Queering Justice Thomas: Theories of Dignity in Obergefell

I. Introduction

The discourse of dignity constitutes one of the battlegrounds between the majority and minority in Obergefell v. Hodges (Director, Ohio Department of Health, 576__U.S. (2015)), the recent Supreme Court decision ordering all states to grant marriage rights for same-sex couples. ¹

This case actually consolidated cases coming from the US Court of Appeals for the Sixth Circuit who had overruled previous district court decisions that declared the respective state bans to be unconstitutional. ² Sixteen same-sex couples and seven of their children, a widower, a funeral director, as well as an adoption agency brought the cases. The particulars of the cases relate to laws governing the issuing and recognition of marriage certificates; adoption; birth and death-certificates; as well as Department of Defense regulations. Running through the discussion of these we find however the theme that the marriage bans in question stigmatize, demean, or humiliate same-sex couples and their children. The dignity of the plaintiffs is at stake.

Whereas the majority opinion celebrates, in Justice Kennedy’s soaring language, the dignity of the institution of marriage, Justice Thomas’s dissenting opinion situates dignity outside of the purview of the state and its institutions.

Thomas, to my mind correctly, diagnoses that in the logic of Kennedy’s understanding of marriage and dignity, the state confers dignity by granting access to one of its regulatory institutions. In contrast, Thomas holds fast to an idea of dignity that is independent of state or even civil action. To illustrate his point, he uses the stark examples of the dignity of internment camp prisoners or of slaves who – Thomas claims – do not lose their dignity because of the treatment they suffer from the state or from state-sanctioned economics.

Given that dignity discourse in the arena of constitutional courts operate to characterize what it means to be human and what kind of claims citizens can levy against their state, the question of how to source any claim to dignity is important. ³ Thus we should attend to the opposing philosophical viewpoints on this issue that motivate Kennedy and Thomas’s opinion in Obergefell. Doing so allows us to analyze in more detail the theoretical scaffolding implied in grounding legal claims to dignified humanity.

Both justices’ views on dignity have precedent in the philosophical history of the concept. Kennedy’s position on dignity seems to connect with older theories that link dignity to status (Dignity as Quality of Status Theory; hereafter DST). Following Roman conceptions, dignitas is not something shared by just any human being but denotes a status attached to a particular noble and ennobling social position. In contrast, Thomas’s view seems to connect with the position that dignity is not a status marker but reflects the inalienable value of a person that inheres to her “no matter what they do or happens to them.” ⁴ Here dignity is inextricably linked to our humanity (Dignity as Quality of Humanity Theory; hereafter DHT). Thus, Obergefell systematically raises the question of how dignity and citizenship are related.

Addressing it leads us into an analysis of the sexual politics of recognition. Who and whose bodies are recognized as representing dignified humanity and citizenship? And what is the role of marriage in being recognized as citizen? Queer theoretical interventions into the politics of same-sex marriage have been and continue to be critical of the push to house same-sex sexuality within the framework of dignified marriage. ⁵ Thus, while some gay and lesbian activists may celebrate with Kennedy’s language the fact that Obergefell gives us access to the dignifying status of marriage, others may be more sanguine. And surprisingly, the philosophical backbone of Thomas’s position on dignity can help us analyze the problem of gaining recognition through access to a state-controlled institution, such as marriage. Thomas may seem an odd conversation partner given his political and legal positions on lesbian, gay, bisexual and transgender (LGBT) rights proper. Yet, queer theorists often read seemingly unfriendly texts against the grain of authorial intention.

II. A Queer Reading of Dignity and Obergefell

From queer reflections on the connection between citizenship and sexualities we can retain the following insight: Full participation in a body politic requires not only formal (voting) rights but also access to cultural, social, racial and sexual privilege. In the words of the historian George Mosse, the contemporary order of liberal politics rests on the dual columns of constitutionality and respectability. ⁶ Constitutionality presents the vision that citizens are equal under the law. The politics of respectability, on the other hand, define who counts as a fully politically, economically, racially, and culturally enfranchised citizen whose life de facto matters to the state. In reverse, as Evelyn Brooks Higginbotham and others have demonstrated the (false) promises to and requirements of respectable citizenship discipline and constrain marital and sexual practices. Access to full participation in the state comes with a price. ⁷

Kennedy in Obergefell seems to fall neatly in line with these insights, in that the opinion presents marriage as providing access to the full status of dignified citizenship. Kennedy’s position is thus immediately worrisome from a queer perspective. Access to respectable marriage, a sexual order worthy of the dignity of citizenship, was historically profoundly racialized and continues to be so. Only certain racialized and classed bodies come with the assumption of respectability whereas others are constantly suspect. Indeed, the discourse extolling the two-parent, nuclear family structure is itself an instrument of racially based exclusion. As Meg Wesling points out, the dignity of marriage protects only certain racialized bodies from state violence. Thus, Wesling warns that we need to attend to the racial quality of judicial debates about same-sex marriage. ⁸ Given the intersection of racial and sexual modes of oppression this warning is worth repeating.

