research on my ‘actual’ research focus: city policymaking (with regard to gay rights), I came across references to human dignity in support of gay rights again and again. It was this phenomenon that I wanted to write about, trying to make sense of why this concept has been relied on transnationally to such a pronounced degree by those promoting gay rights. Second, while the concept certainly has a place in the anti-gay-rights movement, writing about it would not have been much of an exercise in legal analysis. While it is true that opponents of gay rights have frequently invoked arguments pertaining to the dignity of the institution of marriage, or the undignified nature of same-sex sexual intimacy, dignity has not occupied a central place in the context of contemporary court decisions or legislation.

I agree with Leckey that the number of jurisdictions I survey is not unproblematic. Case-selection is always difficult in comparative research and people will always disagree on the ‘ideal’ number of jurisdictions to study. The reason why I believed it useful to cover as many jurisdictions as I did is because this allowed me to stress the main point the article makes: that the concept of human dignity has been relied on in many jurisdictions to advance gay rights and in particular marriage equality, either through adjudication or legislation, and this despite the absence of a fixed content of dignity in jurisdiction application in most legal orders. The article thus claims that dignity has emerged as a justificatory tool for advancing gay rights, and, and this is the second key claim I make, that this reliance is often accompanied by references to legal change abroad. I recognise that this does not allow for an in-depth survey of the various jurisdictions, but again that was not my aim. While the article recognises that in some legal orders surveyed, such as for instance South Africa, dignity exists as a constitutional concept independently of gay rights, this does not deny that the concept still fulfilled the same function in key gay rights cases as it does elsewhere.

Leckey also mentions that Obergefell v. Hodges, the marriage equality case decided by the U.S. Supreme Court last summer, bears out my hypothesis. I won’t go into detail as to how that is the case as I have already previously done so on this blog. Leckey however also draws attention to the fact that in Obergefell a version of dignity becomes apparent which marks ‘concerns about ongoing repression of consensual but nonnormative sexual practices’. I agree with Leckey on this point. In Obergefell, statements by Justice Kennedy such as ‘[t]he lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life’ indicate that gay unions are recognised to the extent that they correspond to ideals of heterosexual unions (it is worth pointing out that the gay rights movement and strategic litigation in the U.S. have put much effort into portraying gay unions to correspond to that ideal). This is indeed especially worrying in a country where discrimination on the basis of sexual orientation remains legal under many circumstances.  As Yuvraj Joshi in fact illustrated, Obergefell ‘shifts dignity’s focus from respect for the freedom to choose toward the respectability of choices and choice makers.’ Obergefell was decided a year after I finished drafting my paper and, for editorial purposes, it was not possible for me to amend it to account for this decision. While the use of dignity in this case, as in others, raises a number of concerns, Obergefell confirms what my essay set out to document: that judges wishing to further gay rights (in this case Justice Kennedy creating a constitutional principle of marriage equality) found an ally in the concept of human dignity to further their aim, despite the absence of a clear textual hook.

I fully agree with Leckey that the story of gay rights and marriage equality is plural, complex and context-specific. It is however also a transnational movement that has consciously pooled resources, strategies, and narratives. My aim was to draw attention to the fact that this is also reflected in the law. We all know that jurisdictions differ and that different judges rely on different legal texts and concepts. This, on its own, makes it difficult to understand the complex puzzle of the rapid changes occurring in this context in recent years. The aim of my essay was to shed light on a little piece of this complex puzzle in stressing that in addition to these differences, commonalities can be pinpointed to the extent that human dignity has made a – maybe unexpected and surprising – appearance in these decisions and that this phenomenon can be better understood by looking beyond the borders of individual jurisdictions.

Suggested citation: Robert Leckey and Michèle Finck, Article Review/Response: Robert Leckey on Michèle Finck’s “Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective,” Int’l J. Const. L. Blog, May 10, 2016, at: http://www.iconnectblog.com/2016/05/article-reviewresponse-robert-leckey-on-michele-fincks-role-of-human-dignity-in-gay-rights-adjudication-and-legislation-a-comparative-perspective/