A Discussion on “Rights”
by Scott Spjut, Writer
April 13, 2009
With both Iowa and Vermont, in essence, legalizing same-sex marriage in their respective states within a week, I think back to California’s Prop 8 and other recent same-sex debates and ask again the same questions: Is same-sex marriage a rights issue? Is it a moral issue? And simply put, who should be able to decide who can be married?
First of all, it’s important to remember the assumed “proper order” of things in most monotheistic cultures. God created man; man created government; government created laws. And even if you don’t believe in God, man created government and government created laws. Either way, it is an essential assumption that the creation can never be greater than the creator. Morals, laws, statutes, etc. always come from the top down in such societies, not the other way around. A government cannot have a power that is not initially held by the people it governs (or people have power that is not held by God).
For instance, I – as an individual – do not have the right, power, or authority to take (steal) your money, even if it is for a noble cause – like to give it to someone less fortunate. And because government gets their power from the people and the people do not have the authority to steal money, then the government doesn’t have authority to steal money either.
In America, there are exceptions. There are certain responsibilities and rights that we the people do not hold as individuals – we cannot declare war, make treaties, or levy tariffs. Likely, the Founding Fathers felt the general public either shouldn’t or couldn’t deal with these issues, so those responsibilities were reserved to the federal government. However, these few exceptions are explicitly defined in the Constitution; they’re not for the government to decide as they go (although there is a way to expand those federal rights within the Constitution by passing amendments). But as per the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So the people and the States are in charge of all issues not covered in the Constitution (like marriage).
So, as a Democratic Republic, we elect individuals who then represent us on the federal level – that’s the republic side of the American system. And this helps ensure democracy. In a dogmatic and usurping government, the governing body decides truth and then the people (and ultimately God) must change their minds and views in order to align with whatever nonsense has been created. This is not a good system of government.
So while it is undeniable that same-sex marriage is a moral issue for many people, to base legislation on the morality of an issue is ridiculous. For those who believe in God, morality is defined by Him (or Her–I will use the masculine throughout for simplicity). However, according to most monotheistic religions, He only defines and demands morality; He does not require everyone to follow it. He will, ultimately, punish those who don’t, but He does give them the option to choose. For those who say that morality is defined by the people, by society, by tradition, or by commonly-held beliefs, to then base laws upon that morality is to force personal convictions and arbitrary principles upon others – which could easily turn a country into a Fascist state.
So by these assumptions, whether defined by God or man, morality cannot and should not be the basis for legislation. This is not to say government should not be moral, that people should not strive to elect those who share their personal moral convictions, or that we should “divorce government from any formal recognition of God.” This is only to say that the government cannot enforce, define, or mandate morality and, therefore, cannot legislate based upon it. Government can, however, protect the natural rights and enforce the civil rights of individuals.
Without getting too deeply into the history of marriage, it began as a religious right and it wasn’t until later that government decided to get involved (so inheritance can be properly determined, so relationships can be verified and recorded, etc.) even though they had no right to do so. This is why, generally and traditionally, people accept marriages performed by any religious figure and assume there is a religious ceremony involved with any marriage. They will also assume there is some legal process involved, but that’s secondary. So if, hypothetically, someone was to get married without going through the legal process – only the religious ceremony – both parties, and outside observers, would probably all still agree on the validity of the marriage. And for an individual to say “You’re not married legally” is presumptuous at best. So for the government to do that is unconscionable.
So the question arises: Is marriage a natural right for the government to protect or a civil right for the government to enforce?
Natural rights are few, but important – life, liberty, property, pursuit of happiness, etc. And they’re preexisting, inalienable, free to all, innate – in other words, “natural” – rights. They can’t be defined or changed. They simply are. And the government should protect those rights by ensuring people aren’t killed, that their property isn’t stolen, etc.
Civil rights – at least according to what I believe the Founding Fathers intended – protect individuals, citizens, and peoples from their governments. So freedom of speech, freedom of the press, religious freedom, the right to vote, and the right to bear arms are all in place to prevent the government from becoming too powerful or oppressive. Civil rights aren’t defined by government; they’re defined by the people and enforced by the government.
So (again, I must make this distinction in order to be thorough) if we assume marriage is a natural right defined by God, then He is the one to decide who is and isn’t married. Some may say He has delegated that power to Pastors, Rabbis, Ministers, and other religious leaders, which is fine. But it’s likely He did not give it directly to the government. If we assume marriage is a natural right separate from God, then no one has the authority to decide who can or can’t be married – including government. So while government could protect those who were married, it could not decide if anyone – straight or gay – was or wasn’t married.
