Until recently, Rachel Dolezal served as the head of the Spokane chapter of the National Association for the Advancement of Colored People (NAACP). Recent information has revealed that Dolezal is not African-American as the public had assumed. Her parents, both Caucasian, note that she is not African-American and produced a picture of her as a child with blond hair and fair skin. Her step-brother, who is biracial, confirms the story of his adoptive parents. Rachel Dolezal is the biological daughter of her parents who then adopted four African-American children. In response to these allegations, Dolezal rehearsed her long service to the causes of the African-American community and noted “I identify as Black.”
I can’t help but think this is a serious problem for the social and political left in America. When Bruce Jenner went on television and told Diane Sawyer, “I am a woman,” the left applauded his courage. He said he had lived a lie his entire life. One might wonder if he plans to give his Olympic medals back since he competed as a man. His doctors can attest, I presume, that he was born male. There are genetic tests to confirm that he has male chromosomes. There is no debate that he is male. Yet, because he says he has a “female soul” and his “true self” is female, we—the rest of society—are expected to accept Caitlyn Jenner as his identity.
Justice Anthony Kennedy, in writing the majority opinion in the Obergefell v. Hodges case (same-sex marriage case), seems to concur. He emphasizes the important right to such choices as seen in the following:
Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right….[the petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right.
I wish I could point you to the section of the Constitution that grants that right, but I cannot. This concept, however, is not new, as Kennedy wrote about it in the 2003 Lawrence case that overturned state laws against sodomy. Kennedy argued in that case that harm was done by negatively impacting one’s dignity, regardless of the intent of the actor. Further, as Jeffrey Rosen adeptly noted in an Atlantic article, Kennedy also argued “that an individual’s interest in dignity trumps the majority’s interest in preserving traditional moral values.” Even earlier, Kennedy wrote in the Casey decision, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This infamous phrase was duly taken to task by Justice Antonin Scalia as a Pandora’s box. Also, in response to Lawrence, Scalia argued the decision did away with any foundation for “morals legislation.”
Indeed, he has a point. In light of this right, how can society outlaw activities such as bestiality, pedophilia, incest, etc.? Are these specious comparisons? I don’t think so. In such a society, why could not a man say that he has an “animal soul” and simply wishes to live and love as an animal? A possible response to this approach might be that any reasonable psychologist would suggest that this represents not an identity but a psychosis. I think that response is right, but remember that it was not too long ago when psychiatrists would have diagnosed Bruce Jenner with mental illness as well. Rather than an illness now, he has simply decided on his identity. Let’s keep going. Why cannot a young American decide he or she is old enough to love an adult and express that love physically? The law has determined there is an age of consent for such actions. In many countries, it is much lower than in our country. But who is the government, or majority of voters as the case may be, to determine such an age? This recent decision seems to suggest that decision is up to the individual. Finally, what about the issue of incest? In such a society, why cannot a person determine that they are able to have an intimate relationship with a sibling? If one has the right “to define one’s own concept of existence,” then there is no basis for such restrictions. Kennedy identifies this right as a right to dignity, and one’s dignity cannot be infringed by even a “majority interest” within society.
Let’s return to our starting place. Rachel Dolezal identifies as a black woman. Those on the social and political left, and even our own Supreme Court, have said she can identify as lesbian and she can identify as male. She can even decide to marry another woman. Why is society so offended that she has chosen to identify as African-American? It is no greater leap from her natural disposition than we have seen in other more acceptable cases. I have seen responses that express outrage that she lied, and I do not wish to negate the importance of telling the truth. I value truth, and I would be fine with her removal for lying. But I think the issue goes deeper than that. Besides, one could argue that Bruce Jenner was lying all those years when he passed himself off as a man. This is where “identity politics” collides with “identity dignity.” Identity politics provides certain advantages or at least a context from which to argue political points. African-Americans can stand for racial equality because many have experienced racism by virtue of who they are. Who they are is a product of things beyond their control. Whether they chose to embrace their identity is immaterial because their black skin is often the reason they have experience racism. Conversely, when a person claims to be black who is genetically Caucasian, it lessens the African-American argument. No longer is her complaint grounded in something beyond their control; rather, it is a choice. If I drive a car off the road and into a tree because I am texting, I am not going to find many sympathetic ears. If I drive a car off the road and into a tree because the local authorities failed to properly remove some type of impediment, I have both legal and civil recourse. The point is, we as a society have always made these kinds of distinctions. Much of our law code is based on the concept that some things cannot be chosen in a civil society. When the Supreme Court declares in such an open-ended way that choice, and the dignity that must be afforded such choice, is constitutionally protected, I wonder if we have not eroded the foundations of our society.
Personally, I don’t blame the NAACP for firing Dolezal. She lessens the arguments of the organization and in some respects makes a mockery of the reality that some Americans truly are racist. What concerns me is the duplicity that this case has revealed. If we as a society are going to accept that a person simply can choose their identity—ie. accept identity dignity—then we have to be willing to give up on identity politics and on moral legislation. If we are uncomfortable with those consequences, then we need to reevaluate the concept of identity dignity. The Supreme Court is guilty of finding a right around every corner. At some point, those rights are going to collide with values that have made this country the land of the free. I fear we are already well past that point.