In this article I take up Wesling’s challenge by asking, how is the conflict over dignity in Obergefell enabled by a particular racial and sexual dynamic of distributing power within a citizenry. To address this question I will connect the Kennedy-Thomas controversy to what I see as a foundational theoretical discussion of the philosophy of dignity and citizenship. Drawing on a distinction between active (full) and passive (defective) citizenship and dignity in Kant, I will argue the following: Kennedy’s paean of the dignity of marriage assumes citizens that already have a claim on state power. Here the question is: How can these otherwise empowered and privileged citizens more fully participate in the power of a state that they can claim as their own and that in turn claims them at least as passive citizens?

As we will see, by anchoring dignity in fuller participation in the state, Kennedy’s DST framework overlooks however bodies that state and ideological practices mark as lives existing outside of governmental protection. Whither then the dignity of the women and men whose lives do not matter to the state, given that their bodies are destroyed by racialized police violence, systemic economic destitution, and other practices of deep seated and institutionalized racism? Why should these men and women strive to gain dignity from the hands of the state? Here Thomas’s dissent can help illuminate the power configurations that make an alternative claim to dignity possible in DHT. In particular, I will present Judith Butler’s politics of vulnerability as an example of conceiving of human dignity from the perspective of those whose lives are violently and systematically excluded from the purview of the state. Doing so will not only ground Thomas’s position philosophically but will also answer critics of Butler who claim that her ethics of vulnerability is based on under-theorized ontological assumptions.

III. Kennedy, Kant, and Two Perspectives on Dignity

Let me first discuss Kennedy’s position that implies, according to Thomas, that dignity is a status designation derived from (full) participation in the state.

We find in the majority ruling claims that support, indeed, the “dignity as status designation” position of DST. For example, the majority writes, “the lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.” Here marriage itself is an ennobling and dignifying status open for all. Moreover, the decision underscores the importance of the dignified status of marriage by asserting, with the help of Confucius and Cicero, that marriage is the foundation of society and government. (Whether the kinds of marriage these thinkers had in mind should be the foundation of an equitable and just government, is another question.) Secondly, the decision contains passages that see dignity as an outflow of humanity. The majority states that lesbians and gays have a “just claim to dignity,” a claim that points to a source of dignity beyond governmental action. Similarly, state interventions into most intimate personal choices, like that of a romantic partner, undermine a person’s dignity, a dignity that seems to preexist state approval. ⁹

The language of the majority seems to oscillate between DST and DHT. It tilts toward DST when the opinion discusses the harm inflicted by laws preventing same-sex couples from entering marriage. “This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. […] It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.” ¹⁰

By regulating access to full citizenship via access to marriage rights, the state can thus demean or dignify. Consequently, according to Thomas, the majority “rejects the idea […] that human dignity is innate and suggests instead that it comes from the Government.” ¹¹

It may seem as if Thomas overreaches in his diagnosis of the majority. At most, the majority seems to oscillate between the two theoretical positions. But as we will see, this oscillation systematically leads to deflating DHT to DST. To see this deflationary potential, let us turn to Immanuel Kant. As Jeremy Waldron shows, we can find in Kant a similar interlacing of these two theories of dignity. Analyzing this precedent for the interconnections between these two positions on dignity provides us with analytic tools to understand the deflationary potential of DHT to DST in the creation of a hierarchized body politic.