So, what if we decide that marriage is a civil right? Well, in order for marriage to be a civil right, it would first need to be something that protected us from our government; this is debatable. But even if we disregard that criterion, marriage would still need to be something that as a people, we had the right to decide. As I mentioned before, the way the United States Constitution is set up, authority flows from the people to the government. If the people don’t have the right to decide, then the government certainly doesn’t hold that right either; so for the government to allow or ban marriage in any of its forms is unconstitutional. But if the people do, in fact, have the right to decide who can and can’t be married, they have the opportunity to do so by voting on the issue in their respective States – that’s the Democratic side of the American system. And for a court or a legislator or an elected official to assume they have the right, authority, or power to decide who can or can’t be married is completely unfounded.
So the conclusion? It should be an all-or-nothing situation. Either the government should back away, stay out of the marriage debate, and let society, churches, and peoples do what they will; or it should, once again, overstep its bounds, ignore the Tenth Amendment, and become more oppressive, more controlling, and more irresponsible than ever before. I believe that most would prefer the former.
Nice presentation of moral vs. civil arguments. But, I think there is a very important aspect left out of this discussion, which is that marriage is a stabilizing force in society. Generally speaking, marriage results in children, and I think it goes without argument that most children benefit from a two parent family. I understand that my point does discuss heterosexual vs gay marriage, but simply suggests that society as a whole benefits from marriage and “stable” homes.
I understand there are many more issues related to this topic (divorce, abuse, etc.) but in a perfect world, two adults raising a child is better than one. When children are raised better, this benefits society, therefore government has an interest in marriage.
The government must not care about marriage that much. For the following reasons:
(1) If government had an interest in marriage for the purpose of raising children, it would require couples to take fertility tests as a condition of obtaining a marriage license. If one or both members of the couple were found to be infertile, the government should deny them a marriage license on the grounds that they can’t possibly produce children.
(2) If the government had an interest in stability, it would perform scheduled checks of homes to ensure that the children living there were “stable,” whatever that means.
Indeed it is true that life is better for a child who has two parents instead of one (or, more properly stated, raising a child is less stressful to the parents if there are two parents instead of one; less stress will lead to better parenting and a better experience for the child as well as for the parents). Whether the parents are of the same sex or different sexes doesn’t seem to matter.
Arguments against same-sex marriage that attempt to address the issue of The Family fall flat because The Family is in a state of constant flux. What is not in a state of flux, however, is the use of the image of The Family as a socio-political weapon. Each generation creates an ideal of The Family and then demands that all families comport with that ideal. Our idea of the family is grounded in the 1950s: Mom, Dad, and The Kids. If this were 1900, our ideal of the family would include Grandma and Grandpa, as well. And anyone who didn’t include the grandparents in their conception of the ideal family in 1900 would be looked at with the same kind of raised eyebrow that today greets anyone who suggests that same-sex couples can have a “stable” family. For more information, see Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap.
Too often, our viewpoints are limited only to those things that we have learned from our generation. We fail to understand that ideas change throughout time and space, and while some ideas don’t change (murder has always been wrong, e.g.), there are lots of ideas that have changed (whereas democracy today is heralded as the ideal political system, it was dismissed in the 17th century as rule by the mob; cf. John Dryden, “Absalom and Achitophel”). It is quite frequent that ideas are created for a particular purpose in a particular place, and once those ideas have outlived the purpose they were created for, they may cease to be useful; in that case, we may wish to consider new ideas.
The entire notion of the innocence and curiosity of childhood, for example, is not a universal, transcendental notion; it was invented — by people — in the 18th century. Prior to that, children were children, but they were also a convenient and free (or extremely low-cost) source of labor that could be used on farms or, increasingly, in factories in the city.
It doesn’t matter who first defined marriage as a man-woman thing. It doesn’t matter when or why. It probably seemed like a reasonable thing at the time. What does matter, and the only thing that does matter is the level of commitment two people are willing to make to each other and to the relationship they share. If they are willing to make that commitment, why shouldn’t they have legal status? Granting legal status to two men or two women or two whatever who wish to have that status does not diminish the validity of the same status for a man and woman. Does Bob and Ted’s marriage somehow make Jim and Mary’s less valid, less important, or less legal? It is not a zero-sum game, people. One side doesn’t lose if the other gains.
If your sexual preference runs along the same road you travel, are you somehow deprived of the ability to feel love? Are you less able to provide for anyone on an emotional level? Your morality, your ethics, your principles are not tied to your sexual orientation. Nor is your reason. That which gets your lustuals working at full tilt is your business, as long as it is consensual and does not involve children or small domesticated animals.
