Is same-sex marriage a right?

| June 9 2012
Christopher Cook

Back in mid-May, I read an article by Charles Krauthammer about which I have been meaning to comment. The article is Same-sex marriage: Empathy or right?, and while it touches on a number of subjects, the main thrust is as the title suggests: Is same-sex marriage a right? If it is, then surely denying it is unacceptable.

The first question that must be addressed is the definition of “rights.” There are two kinds of rights: negative rights and positive rights, as the philosophers call them.

Negative rights are the ones that many of us first think of when we hear the term “rights,” like the right to free speech, to property, to provide for one’s survival, etc. These are best described as “natural” rights. They are the inalienable rights to which Jefferson referred in that seminal 55-word section of the Declaration of Independence that begins, “We hold these truths to be self-evident.” These rights are “negative” because they oblige nothing save being left alone. I have my natural rights, and as long as you do nothing to interfere with those rights, then all is well.

Positive rights are “positive” because they require that government (or some other person or entity) take a specific action in order for the “right” to be fulfilled. So, when we say to someone being arrested, “You have a right to an attorney; if you cannot afford an attorney, one will be provided to you,” we are stating that they have a positive right to a taxpayer-funded public defender. Court systems being a core function of government, most people are okay with this notion. Other examples are more controversial, however, such as the “right” to education or health care.

Of course, hackles are raised immediately when I describe education and health care rights as “controversial.” Many people see these very much to be rights. But as positive rights, they are worthy of being questioned. Of course you have a right to seek education. To learn. To study. To engage in voluntary transactions with other people in order to acquire knowledge or to be taught by them. You have the same rights when it comes to your health care. You can seek care. You can administer remedies for yourself. You can pay providers for their services.

But those things are all negative, natural rights. All that needs to happen for you to enjoy your right to seek education or health care is nothing. If no one does anything to molest your enjoyment of those rights, then all is well. But there is a big difference between that and being PROVIDED education or health care. If government is obligated to provide those things, then it must tax to pay for them. Which means, inevitably, that other people are forced to provide you with your “right” to education or health care.

You are born with natural rights, and while you can be prevented from the enjoyment of those rights by some act of force, the rights themselves cannot be taken. That is what is meant by “inalienable.” Positive rights, on the other hand, must be given to you by someone else.

Now, when we invoke the word “rights” in the case of same-sex marriage—or any marriage, for that matter— we must be careful . . .

You have the following natural rights:

–The right to form a conjugal relationship with another consenting adult.

–The right to seek codification of that relationship as a marriage in any private religious or community institution that is amenable to doing so.

–The right to procreate and beget one’s kind.

Those are all natural rights, and they stem from an interplay of the natural rights of association; self-ownership; survival; religion; thought; conscience; etc. None of these rights compel any action by anyone else. So long as the two mates agree to bond and the institution that solemnizes the relationship as a marriage agrees to perform that service, then this is a purely voluntary transaction that all parties have a right to engage in. In a proper understanding of rights, and in a context where those rights are being respected, everyone involved in the transaction can say yes or no.

Moreover, if natural rights are to be fully respected, this scenario might include unions that others might not agree truly qualify as proper marriages—same-sex unions being the most common, but not the only possible, example. If people have the natural right to form relationships, and if churches (or other civil, non-govermental institutions) enjoy their freedom of religion, association, and conscience, then they may exercise these natural rights in ways of which others may not approve. A private church may choose to solemnize a same-sex, polygamous, or other nonstandard marriage, and as long as this is all done being privately and consensually,   any act of force that prevents this would be a violation of several different natural rights. Of course, others have a natural right to express their own opinions on the matter. But other people, and government, writ large, should not interfere with the natural rights of individuals, or of institutions performing ceremonies. This, of course, also means that government must not require that any religious institution perform a ceremony with which it does not agree.

For obvious reasons, society—and specifically, government—has long chosen to play a role in the recognition of marital unions. There are a lot of good reasons for this. Beyond the arguments that marriages are good for society, there is also the brute fact that they do not always last, and when they fail, courts sometimes need to adjudicate the dissolution, the distribution of property, and—most heart-wrenchingly—the disposition of any children produced. Thus, government is called upon to be involved in marriage, if only at the end, and only as a court of last resort.

But what of its involvement at the beginning? Government recognition of marriage may be helpful to society, and it may make it easier for government to hold people accountable to commitments they have made to each other and their children, but is it a right? Or, more specifically, is it a natural right?

If government is required to recognize the union of any qualified individuals as a marriage, then that may be considered a positive right: government is required to give you a marriage license. It becomes even more clearly a positive right if government is also required to provide you with certain tax breaks or other perks that non-married people do not get.

We may decide, be it at the national, state, or local level, that having the government provide this form of recognition of marriage is a good thing. However, while the recognition of marriage by government is clearly a codification of the results of the expression of natural rights, it is hard to see how the recognition itself is a natural right.

In a strict view of natural rights, both same-sex and opposite-sex couples have a right to pair up. They even have a right to seek out amenable religious (or other private) institutions to solemnize their union as a marriage. No one is being compelled in those arrangements. The positive right of a government-provided marriage license, however, does involve compulsion of a sort. As such, we need to be very cautious when we talk about “the right” to marriage.

Natural rights should never be up for discussion, except insofar as we are ensuring that our enjoyment thereof is not being molested, and that government is fulfilling its role to secure and protect our natural rights (and otherwise to leave those rights alone).

Positive rights, on the other hand, are always fair game for discussion. Any time society says that something material is owed to someone by anyone else (including by government itself), we need to proceed very conservatively.

I am not attempting to offer solutions here, or even offer opinions on the subject of same-sex (or other nonstandard) unions themselves. These are contentious issues, and maximum satisfaction on their adjudication may only be achieved through a robust federalism. But in the meantime, it is vital that we define our terms and use them properly, and that we not throw around the word “right” too cavalierly.

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