(NOTE: This is a post that originally was posted on my Cal blog, Excuse Me For My Voice. Because that blog is host to both Jason Snell and myself, I have moved this post to here, to remove any implication that I spoke for the both of us. The first 4 comments are also moved and so reflect having been posted on the other site (particularly #4).)
I want to talk about a matter of significant importance, one that it amazes me just how few people, including the justices of the California Supreme Court, seem to recognize.
This matter has nothing to do with religion, as I suspect most of my readers would guess that my perspective on the subject would guess, but simple logic and the principles on which this country is founded. In this post you will find no references to God.
The principle not only affects the immediate issue I’m going to discuss, gay marriage, but a myriad of other political topics, both conservative and liberal leaning, on which the country has been heading the wrong direction.
The principle is called legal privileges.
The word “rights†is thrown around these days with amazing abandon. Everybody has a “right†to an amazing number of things, if you believe the various pundits out there. We’ve got the right to affordable gas, health care, owning a car, to get various medical procedures, to do business with others whether or not the other party wants to, to own a home, to a free education, the list goes on and on.
The problem is that none of things are rights. Rights are things that all humans deserve. They are not granted by a government. They transcend every location and generation. They are inherent to the fact that we are alive and human. In fact, the declaration of independence makes this very clear:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The point is that rights are not granted by the government, they are upheld by the government.
As such, the list of rights we all have are few but broad in implication. We have the right to live out the course of our natural lives. We have the right to work to obtain the means to continue living (air, water, food and shelter). We have the right to freely associate with others. We have the right to believe what we want. We have the right not to be discriminated against because of who we are, as is separate from our actions. Really that’s about the limit of our fundamental rights. These rights transcend all governments.
Certain governments, including ours, extend additional rights to their people, rights that although not fundamental, make for a better society. Rights that likely make it easier for people to keep their fundamental rights. The right to freely publish and the right to bear arms fall within this set of extended rights. We in the United States are granted a number of these rights.
In any case, whether rights are fundamental, and thus apply to every human being, or extended, and then only apply to those within the government that has established them, rights are things that apply to EVERYONE.
All of this is a very long introduction to the concept of legal privileges. I wish I didn’t have to spell these things out so explicitly because it seems self-evident to me (and apparently to the founders of our country), but it apparently is no longer evident to the general public and much of the judicial system.
Legal privileges are things that either only apply to subsets of the population or if applied universally, can be regulated or limited in their application. All of our laws, that which is not in the Constitution, are legal privileges. Things like all of our social services, tax breaks, public services like fire protection, libraries and emergency relief, inheritance privileges, education, all of these things are legal privileges that the government has granted a wide swath of the public. Similarly all of the regulations that exist, how we must build a house (or stadium), speed limits and drivers licenses, banking rules, incorporation rules and the rest, they can not infringe on our rights and be just or legal regulations. These privileges and their corresponding restrictions are granted by the government for the good of the people. It is the government’s job (and in a democracy the people are responsible for making the government do its job) to decide what legal privileges and what restrictions are wise and for what reason.
All of this finally brings me to the topic of gay marriage.
Marriage, in the legal sense, is a privilege, not a right. If it were a right, the government would be forced to find the ugliest, poorest, meanest jerk of a man someone to marry him if he desired marriage. If it were a right, it could be denied to no one, not criminals, not polygamists, not gay people.
But marriage is a legal privilege. It is a set of laws that the government created with the purpose of giving privileges and protections to a man and a woman who come together to live together as one legal entity. These privileges include tax breaks, medical decision making power, inheritance incentives and other legal privileges.
As such, it is also perfectly acceptable for the government to regulate marriage and limit its applicability. There is no basis for a court stating that certain people, who don’t fit the definition of the privilege by their actions or fall outside the regulations created, have a “right†to that privilege. It just doesn’t make any sense to say that. Nobody has a right to a privilege.
Is that clear?
The final thing I’d like to reference is the commonly used argument attempting to equate the issue of gay marriage and inter-racial marriage. If you go way back to the top of this post you’ll see that one of the fundamental rights is not to be “discriminated against because of who we are, as is separate from our actionsâ€. This is the factor that differentiates between inter-racial marriage and gay marriage. In inter-racial marriage the man and woman involved are not different in nature from a same-race marriage. Their actions are also the same and can fit within the same regulation on marriage.
Gay marriage is entirely different. Men and woman are not the same. It is acceptable to make laws regulating men from going into the women’s bathroom. As such, a marital relationship between a man and a woman is by the nature of the fact that men and women are different, a different type of a relationship than two men or two women. The actions in which that couple can engage, are again different. The most obvious example is that two men and two women can not duplicate the sexual activity of a man and a woman. They can simulate, but not duplicate.
As such, that is the inter-racial marriage comparison is a false comparison.