On the one hand, like DHT Kant envisions a shared human dignity that should be encoded in the law. Every human being has a legal right to be respected in her dignity. Discussing moral duties a man [sic!] owes to his fellow man [sic!] in The Metaphysics of Moral Kant writes, “Humanity itself is a dignity.” (§38) It is thus a universal duty to respect human beings independently of their moral failings. In contrast, contempt is an active and outward denial of this very dignity to which even a “vicious person” [der Lasterhafte] is entitled. (§39) Since this point will be important later on, let me flag already that contempt is thus a reaction denying another’s humanity. ¹²

On the other hand, the phrase “a dignity” [eine Würde] is reminiscent of DST by presenting dignity as a status among others. Humanity is not presented as the dignity or the essence of dignity (Die Würde schlechthin, as one could say in German). Thus, it seems that humanity itself is a status designation that comes with a status appropriate dignity. A few lines earlier Kant in §37 defines respect as the recognition of “a dignity […], i.e., of a value that has neither price nor equivalence that could be used to trade in this object of estimation.” ¹³ What, then, is so valuable in the status “human” that exempts it from our economic order?

To address this question, Kant uses language that is reminiscent of an idea that is central to his moral philosophy, the Kingdom of Ends. Humanity itself is a dignity conferring status because humans shall never be used simply as a means but must always be treated as ends. Therein lies humanity’s dignity, writes Kant. Thus, by respecting each other’s self-determination as ends, humanity “elevates itself over all other beings” and things in this world that can be used.

Here, then, lies a subtle but powerful link between dignity as civic status and dignity as a quality that all human beings share: Humanity’s membership in the kingdom of ends is both of moral and political consequence. It is our capacity to be lawgivers in this kingdom that secures that we should not be treated as mere means, i.e., as mere objects in a natural order. What gives us “dignity” as rational beings is this legislative ability to subject ourselves only to those laws that we give ourselves. ¹⁴

Kant’s text thus moves between DST and DHT. But he also conceives of DHT in terms derived from DST. Thus, it is not clear that within the world of Kant’s text we can clearly distinguish between dignity as status or as human attribute. This slippage in Kant’s text between moral and political law can lead one to conclude, as Waldron does, that in their moral nature, all Kantian humans are “(potential) citizens. […] So our human dignity is in large part the dignity of (potential) citizenship.” ¹⁵ In this reading the moral status of dignity shapes its legal, civic nature. Yet, we could also turn this around, given that Kant seems to think of the dignity conferring status of humanity in political terms. In my inverted reading, the legal status and dignity of citizenship shape the nature of the status designation of the human.

Attending to the Kantian slippage between the moral and the political can help us understand that more than pragmatic considerations is involved when Hannah Arendt claims that human rights require, indeed, citizen rights.

“The Rights of Man [sic!] … had been defined as ‘inalienable’ because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them.” ¹⁶

This lack of protection is linked to the lack of self-government. Human beings without a government of their own realize that they do not have inalienable rights. Any given government will only be willing to guarantee the humanity of those bodies that are seen as constitutive for that government. Government protects only its own, and those who do not own a government, who lack one of their own, thereby lack in any meaningful sense inalienable human dignity. Systematically, the allegedly inalienable dignity designation of “human” is grounded precisely in the capacity to have a government of one’s own, to self-govern. If this capacity is absent, then the dignified status of a human has the form of a presence of an absence.

In sum, in the status interpretation of dignity, the dignity of a citizen (i.e., the ability to govern, to make laws for one’s own body politic) systematically grounds and pragmatically protects the dignity designation of humanity. DHS deflates into DST. ¹⁷

If, however, the dignity conferring status designation as citizen is prior to and casts as its own shadow the dignity conferring designation of human then limitations in who counts as a citizen limit who counts as a human.

Kant, indeed, limits active citizenship. The right to govern the affairs of the state belongs only to men, to those who are deemed competent, or to those who are not dependently employed (with the exception of civil servants, such as university professors in Königsberg). In contrast, passive citizens who are excluded from decision-making and voting enjoy freedom and equality derived from the fact that they are “human beings who together constitute a people.” ¹⁸

Note in this peculiar formulation again the slippage between grounding freedom and equality in human and in civic terms. A passive citizen enjoys such rights because she is considered to be a member of a given people. Thus the text seems unsure about whether to ground these rights in human or national qualities. What constitutes a people, however, is membership in the same republic, a membership that is tenuous for passive citizens. Passive citizens have a government of their own in the sense that a government claims them as beneficiaries of governmental action. However, it is not their own government, since owning a government requires deciding its course.

