Last week we saw the Supreme Court hand down a 5-4 decision which legalized gay marriage across the nation. Since then we’ve seen a predictable backlash against the ruling citing the democratic process, state’s rights, and even a kind of concern trolling which claims that the ruling will make it harder for some Americans to accept gay marriage. Indeed, we saw the foundation of this latter phenomenon in Chief Justice John Roberts’ dissent.
In dissent, Roberts argues that legal opening for marriage will make the change harder to accept pic.twitter.com/5EGrzSd8T3
— Zeke Miller (@ZekeJMiller) June 26, 2015
Elsewhere in his dissent, Roberts states that the rights of the individual do not extend to changing the definition of marriage for an entire state. This is an impossible case to make, legally, and he doesn’t make the case, relying almost solely on the notion of tradition which has dictated each state’s definition of marriage for over two centuries.
The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.
He is correct in this last bit. It’s not irrational to question the wisdom of gay marriage given the long tradition of it not existing in any form at all, anywhere. But that’s not a legal argument and the Constitution protects all citizens under the banner of equal freedoms in an equal fashion. Additionally, the Constitution doesn’t grant straight couples the ability to marry. Marriages may be regulated by the government via licenses but these licenses are an affirmation of the choice two people have made together, not a permission slip granting them the right to do so. Marriage is a natural right which I’ll get to momentarily.
Roberts also has a problem with how the majority came to the conclusion that gay marriage should be legal. He’s not the only one.
The trouble here with the majority’s ruling isn’t that it’s sloppy, it’s that proving a natural right exists is difficult if not impossible to do. Consider the notion that marriage between a man and a woman (or one man and several women or vice versa) has thousands of years of tradition behind it. It’s the standard upon which most of us formed our ideas about what marriage is. Now, try to prove that any man or any woman has a right to get married. You’ll find it’s very difficult if not impossible to make that argument without using tradition as precedent. The founding fathers wouldn’t have even tried. Jefferson, in his argument for natural rights against a king who was allegedly ordained by God to rule had to essentially cite God himself as the ultimate giver of freedoms. In this way, Jefferson was able to philosophically wrestle freedom from the clutches of the English crown.
Consider this quotation from the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable 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 abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in suchform, as to them shall seem most likely to effect their safety and happiness.”
All men and women have rights equally derived from God and the natural order which God has established on Earth and Jefferson’s not referring to Church doctrine here. In fact, he’s explicitly ignoring it considering that the church at the time endorsed the English crown’s rule by divine right. You either believe that citizens have natural rights or you don’t. This is a matter of belief and faith and cannot be proven either way. It’s the bedrock doctrinal belief upon which our democracy was founded. Again, you either believe it or you don’t. I adamantly believe this principle.
It is not the state, the government, the Constitution which delivers rights to the citizenry. The government may protect these rights, the Constitution may defend them, but they exist independently and in perpetuity (meaning for forever) regardless of whether a government agrees that they are rights or not. Legal rights are the interpretation and organization of natural rights but they don’t supersede them, they don’t determine them.
Still not sold? Consider that slavery was legal nearly everywhere in the world until it was overturned based on the foundational principle that every individual has natural rights granting freedom which the U.S. government cannot deny. Consider this opinion from the landmark case Loving v. Virginia from 1967 which struck down anti-miscegenation laws barring interracial couples from marrying.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Again, the government, the Constitution doesn’t grant freedom to marry. All people have the right to marry as a natural right that they have as a result of being people on Earth. That’s literally the only requirement.
For Conservatives, this latest ruling should be a boon since it affirms these natural rights and limits the power of government in the lives of citizens since it affirms that in this most important of relationships we are our own masters. But sadly that seems not to be the case and many have hidden behind an attempt at legalism and tradition in order to deny some of their fellow citizens this fundamental right.
So no, the Constitution doesn’t grant the right to marry, it affirms it as a fundamental right, and if anyone denies this argument consider that if natural rights did not exist then there would be no thing which a government could not in good conscience deny its citizens. All manner of cruelty and brutality could be deemed legal with no philosophical armory with which it could be opposed.
If natural rights did not exist then none of us could claim to be free and it would be the government that granted us every liberty we enjoyed meaning, of course, that they could be taken away without heeding a word of protest. We would not be who we are but would instead be at the capricious mercy of the tyranny of the majority under whose arbitrary banner none would be safe.