“Man is obviously made for thinking. Therein lies all his dignity and his merit; and his whole duty is to think as he ought.”
Justice Kennedy’s majority opinion in United States v. Windsor did much more than declare unconstitutional section 3 of the Defense of Marriage Act. It did more than affirm the right of states to allow gay marriage; it went beyond insisting that the Federal Government must recognize those lawful unions. Kennedy’s opinion, as Justice Scalia sees clearly and Justice Roberts strives futilely to deny, argues forcefully that depriving gay people of the right to marry is an affront to their basic human dignity. In making this argument, Kennedy opens two doors. First, he signals that the same 5-4 majority might very well uphold a challenge to those presently existing state laws that deny gay people the right to marry. He also takes one more step in the evolution of dignity as a meaningful legal ideal.
Justice Kennedy invokes the word “dignity” 11 times in his short majority opinion. When states recognize the validity of same-sex marriages, as New York does, they confer dignity on that personal and enduring bond.
The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas. By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.
The marital status, Kennedy continues, “is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” To recognize same-sex marriages as New York and other states have done is to dignify same-sex unions.
Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.
The converse of such dignified recognition is, of course, the denial of dignity when same-sex marriages are not affirmed. The Defense of Marriage Act, or DOMA, “seeks to injure the very class New York seeks to protect.” The injury is understood in a few ways. First, it denies gay people the equal protection of the laws:
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
But Kennedy goes far beyond the claim that DOMA violates equal protection. He adds that the Defense of Marriage Act is a violation of dignity.
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
Kennedy’s statement should be obvious, and to bring the point home he elaborates on the indignity of DOMA. The statute
humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Kennedy’s reasoning here is hard to limit to simply those states that have passed laws legalizing gay marriage. The point is that gay couples across the country are living together and raising children in matrimony. If marriage confers dignity on the act of living together and raising a family, than the denial of marriage is a denial of dignity. It does seem likely that Kennedy’s opinion signals that the Court is ready to invalidate state laws prohibiting gay marriage. What is undeniable is that Kennedy’s opinion is another step in the introduction of dignity as a meaningful idea in U.S. Constitutional law.
Justice Kennedy’s decision in United States v. Windsor is well worth reading. You can skip section II, which addresses technical legal questions of standing. The rest, however, is compelling reading. There are few legal decisions to really celebrate these days. This is one that merits attention. It is your weekend read.
Hannah Arendt considered calling her magnum opus Amor Mundi: Love of the World. Instead, she settled upon The Human Condition. What is most difficult, Arendt writes, is to love the world as it is, with all the evil and suffering in it. And yet she came to do just that. Loving the world means neither uncritical acceptance nor contemptuous rejection. Above all it means the unwavering facing up to and comprehension of that which is.
Every Sunday, The Hannah Arendt Center Amor Mundi Weekly Newsletter will offer our favorite essays and blog posts from around the web. These essays will help you comprehend the world. And learn to love it.
Hannah Arendt Center Senior Fellow Wyatt Mason explores the wild and wonderful world of super-artist Kehinde Wiley. "Wiley, as some of you may know, is an American artist, an unusually successful one. In the decade of his career to date, he's become one of the most sought-after painters in America. Holland Cotter, of The New York Times, called Wiley "a history painter, one of the best we have.... He creates history as much as he tells it." Even if you don't know him by name, you've likely glimpsed his grand portraits of hip-hop artists-LL, Ice-T, Biggie. Maybe you've even seen his massive portrait of the King of Pop: the one of MJ in full armor, astride a prancing warhorse. If all this suggests that Wiley, a 36-year-old gay African-American man, is court painter to the black celebretariat, that misconception has been useful to promoting his brand, up to a point."
Mason is skeptical, but if you don't know the Wiley brand, the route through Wiley's world of surfaces is about as fine a reflection as you'll find of the challenges facing the artist in a consumer society.