In addition to this distinction between passive and active citizens, Kant’s texts introduce a third category of people. The humans who constitute a people can be seen as having been generated by their common mother, the republic. Yet they should not mix with the savages who live next to them in lawlessness. ¹⁹

We the children of the republic see with “deep contempt” and as “raw, beastly and degrading” [viehische Abwürdigung] the political attachments of the “savages,” [!] i.e., of humans who live outside of the structures of a lawful order. ²⁰ Recall that Kant claimed that it was a duty to refrain from contempt towards even the vicious person within a republic.

Apparently, in Kant’s view living outside of this political order corrodes one’s humanity whereas engaging in immoral actions does not. (Given that Kant’s oeuvre has a substantial amount of racial and racist prejudices this hierarchization of human dignity should not surprise.)

The Kantian text, then, allows us to see a complicated and, if we follow Arendt, realistic understanding of human dignity as a status dependent on that of the status of citizenship: universal human dignity of passive citizens is a shadow, an absence made known through the presence of the status of dignity derived from active/full citizenship. In contrast, given that DST curtails the contours of DHT the dignity of humans without a government of their own is nothing but an absence. These humans live in a political context that degrades them (like drawing and quartering does) and thus erodes their humanity. The conception of dignity as a human quality deflates into the conception of dignity as a civic status.

In the world of these philosophical texts, gendered and economic oppression reduces therefore some humans to the status of passive citizens with a tenuous hold onto the dignity status of compatriot. This point can remind us of an insight of feminist substantive theories of autonomy: the ability to act autonomously can be degraded by oppressive social structures. Autonomy can exist and flourish only through the exercise of the capacity to make decisions and through cultural, social, and economic messaging that induces a person’s trust in her judgment and values. Thus, “passive” citizenship reflects economic and gendered structures that aim to actively inhibit the attainment of the dignity status of an “active” citizen. ²¹

While voting rights or marriage rights confer a “dignity” status on some co-inhabitants of the US polity, a queer political intervention could wonder, what other gendered or economic obstacles to active citizenship structure our society? Wesling observes that the precursor to Obergefell, US v. Windsor (570 U.S. ___ (2013)), while also full of references to the dignity of married life, is at heart a decision about property rights of an affluent white woman. Therefore, we could tentatively and inconclusively read Windsor and Obergefell as ensuring the economic status of some women, and thus as strengthening their claims to active citizenship. Yet after Obergefell, the question remains: what are the economic constraints on active citizenship?

As Wesling points out, we must also pay attention to the ruling that preceded Windsor by one day, Shelby County, Alabama v. Holder (570 U.S. ___ (2013)). The judicial contest over same-sex marriage happens simultaneously with the retrenchment of state intervention limiting voting rights for African Americans. By limiting their access to full active citizenship, the legislatures, with court approval, aim to force Black Bodies into “passive” membership.

Kant’s text can alert us to yet another register of oppression attacking men and women who are slotted into the category of the ungoverned human. ²² They are marked as extra-political bodies, “degraded” in their humanity and incapable of consideration as passive citizens because they are placed outside of a republic. Placed outside of the bounds of government, they are denied a government of their own and consequently no government claims them (fully) as compatriots.

This register of oppression actively and explicitly corrodes the duty to respect human dignity even in the form of a presence of an absence. Learning from Wesling’s intervention allows us to name US institutionalized racism as belonging to this type of corrosive oppression. Institutionalized racism marks some men and women as extra-political bodies.

The dignity status allocations of “active citizen human,” “passive citizen human” (whose dignity is in the mode of present absence) and “ungoverned (savage) human” (whose dignity is degraded into absence) operate in complex interrelations. A state may claim that a group of people was nominally constituted as active citizens with voting and other civic rights; yet the state may simultaneously be invested in pushing them into passive citizenship status; while marking their bodies as “ungoverned” by subjecting them to policies and structures that eradicates their claim to dignity.

Dignity in this model, like in Justice Kennedy’s paean, is a status conferred by governmental actions. As such, dignity operates as a tool of creating and regulating access to the fluid political status designations of citizen.

In such a model the expansion of dignity is inextricably linked to the move towards active citizenship. Indeed, Kant proscribes this move as a duty for all humans. The political struggle for dignity is thus immediately a struggle for the transition from passive to active citizenship. The struggle is won if the state grants this status designation for the struggling group.

However, this model of political struggle obscures the lives, motives, and bodies of the ungoverned. Given that the state makes its contempt for their humanity abundantly clear, why should accepting a path to human dignity via passive or active citizenship be productive? Why grant this particular state this particular power over dignity? For the pragmatic reasons that Arendt pointed out, it may be necessary to accept a form of state-sponsored dignity. But if that same state marks one through its violent actions as belonging to the ungoverned it seems important to accept this status only strategically, while simultaneously endorsing a claim to dignity that does not depend on that state. But what are resources to establish such a claim for dignity that is grounded outside of state power?

