The time for dignity rights in Pennsylvania has come | Fletcher McClellan

Twenty-one states have constitutional or legal provisions that prohibit discrimination on the basis of LGBTQ+ status. Pennsylvania is not one of them

May 2, 2023 6:30 am
Flag of Pennsylvania and LGBT. Pennsylvania and LGBT Mixed Flag waving in wind. 3d rendering.

(Adobe Stock/Philadelphia Gay News).

Article I of the 1948 United Nations Universal Declaration of Human Rights states, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

“Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” the UN Declaration adds.

Over 150 constitutions around the world, including the Charter of Fundamental Rights of the European Union – but not the U.S. Constitution – recognize human dignity as a fundamental right or value. 

The need to codify dignity rights in America has never been stronger.

Each day we learn of Congress and American states attempting to disrespect, humiliate, and/or discriminate against persons because of their race, sex, religion, nationality, gender identity, or sexual orientation.

Florida has drawn the most attention for its “anti-woke” laws banning the mention of racism, gender identity, and sexual orientation in public universities as well as in elementary and secondary schools

In the name of “parents rights,” many states and local school boards have joined Florida in empowering book banners and library defunders who object to materials that promote critical thinking.

More than a few states have targeted transgender folks, banning gender-affirming health care for adults as well as young people.

The state legislature of Montana, the constitution of which declares “[T]he dignity of the human being is inviolable,” silenced indefinitely the only transgender member of the state legislature for objecting to anti-trans bills.

Regardless of where one stands on abortion, it shocks the conscience to read stories of victims of rape or incest being forced to give birth in states where no exceptions to an abortion ban are allowed.

What makes the recent wave of hate legislation even more reprehensible is that it appears to be the product of an organized campaign to mobilize the religious right.

After 22 years, LGBTQ+ anti-discrimination legislation clears hurdle in Pa. House

Though the U.S. Constitution does not articulate a general right to dignity, it can be argued that its guarantees of due process protection of life, liberty, and property and equal protection of the law are based on the inherent value of each person.

The U.S. Supreme Court justice who spoke most often about dignity was former Justice Anthony Kennedy, famous for his controlling opinions striking down anti-gay laws by Congress (U.S. v Windsor 2013) and the states (Lawrence v Texas 2003).

Kennedy’s majority opinion in Obergefell v Hodges (2015) emphasized human dignity in making same-sex marriage the law of the land. “There is dignity in the bond between two men or two women who seek to marry and, in their autonomy, to make such profound choices,” Kennedy wrote.

Laws that deny certain classes of people access to fundamental rights such as marriage or education imply that such groups are or should be subordinate to others. The consequences may well involve pain, embarrassment, disgrace, or a lifetime of unfulfilled potential.

Of course, there were strong objections from Kennedy’s colleagues on the Supreme Court to his suggestion that same-sex couples have a right to “equal dignity in the eyes of law.” 

In his Obergefell dissent, Justice Clarence Thomas noted that the Constitution contains no “dignity” clause, and “even if it did, the government would be incapable of bestowing [or taking away] dignity.” 

There are those who believe that establishing a right to dignity will lead to judges declaring innumerable fundamental rights. Critics say dignity is an especially broad right that conservatives could use to expand their notions of freedom, e.g. religious freedom, gun rights.

A more constrained approach would be to conceive of dignity rights in a negative sense, i.e. embracing an “anti-humiliation principle” or protecting even the most despised among us from harm committed by the state, whether it be torture, denial of habeas corpus, or forced sterilization

Regardless, dignity talk is all around us. Euthanasia advocates speak of “death with dignity.” Labor rights are based on the “dignity of work” and “dignity at work.” Only by treating the mentally ill with dignity and respect, caregivers say, can we “end their marginalization and disenfranchisement from society.”

While the so-called red states are serving as “laboratories of autocracy,” other states, including California, Michigan, and Minnesota, are strengthening protections and eradicating harms to vulnerable groups. 

This brings us to Pennsylvania. Twenty-one states have constitutional or legal provisions that prohibit discrimination on the basis of LGBTQ+ status. Pennsylvania is not one of them.

On the other hand, Gov. Josh Shapiro has an expansive vision of “real freedom” for Pennsylvanians. The state House Judiciary Committee recently approved the Pennsylvania Fairness Act

Dignity in the Commonwealth also extends to education. 

Earlier this year, Commonwealth Court Judge Renée Cohn Jubelirer ruled that education is a fundamental right, requiring that “every student receives a meaningful opportunity to succeed academically, socially, and civically, which requires that all students have access to a comprehensive, effective, and contemporary system of public education” 

In the face of cruelty imposed elsewhere, the time for dignity rights in Pennsylvania has come.

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Fletcher McClellan
Fletcher McClellan

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at [email protected], and follow him on Twitter at @mcclelef.