Zainab Al-Khawaja is sitting in a Bahrani prison reading Martin Luther King Jr. Al-Khawaja is a political prisoner. She is in a cell with 14 others, some murderers. To maintain her dignity and to announce her difference from common criminals, she has refused to wear an orange prison jumpsuit. As a punishment, she is denied family visits, including by her baby. She is now on hunger strike. "Prison administrators ask me why I am on hunger strike. I reply, "Because I want to see my baby." They respond, nonchalantly, "Obey and you will see her." But if I obey, my little Jude will not in fact be seeing her mother, but rather a broken version of her. I wrote to the prison administration that I refuse to wear the convicts' uniform because "no moral man can patiently adjust to injustice." (Thoreau)." Al-Khawaja's thoughts on dignity and non-violence are more than worthy testaments to her mentor.
Sara Horowitz takes on the "micro-gig," a new kind of freelancing that allows people to employ others for small tasks, like delivering or assembling IKEA furniture. Horowitz, however, worries about what "micro-gigging" might mean for workers: "It's as if we're eliminating the "extraneous" parts of a worker's day--like lunch or bathroom breaks--and paying only for the minutes someone is actually in front of the computer or engaged in a task." Welcome to our piece-work future.
Chloe Pantazi considers the work of the photographer Chim, also known as David Seymour, on the occasion of a showing of his work at the International Center of Photography. Pantazi focuses in particular on Chim's photos of children, saying that as he "offers up the every day lives of such adults working within the industry of war (as soldiers, munitions workers) we trust that Chim's postwar photographs of children yield something close to their every day, as vulnerable innocents who-like the newborn seen suckling at its mother's breast in a photograph taken of the crowd at a land reform meeting at the brink of the Civil War, in Spain, 1936-were virtually reared on the conflicts of their time."
Lucy McKeon explores Russian poet Kiril Medvedev, who has renounced the copyright to all of his works. McKeon recounts Medvedev's rebellion against the bourgeois idea of artist as private citizen-a type idealized by Joseph Brodsky in his 1987 Nobel Prize address. Medvedev is searching for a post-individualized and post-socialist culture-what he calls new humanism. "Logically, Medvedev's answer to individualized disconnectedness calls for a synthesis of twentieth-century leftist political and intellectual thought, a situation where several senses of the word 'humanism' begin to collide." Where something from poetry meets something from philosophy; where postmodernism, logocentrism, psychology, culture and counterculture, "and probably something else, too, that we haven't though of yet," writes Medevedev, join to form "a new shared understanding of humanity." Only in this utopian future society could the artist as private citizen responsibly exist and create."
Music in the Holocaust: Jewish Identity and Cosmopolitanism
Part II: Music of Warsaw, Ludz and other Eastern Ghettoes
Learn more here.
Roger Berkowitz lauds the idea of early college. Jeffrey Jurgens considers Jeremy Walton's recent article "Confessional Pluralism and the Civil Society Effect." Cristiana Grigore responds to the recent New York Times article, "The Kings of Roma" by describing her own Roma upbringing in Romania. Kathleen B. Jones takes on New Materialism from an Arendtian point of view.
Until now the totalitarian belief that everything is possible seems to have proved only that everything can be destroyed. Yet, in their effort to prove that everything is possible, totalitarian regimes have discovered without knowing it that there are crimes which men can neither punish nor forgive. When the impossible was made possible it became the unpunishable, unforgivable absolute evil which could no longer be understood and explained by the evil motives of self-interest, greed, covetousness, resentment, lust for power, and cowardice; and which therefore anger could not revenge, love could not endure, friendship could not forgive. Just as the victims in the death factories or the holes of oblivion are no longer "human" in the eyes of their executioners, so this newest species of criminals is beyond the pale even of solidarity in human sinfulness.
-Hannah Arendt, The Origins of Totalitarianism
Although Hannah Arendt never dedicated an entire chapter or essay to the emotion, she was nonetheless well aware of the insidious pull of resentment. In The Origins of Totalitarianism resentment is mentioned 16 times.