IV. Thomas, Butler, and Obergefell

Let us turn to Justice Thomas’s rejection of the claim that dignity is a status granted by the state. According to Thomas, dignity is a non-political value that state or economic power can neither grant nor destroy. Thomas argues that this vision of dignity operates within the Declaration of Independence. I do not want to follow Thomas here in parsing the Declaration as authoritative text since doing so seems to be an argument from authority that yet again links DHT to a particular state. What, then, would constitute a queer retrieval of Thomas’s claim? In the hope for establishing a claim to dignity that does not deflate into dignity as status designation in the political order, let me now turn to Judith Butler’s reflections on vulnerability and grief and Mona Lloyd’s critique of Butler. ²³

Turning to grief and vulnerability seems particularly appropriate given the impact AIDS and AIDS activism had for the development of gay political consciousness and power. Indeed Butler points out that the experience of loss can lead to political organization and action. Thus it is not surprising that one focus of gay activism was to ensure that bodies that were previously deemed to be ungrievable were being mourned and thus entered into the public register of loss. For example, in Germany I was involved in organizing and holding funerals for victims of AIDS. I remember each funeral as a public claim to dignity for the deceased. Many times, these ceremonies happened without families present. They did not consider their sons or daughters grievable; or they could not declare their grievability in the face of an ideology that saw these bodies as disposable. I remember families who could only see or acknowledge their daughter’s or son’s body as grievable if a respectably grievable diagnosis, such as cancer, was publicized. And I recall the bodies of those for whom nobody grieved, whose bodies were disposed of with perfected rituals without affect.

Beginning in Precarious Life, Undoing Gender or Giving an Account of Oneself, Butler develops an ethic and politics of vulnerability. She focuses on the experiences of loss and mourning because in them we realize our intricate dependence on one another. ²⁴ Through attending to our losses we attend to our constitutive porosity or inter-being, as I want to call this phenomenon. This shared experience of interconnected human bodies lies in the fact that we fundamentally and consistently need one another in order to survive. I am “invariably in community” with others and dependent on “people whom I do not and may never know.” ²⁵ In mourning we acknowledge this anthropological datum without aiming to destroy those on whose bodies we depend.

Whereas Kant bases the political and moral sphere in a normative vision of the human capacity and realization of self-determination, Butler grounds her normative vision of political practices on the reality of interdependence. Mourning is the affective awareness and work that brings to the fore this interconnected quality of human bodies. Through mourning our losses we enter into an affective and ethical awareness of being in community.

Grieving and mourning reveals that the ties to the one(s) I have lost are the very ties that constituted me. My own self is lost. I realize how much of myself is intertwined with another body. In grief I realize my dependence on interdependence. (Butler, Precarious Life: 22) As Lloyd writes, mourning and grief reveal that “the one thing that all humans share is a physical dependence on other humans for their survival.” (4) Therefore, grief’s political power to tie human bodies together brings to relief the question: “Who counts as human? Whose lives count as lives? And finally What makes for a grievable life?” ²⁶

As we have seen in our discussion of Kant, the designation as human is required for the ascription of “dignity” in DHT. According to Butler, the lives that a person, a group, a community, a state, deem grievable are the lives that count as human. Those are the lives “we” feel have dignity by acknowledging that they have the dignity of grief and thus that of humanity. In granting them the status of grievable lives, a community acknowledges their humanity.

Butler is very aware of the state’s power to control, manipulate, and harness grief’s power. In controlling whose bodies can or should be mourned and how we should mourn, the state aims to control grief’s power to tie human bodies together into an affective union.

As Lloyd reminds us, Butler describes in Antigone’s Claim how heterosexism operates in limiting expressions of grief – and thus controlling the power of grief – in non-normative sexual communities. Moreover, declaring certain bodies to be ungrievable implies considering them to be non-human. By stating that your body cannot be grieved I claim that I lose nothing if you are obliterated. You are not part of the ties that constitute me. In this stance, I blind myself, we can say, to the ties that make me. ²⁷

In contrast, insisting on grievability means insisting on humanity. Thus, Butler comments on the Black Lives Matter movement as follows: “The practices of public mourning and political demonstration converge: when lives are considered ungrievable, to grieve them openly is protest.” ²⁸

Thus, grief as a practice and affect has the potential to exceed state and ideological control, as long as there is one who experiences loss, namely loss of self through the loss of another body. For example, despite the images propagated on TV and in other media that construct black bodies as not worthy of grief, as disposable and open for destruction, families, relatives, communities grieve. What is required for grief is the presence of a community of interdependence who in loss is made aware of their mutual porosity and their interbeing.

