Judges with Supreme Court aspirations tend to guard their views, avoiding stances and statements that could impede a nomination or confirmation. Judge Neil Gorsuch has done just that, leading observers to look to his influences rather than his issuances. Among them is Justice Anthony Kennedy, for whom he clerked. While Judge Gorsuch and Justice Kennedy may share a bond, they part ways on several issues. One lesser known but critically important point of potential disagreement surrounds a somewhat nebulous legal principle critical to lesbian, gay, bisexual, and transgender, or LGBT, rights: the dignity of free persons.
For decades, the Supreme Court has repeatedly affirmed that individuals’ due process right to liberty also protects their dignity—and shields them from indignity. The concept of dignity encompasses individuals’ innate value as people and right to live free of interference; their right to make important personal decisions; and their entitlement to social recognition or protection from discrimination. This notion of human dignity is at the heart of the Court’s three landmark LGBT rights cases: Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges.
Judge Gorsuch’s writing—both on the bench and in his book against “assisted suicide,” based on his Oxford dissertation—suggests he is, at a minimum, skeptical of the principle from which the right to dignity derives: substantive due process. To be clear, substantive due process, which protects individuals from having their fundamental rights violated without justification, has been part of Supreme Court jurisprudence for more than 100 years.
In one case, Judge Gorsuch made a point of incorporating criticisms of substantive due process. He noted that “some” believe if such a concept existed, it would reside elsewhere in the Constitution. “Others,” he offered, question whether substantive due process “should find a home anywhere in the Constitution.” This critical aside, while mild, is unusual. Judge Gorsuch hews to precedent on substantive due process only grudgingly, after conceding that “the Supreme Court clearly tells us” that substantive due process does have a home in the Constitution.
In his book, Judge Gorsuch went so far as to criticize the Supreme Court for adhering to substantive due process precedent in “case after case.” He also proposed an alternative relevance for dignity, based in equal protection, that could restrict rather than protect individual rights. The recognition of innate human dignity is the foundation for equality, Judge Gorsuch claimed, and equality makes “assisted suicide”—termed “death with dignity” in those states that permit it —unacceptable because all people created equal enjoy an inalienable right to life. This view is troubling, not only in signaling an intent to misappropriate the concept of dignity to restrict individual choice, but also because of the implications for reproductive access, rights, and justice.
Senators must press Judge Gorsuch to commit to upholding Supreme Court precedent based on the recognition of dignity—or admit he would not respect this long-established, critical principle.
The constitutional right to dignity
Justice Kennedy is often credited with introducing the right to dignity into the Court’s reasoning. At Justice Kennedy’s 1987 confirmation hearing, he famously identified dignity, along with individuality and liberty, as central to the Constitution. But Justice Kennedy was merely recognizing and developing a principle with deeper roots.
The relationship between dignity and the right of individual liberty was first made explicit by Justice John M. Harlan in a 1971 opinion upholding free expression. The state could not charge someone with a crime simply for wearing a jacket emblazoned with an anti-war message, wrote Harlan, because the First Amendment ensures people can make their own choices about the views they want to express. The opinion observed, “[N]o other approach would comport with the premise of individual dignity and choice upon which our political system rests.”
Fifteen years later, Justice John Paul Stevens cited the dignity of LGBT people as the basis of his dissent from Bowers v. Hardwick, in which the Court upheld a Georgia “anti-sodomy” law. Arguing that people’s “intimate choices” are protected by the right to liberty, Justice Stevens referred to an individual’s right to decide “how he will live his own life.” According to Justice Stevens, federal judges’ responsibility to protect such rights grows out of “our tradition of respect for the dignity of individual choice in matters of conscience.”
When the Court reconsidered states’ rights to criminalize same-sex sexual activity in 2003 in Lawrence v. Texas, the majority—led by Justice Kennedy—relied on Justice Stevens’ dissent in Bowers to strike the ban. Justice Kennedy’s take was simple: To criminalize sex between same-sex persons violated “their dignity as free persons” and thus, just as Justice Stevens argued, their liberty right under the due process clause of the 14th Amendment.
Dignity also drove the Court’s decision in United States v. Windsor in 2013, which struck the Defense of Marriage Act’s “one man-one woman” definition of marriage at the federal level. The final paragraph of the opinion, authored by Justice Kennedy, notes that state laws permitting same-sex marriage “sought to protect … personhood and dignity.” A federal law denying dignity to persons in same-sex marriages violated their right to liberty both as individuals and couples.
In 2015, in Obergefell v. Hodges, the Court—again represented by Justice Kennedy—ruled that states may not ban same-sex marriage. “There is dignity in the bond between two men or two women who seek to marry,” he wrote. “[A]nd in their autonomy to make such profound choices.” As support, Justice Kennedy cited a striking sentence from Loving v. Virginia, in which the Supreme Court overturned state laws banning interracial marriage: “[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Dignity under threat
If Judge Gorsuch, as his writings suggest, does oppose the dignity principle and is confirmed, he may well attempt to dismantle these landmark cases—and others important to the LGBT community. Dignity is critical to the Court’s decisions surrounding not only intimacy and marriage but also reproductive rights. In Lawrence, for example, Justice Kennedy quoted a 1992 decision affirming Roe v. Wade, albeit with qualifications, in which the Court observed that “choices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment.”
That is why Senators must question Judge Gorsuch on his stance on substantive due process—and dignity. It must be made clear: Rejecting the existence of a constitutional right to dignity means denying LGBT people their most fundamental rights. If Judge Gorsuch were able to erode the Court’s commitment to this principle, LGBT rights could be set back decades. LGBT people would once again have to fight for the right to live openly, free of state-inflicted indignities. But even if Judge Gorsuch does not sway the Court, the fact of his confirmation—the ascendance of a judge who does not believe that the Constitution protects the rights of LGBT people—has devastating implications for their sense of security and identity.
Rebecca Buckwalter-Poza is a Fellow at the Center for American Progress.