This piece is not about the legal interpretation or effects of the SCOTUS decision concerning gay marriage in the US, states rights, the regular misuse of the 14th amendment or even the impact on American society. There is a lot to say on all those areas, but I am intentionally boiling this argument down to what I feel is most important about the entire debate.
I believe this to be the most important facet of the debate. Why? Rights are one thing every single human has in common, and are worth defending at all costs.
First – rights do not come from the law.
Rights do not come from government, and they certainly do not come from a court decision. Two consenting adults of any sex have the “right” to spend their life together regardless of what any law or court says. And as important as anything, they have this right regardless of any individual or group’s opinion on their decision.
They, like every person on planet earth, have a right to pursue their own happiness in any way they see fit as long it does not directly harm any other person or property in the process, nor does it infringe on any other person’s rights.
In the case of two people getting married, it infringes on no one’s rights and certainly does not harm any other person or their property.
As a thought experiment, imagine one thousand people in a small town pass a law to say that 1 person has to make 100 apple pies every day and give them to people in the town, or they go to jail.
Because the law was created by the majority, and can legally be enforced by government and police – does it mean that taking this person’s time and property away from them make the law right? Doesn’t the law (created through the legal process) infringe on this person’s rights? Of course the answer is, yes.
Now, lets say the law is repealed, and the person stops making pies. Did the town give this person rights? Of course not. They always had the right to their own time and property. Their rights were just being infringed upon by the law itself. The law neither made things wrong or right. The law was simply accompanied by the power of compulsion through force of government. Government and laws do not make rights.
Bottom line – This is an important part of the definition of rights. Every person has a right to do anything they wish in life as long as it does not infringe on another person’s rights, and as long as your activity does not directly harm another person or their property.
Second – it is government who inhibited individual rights, and this wrong should be righted.
This truth complicates this debate because government stepped into a role it should have never assumed – licensing marriage.
It was never government’s place to infringe individual rights by creating criteria under which someone could call themselves married. A state licensure process for marriage should not even exist. It was government who infringed on individual rights by taking away the ability for someone to declare themselves married without state approval. It is the state that infringed on the right in the first place.
Historically, marriage did not require state approval. Regular traditions included a variety of options: parental approval, religious approval, a marriage contract/agreement or at least willing individuals, declaring themselves committed partners and willingly choosing to commit to one another.
As another thought experiment, imagine you were living in a country in which you weren’t a citizen, nor was there any church or religion to which you adhered. While in this country you meet a wonderful person and decide to spend your lives together. You can’t get a marriage license, and you can’t get have a religious ceremony, so you invite friends and family to your home for a public declaration of vows, an oath to commit for a lifetime and a clear statement that you are married.
Why do you need anything else?
Couple this public statement and ceremony with a marriage contract of two consenting adults which defines the terms under which they will join their respective property, in addition to what would happen with their respective property should they die. What else is needed?
Throw in a local elder or religious leader for the ceremony, and you have the societal norm for most of human history.
The state got involved in marriage for two reasons, to control certain types of behavior and collect money. Prior to those desires, the state was not involved in marriage in any way.
For all my friends who focus on religious acceptance of marriage as an institution. I assume you believe the Bible and God’s Word to be a higher authority than any man or government. Then why would you ever grant government authority over a holy sacrament?
That’s effectively giving government a higher place of authority than God on this issue, and actually weakening the pastor’s and church’s role in society. Please don’t confuse your lack of acceptance for someone’s life with the interjection of government as the arbiter for this dispute. That’s a dangerous path for anyone who believes in religious freedom. Government should never have that kind of power.
Bottom line – it was government itself that infringed on individual rights in the first place. Hopefully this SCOTUS decision prompts all states to get out of the marriage license business completely, which is the way it should have always been.
Third – No one has a right to anything someone else must provide for them.
This third important statement on rights has already played out in states where same-sex marriage was legal in the form of business owners or clergy refusing to provide a wedding cake, pictures or perform a ceremony for a same-sex couple.
No business owner or clergy should be forced to do these things against their will. This is actually an infringement on their rights.
Any couple has the right to make or prepare their own food or cake for their wedding. What no one has a “right” to do is force another person to do it for you. Forcing someone to do work against their will is morally reprehensible by any definition.
We all have a right to associate with anyone we wish, just as a private business or institution has the same rights. As noted above, a law does not make this practice right or wrong, but it can most definitely infringe on rights that already exist.
Regardless of any law or court opinion now or in the future, if you are pushing for gay marriage under the banner of equal rights, you should also be defending the rights of business owners and clergy under the same banner.
Rights don’t have a team or side. They exist independent of any specific society, government, law, belief system or moment in time. Rights are timeless, and I believe the singular purpose of government and laws are to protect individual rights and property. Without protection from the tyranny of a majority – we are a nation of thugs, using the power of government to push our opinions and belief systems on others.
We can and must be so much better.
For My Conservative Friends
This final point isn’t about rights, but why I believe support for government staying out of endorsing any version of marriage is strongly tied to the roots of “conservatism” and that embracing this principally consistent position would help the conservative movement.
Conservatism is rooted in the idea that we should not let government grow in size, scope and influence at the cost of the individual – that we should protect individual rights and defend personal responsibility, and the only way to do this is to keep government power in check.
None of that supports a belief system that prevents two people from marrying, regardless of their gender. In fact, by defining marriage as something that government licenses and controls, people are empowering a government that should not be involved in the first place.
Marriage is a choice between two people, and in the case of religious involvement, an oath before God with the blessing of a respective church. If the two adults are OK with making that commitment, then that’s all they need.
That said, a marriage contract with no church or government involvement at all would suffice. That’s the way it has been done for thousands of years in most of the world.
A church blessing meets personal preferences and commitments, but is not currently required to marry (nor should it be), so it’s not relevant. That choice is between those marrying and their church. As noted above, I strongly support any church’s right to refuse to marry anyone. Pastors and churches refuse to marry heterosexual couples all the time for a variety of reasons. Those refusals should be protected as well.
No matter how I cut this up, government is not needed for people to marry, and that position is wonderfully consistent with the backbone of conservatism.
Bottom line – the principally consistent “conservative” perspective on this is government shouldn’t be in the business of telling people what to do, and it certainly shouldn’t be in the business of controlling what they do by licensing it.
A person can believe homosexuality to be immoral (as many religions teach), yet still understand no individual or government entity has the right to tell others what they can or can’t do when it’s not harming another person.
The same can be said about anything in life. Many things could be considered bad by one person are not by another. It does not give anyone the right to prevent another’s personal choices.
People eat and drink too much sugar and trans fat. Should it be banned as is being done? No.
Guns and knives can be used to kill people. Does that mean they should banned as many believe? No.
These examples are often cited by conservatives when defending an individual’s rights. In the case of same-sex marriage, nothing has changed. The principle still applies.
To wrap things up, I understand that my focus on rights in this blog is strictly philosophical. I get that the ruling changes perspectives and validates long standing societal needs for acceptance for lots of people. I get all of that, and I’m not discounting or dismissing any of it.
I also understand contract law as it relates to benefits, employment and a ton of other areas need to be flushed out as well. But a path forward on all of these questions is still rooted in the question of rights. There is no challenge that is not appropriately and morally answered when individual rights are the first consideration.
Fiercely protect individual rights, and everything else falls into place.