Not so long ago the same sort of things were said about mixed-marriages; i.e. white-black, white-Indian, white-Asian. As time passed, as it surely does, and more of these unions took place, a strange thing happened. Or didn’t. Armageddon was conspicuously absent from the horizon. The world didn’t end, folks.
Does anyone out there remember Women’s Suffrage, the Civil Rights Movement, the 18-year-old vote, the invention of the automobile, Copernicus, Martin Luther, or Jesus Christ? All were world-enders in their day. Somehow we managed to survive and even prosper a little because of them. However, there are now people within the Beltway, in the vaulted halls of Congress who are actually advocating an amendment to the United States Constitution banning same sex marriage! As far as I know there is no amendment to that document in support of and/or even defining marriage in any way. Why should there now be one against any sort of marriage? The bottom line here is that if a guy wants to marry a guy, or a gal wants to marry a gal, or several gals want to marry the same guy, why should the rest of us give a damn? They aren’t hurting anybody by their actions. They might tweak our prejudices a bit, but that would be our problem, wouldn’t it? They are hardly a threat to the fabric of society. Denying them is more the threat. Leave them the hell alone. Spend the time and the energy and the money feeding the hungry and housing the homeless.
Mark,
lol I appreciate your reply, but I think you missed my point; the government *should* care about marriage. That being said, as the government typically fails at most of what it attempts, I’m not necessarily sure I want them involved in marriage. Yes, that sounds contradictory, but I am talking philosophically.
The government should encourage marriage. The government should encourage good behavior. But I also do not think the government capable of inspecting my home to determine if my marriage is good. Thus the whole thing is a Catch-22.
Regarding the whole initial topic of gay marriage, I am a conservative Christian, and while as an individual I do not believe in gay-marriage from a Biblical perspective, I also understand that I do not live in a theocracy; nor do I want to. I will teach my children my beliefs (as I am morally obligated to pass on my beliefs as I believe they are the best for living life well), but I will also teach them to respect others differences, and to differentiate between my personal beliefs and day-to-day living, versus the government and laws of the land. It’s legal to get drunk as a skunk if you want, but I don’t believe I should do that, and will teach my children it is not good behavior – but I wouldn’t not advocate prohibition, as getting drunk is your choice, not mine (as long as you do it safely).
The problem with Christians that try to legislate their particular belief system is that the government changes. What if our next President is a Hindu? Or Muslim? I don’t want their beliefs to trump the beliefs I legislated! I want our leaders to lead by the Constitution, and not by their religious views. Legal marriage is, for all practical purposes, a financial and medical agreement. It allows for the easier passing-on of wealth without intrusive government involvement, and it gives one individual the medical right to pull the plug, for example. If I choose to have someone of the same sex do that for me, I’m not sure how that harms my society. If a Christian is offended by that…well, trust me, there are plenty of other issues for me to be concerned about, beginning with the plank in my own eye!
The bottom line is, the Constitution makes no mention of marriage, so the issue belongs to the States to decide individually.
Except for the Equal Protection clause, to be found in the Fourteenth Amendment: “nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.”
That’s why it’s a federal matter: the Constitution is quite clear that there shall be no discrimination in the way laws are enforced. Sure, states can make their own laws if a particular regulation if such regulation is not explicitly within Congress’ scope of power; however, states are given parameters within which their regulations must stay. One of these parameters is that laws must be enforced the same way for all people. States’ rights? Yes; but with a caveat. It is thanks to the Fourteenth Amendment that we no longer have racial segregation in public schools. If the government should care about marriage, then the government shouldn’t discriminate as to who can or cannot get married. And it should not discriminate at the federal level.
Currently, only marriage between a man and a woman is valid under federal law. (See 1 U.S.C. 7 and 28 U.S.C. 1738C.) This also violates the Equal Protection clause.
Also — and I hate to bring this up, but it’s necessary at this point — “states’ rights” was a euphemism in the 1850s for refusing to comply with legislation and case law that made slavery unconstitutional. In the 1950s, it was used to refuse to comply with federal civil rights legislation. The argument then was the same one that you, Darryl, are making, though I’m not suggesting you’re a racist or a proponent of slavery or anything of the sort (and, indeed, I don’t know whether or not you’re aware of the connotation behind the phrase “states’ rights,” which seems an innocuous term until you learn its other meaning). I’m merely pointing out that the same argument is back and is being used again to justify stripping rights from an entire class of people. I certainly acknowledge that there are people, like yourself, out there who are genuinely concerned about encroachment upon the liberties of states; however, do understand that there are also a number of people who are more concerned about the morality of gay marriage itself, and that these people couch their opposition to the moral issue in the “states’ rights” justification.
Yes, states have “rights” of their own, but those rights are not without limitation. And it is the Constitution itself that defines these limitations.