In sum: grievability is a site of contestation over humanity and dignity, controlled by state power, yet claimed in various practices by passive citizens or by the ungoverned. In these contestations over whose body can be grieved we should expect therefore to see elements of both DST and DHT. Thus, we will find in Obergefell instances where through the register of grief, dignity is claimed as a citizenship status. The gay and lesbian bodies of the plaintiffs are presented as participating in respectable citizenship. But, instead of deflating DHT into DST, following Butler allows us to see that grief exceeds these claims to DST and points to DHT.

Indeed, it is not surprising that both Windsor and Obergefell proper involve cases that revolve around loss. Yes, Windsor adjudicates a dispute over property, as Wesling notes. Edith Windsor and Thea Spyder had been married in Ontario, Canada. At time of Thea’s death the state of New York recognized out of state same-sex marriages. The property injury Edith suffered resulted from the way that the federal government levies estate taxes. But the case also involves a claim that a widow’s loss should be acknowledged as a grievable loss. The majority opinion already here talks about the denigrating effects of the government’s actions. They ‘‘demean the couple, whose moral and sexual choices the Constitution protects.’’ ²⁹

Indeed, the case that gave Obergefell its name is explicitly about a death certificate. James Obergefell’s injury that the court addressed was that he was not named as spouse on the death certificate of his husband John Arthur. In the words of the court: “By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time.’” ³⁰ By separating them on the death certificate, Ohio’s statute diminished the grievability of Arthur’s body. The loss James Obergefell incurred was recorded by the state of Ohio as incidental to him and not as constitutive of him. In claiming that James’ grief matters because John’s life mattered, the suit and the decision make a statement about the humanity and thus the dignity of both of their bodies. Acknowledging the grievability of John’s body implies a demand that the state publicly acknowledge his humanity. James’ grief does not function to ground John’s dignity in state action, but rather his grief affectively appeals to the state to accept this “just claim to dignity.”

Yet, more seems to be implied than the demand that the state acknowledge the grievability of lesbian and gay bodies. Let us consider the types of bodies that the selection of plaintiffs presents: The grievable body of the dead spouse with access to economic and social capital allowing for a hospital flight to Maryland; the bodies of mothers and fathers with their children; and the body of the soldier. Not denying the plaintiff’s real injuries and pain, the symbolic nature of these bodies is hard to overlook.

From Benedict Anderson to Judith Butler we have learned about the importance of mourning, motherhood, and martial sacrifice for the creation of a sense of communality in the nation. The bodies of the plaintiffs symbolize effectively – and perhaps to the degree of caricature necessary to gain success in the US legal system – the body types that are deemed to be state-supportive and respectable. ³¹

The presentation of the body of the grievable spouse aims to establish a claim to the dignity status derived from common humanity; in contrast, the presentation of the respectable bodies of the citizen of economic means, the mother, and the solider establish claims to the dignity status derived from respectable citizenship. Claims to grievability are thus entered into the economy of citizenship by creating a scene in which the grievable body is placed side-by-side with respectable state-supportive bodies.

V. Butler, Interbeing, and Desire to Persist

What about bodies that are not deemed respectable, those without economic means, the bodies of single mothers, food stamp recipients, impoverished bodies, or African American male and female bodies targeted by state-supportive police violence and the industrialized prison system? What grounds their claim to humanity and grievability?

In Butler’s framework the answer is what Lloyd considers to be an ontological claim. We are the kind of bodies that are interconnected, and grief is the acknowledgment of that interconnectedness. Our pedagogies of citizenship may train us to deny that we are constituted by connection with those deemed to be “passive” citizens or ungoverned “savages.” Consequently we will deny that these bodies are grievable in the same way that “our” bodies are, or that these bodies are grievable at all. Yet, interconnected we are and grievable, nay to be grieved, they are.