Early in the Origins, Arendt writes, "The social resentment of the lower middle classes against the Jews turned into a highly explosive political element, because these bitterly hated Jews were thought to be well on their way to political power." Here resentment refers to the mobilization of mass antisemitism and the driving force behind the scapegoating of Jews.
By the end of Origins of Totalitarianism, in the lengthy passage quoted above, Arendt refers to resentment as one of many "evil motives" that had in the past made crimes understandable. With the advent of radical evil typical of the Third Reich, however, crimes against human plurality that could neither be punished nor forgiven could also not be explained away by unsavory human emotions and intentions. Here we can see a shift in meaning: in the beginning stages of Nazi occupation, resentment is an emotion that helps to make sense of antisemitic attitudes. With the advent of the death factories we find that evil human motives of self-interest, lust for power and resentment are no longer able to make sense of the world.
I find the ambiguity of the meaning of resentment in Arendt's work fascinating. Origins begins with a fairly common understanding of the emotion as a kind of envious grudge that seeks revenge. But it would be a mistake to understand resentment as the psychological essence of totalitarian rule. For although Arendt acknowledges the role resentment played in the mobilization of social attitudes of antisemitism, she also reveals the limits of human emotions within the Nazi program of destruction. Resentment is not the cause of human destruction. Rather she says,
Propaganda and organization no longer suffice to assert that the impossible is possible, that the incredible is true, that an insane consistency rules the world; the chief psychological support of totalitarian fiction—the active resentment of the status quo, which the masses refused to accept as the only possible world—is no longer there.
But where does resentment go, and what replaces it? Ironically, Arendt saw resentment as the last remnant of humanly recognizable relations—relations that were quashed as a requirement of totalitarian destruction.
To illustrate this point, near the end of the book, Arendt makes a distinction in the torture practices first performed by the Nazi Party's "Brown Shirts," the Sturmabteilung (SA) and later by Hitler's paramilitary, the Schutzstaffel (SS).
Whereas torture for the SA officer was provoked by a heated resentment against all those the SA guard perceived to be better than himself, torture of the magnitude required for the annihilation of a people—the kind that was effectively able to exterminate people long before they became biologically dead—was not the result of any human emotion. It was precisely the total lack of human emotion that enabled this atrocity. Arendt contrasts the irrational, sadistic type of torture driven by resentment and carried out by the SA to the rational calculations of the SS:
Behind the blind bestiality of the SA, there often lay a deep hatred and resentment against all those who were socially, intellectually, or physically better off than themselves, and who now, as if in fulfillment of their wildest dreams, were in their power. This resentment, which never died out entirely in the camps, strikes us as a last remnant of humanly understandable feeling (GH emphasis). The real horror began, however, when the SS took over the administration of the camps. The old spontaneous bestiality gave way to an absolutely cold and systematic destruction of human bodies, calculated to destroy human dignity; death was avoided or postponed indefinitely. The camps were no longer amusement parks for beasts in human form, that is, for men who really belonged in mental institutions and prisons; the reverse became true: they were turned into "drill grounds," on which perfectly normal men were trained to be full-fledged members of the SS.
I glean two points from this passage. First, Arendt believed that the human destruction perpetrated by the Third Reich was an exemplification of what she called the "banality of evil." This is to say that it was not pathologically sadistic and neurotically resentful and self-interested men, but rather "perfectly normal men" who, by following the rules, fulfilled the brutal logic of the Third Reich. Second, the annihilation of the Jews required cold calculation that in effect destroyed the very condition of possibility for resentment: human plurality. And this is where the irony of Arendt's thinking shines through: Resentment disappeared in the camps because understandable human sinfulness disappeared. Through this irony Arendt exposes her readers to a provocative ambiguity: Resentment appears in Origins as both the provocation of criminality and a vague remnant of human plurality.