Document Type

Working Paper

Publication Date

2011

Center/Program

Center for Gender & Sexuality Law

Abstract

This essay offers a commentary on Jeremy Waldron’s Shoen Lecture, Dignity, Rights, and Responsibilities, delivered at the Sandra Day O'Connor College of Law at Arizona State University in October of 2011. The Shoen Lecture, building on Waldron’s account of the relation of rights and dignity set out in the 2009 Tanner Lectures, provides a robust conception of human dignity based not on the inherent moral worth of each human person, but rather on a notion of status or rank. The most compelling contribution of Waldron’s new paper is his careful unbraiding of the complex relationship of rights, responsibility, and a liberal conception of human dignity. My aim in this response-essay is to consider more deeply the implications of an account of rights that is premised upon an aristocratic conception of human dignity. Specifically, I am interested in the way in which responsibility is not merely a symptom or correlate of a certain set of rights understood as responsibility-rights, but in how behaving responsibly is expected of those who aim to have their rights claims recognized by others. In this sense, possessing dignity is not inherent in one’s identity as human, but rather takes work, a kind of work that Waldron describes as “the voluntary self-application of norms.” I offer a close reading of the litigation strategy pursued in the challenge to Proposition 8 in California to illuminate the curious turn gay rights cases have taken away from arguments based in sexual liberty or neutrality and toward a thick conception of morality. After Bowers, the lesbian and gay community understood that it had reputational work to do to ready itself for the successful presentation of rights claim to legislatures and courts. Substantial numbers of lesbian and gay people have had to build lives, indeed lives on view for the rest of the society to witness, characterized by commitment, monogamy, parenting, moderation, and conformance with gender norms. Having become recognizable as respectable, the courts could recognize them as dignified, rights-bearing subjects of equal rank to other (heterosexual) legal citizens. This example teaches us how notions of dignity and responsibility-rights come at a price. At least in this context, they provide a less than satisfactory predicate for legal-citizenship.

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