These bodies are to be grieved because in their loss entire webs of coexistence are cut out; ties that once bound together and established selves are ruptured. The pain engendered by this loss and rupture, however, points to “a prior desire for social existence.” ³² Since our bodies desire to persist, and since such persistence requires sociality and interdependence, any harm to the latter will result in harm to the former.

This desire to persist may be modulated, enabled, or frustrated by varying forms of our social existence. But Butler posits this desire as something exceeding or preceding social power. Thus Lloyd claims, “the desire for existence appears to operate as an a priori universal that transcends and/or precedes culture and society.” Indeed, as Lloyd points out, Butler’s work demonstrates how social norms deny certain bodies the enactment of this human “desire to persist in one’s own being.” ³³

Thus, here we have the ontological anchor of dignity that Thomas’s argument requires. Dignity is linked to a human mode of existence. Were we to exist in a different mode of being – by lacking either the desire for persisting or the need for interconnectedness or both – we would not grieve the loss of those to whose being ours is tied. Our human desire to persist is a shared transcendent datum. Persisting in our own being requires, however, existing in mode of being connected with others, or inter-being. Loss of another is then loss of self, a realization that grief marks. All of the bodies with whom I am interconnected and whose ties to me constitute myself are therefore grievable.

Lloyd notes that this ontological grounding of grievablity in an alleged transcendent desire to persist fails short of Butler’s own project of critiquing ontological claims. However, a stringent critique of the ontological register is necessary. Claims to transcendent ontological qualities of being demarcate the sphere of what is thinkable or unquestionable. Ontology thereby solidifies power – including the power of who or what can be counted as real or really human. Thus, Lloyd calls for “an exploration of the desire for existence as a discursive construction or cultural practice operating according to and constituted by certain historically specific norms and power relations.” ³⁴

VI. Dignity and the War of Terror Within

Our analysis so far can give a preliminary answer to Lloyd’s question about the socio-cultural and political practices that produce the ontological claim of desire for existence. Reflecting on the Black Lives Matter movement, Butler states in an interview with the philosopher George Yancy that “we not only must insist on the dignity of black lives, but name the racism” that precludes us from seeing black lives as human. ³⁵

What then are the socio-cultural and political practices that give rise to Butler’s ontological claim about human desire for existence? These are the varied practices that operate around the state-supported and state-supportive denial of humanity or dignity of black bodies. On the one hand, the historical specific norms and power relations that enable an ontological claim to dignity are the institutionalized racist practices that normalize this denial. The litany is familiar: police killings, grand jury acquittals for such killers, media representations, the actions of the prison-industrial complex, systemic economic destitution, etc. Within these power relations, the insistence on an ontologically-grounded dignity appears, on the other hand, in chants, protests, admonitions from elders, such as an aunt or grandmother, to not forget one’s dignity, church services, or in affective acts that reinstitute inter-being. In short: within practices affirming the grievability of lives that hegemonic power presents as disposable.

The racist war of terror, resistances to it, and evasions of it thus constitutes the power relations that produce this particular claim to dignity as ontologically grounded in being human. Importantly, the practices grounding this claim are not controlled completely by the state. The lives of those the state deems to be ungoverned – outside of the state’s claim to participation in the body politic – are the sources of practices insisting on this particular type of dignity.

In this conception, dignity is not pre-political but extra-political. It does not derive from practices that are prior to political ones; rather, it derives from men and women whose bodies have been marked as not belonging to a body politic. DHT exceeds in this particular way DST.

Following this queer reading of Obergefell and attending to Justice Thomas’s dissent we see, therefore, not an unproblematic expansion of citizenship rights. Rather we can analyze the complex workings of power that enable claims and counterclaims to dignity. Whether or how Obergefell functions to characterize a person’s humanity and her position vis-à-vis the state will depend on how her body can or is forced to move through these networks of power. For some enfranchised gays and lesbians the right to marry may be the corner stone in the achievement of active citizenship; for others it may be a step away from the economic constraints that enforce passive citizenship; for yet others it may not matter. Some may accept the dignity of marriage for strategic reasons, despite their suspicions about the institution and the state that grants this dignity. The lives of others may be so fully vested with state power that accepting this dignity seems unproblematic.

However, given the myriad political practices that aim to mark some bodies as “active” citizens, others as “passive” citizens, or as belonging to the ungoverned, the complications of dignity in Obergefell should serve as an important reminder: The continued war on black bodies and the bodies of the ungoverned in their multiplicity necessitates a queer insistence on Justice Thomas’s dissenting view on dignity.