Article Title
Sexual Orientation, Rank, and Status
Abstract
Dignity retains its ancient focus on rank and status. This Article, therefore, rejects the idea that we now live in the age of equal dignity, meaning equal rank and status for everyone. Rank underscores numbering, placement, and position in a predetermined hierarchy, and status underscores the power and privileges associated with each rank. Rank permits human beings to identify their preassigned location in the hierarchy, and status justifies assertions of rank since status governs the ancestral privileges, powers, and responsibilities attached to each rank. The Article relies on two constitutional cases, one before “dignity” and the other after. In 1986, the Supreme Court of the United States held in Bowers v. Hardwick that the Federal Constitution did not recognize a right to privacy preventing a state from criminalizing consensual intimacy between persons of the same sex in the sanctity of the bedroom. Only a dissenting opinion in Bowers v. Hardwick mentioned dignity. Seventeen years later, Lawrence v. Texas overruled Bowers v. Hardwick and referred to dignity in an opinion holding that consensual same-sex intimacy was constitutionally protected in the privacy of the bedroom. Lawrence v. Texas, while appearing to announce the arrival of equal dignity, implicitly affirmed the importance of rank and status in discussions of dignity and opened the door to constitutional negotiation regarding dignity’s traditional parameters. Affirmations that dignity is about inestimable and ineffable inherent worth notwithstanding, this Article argues that since dignity remains tethered to traditional concerns about rank and status, “dignity” is a term best reserved for such ancient evocations of rank and status. To discuss life beyond rank and status, the notion of the “sacred” is more helpful because the sacred arises from within and beyond the human being, while dignity remains an evaluation and imposition from without. Indeed, there is reason to believe that landmark understandings of dignity exclude sexual minorities (and others) from their assertions of inherent dignity.