Homosexual Marriage is not a Civil Right

The debate over same-sex marriage has not been settled in this country. Instead, the militant homosexual lobby has simply declared that the debate is over and is trying to shut down conversation. The manner in which they are bullying their opposition into silence is by pushing the idea of homosexual marriage as a "civil right." This is manifestly false, but has unfortunately been repeated so much that ignorant Americans are starting to accept it as a given. Of course, if one admits that homosexual marriage is a "civil right", then to deny the legitimacy of same-sex marriage puts one in the same category as racists who would deny blacks the right to vote - and as we will see, advocates of same-sex marriage are pushing comparisons to the old Jim Crow laws against race mixing to frighten their opponents into silence. In this article, we will examine why homosexual marriage is in no way a "civil right." We will also confine ourselves to using arguments from law and common sense, because in the public debate on this issue, religious and moral considerations are often not given any weight, which is unfortunate. 

In the first place we must revisit the concept of a right and from whence any given rights proceed. We hear of various sorts of rights all the time; "human rights", "civil rights", "First Amendment rights", "riparian rights", "right of possession", and so on. A "human right" is a right that we possess by virtue of simply being human, like the right to life. A "First Amendment right" is a right whose origin is found in the First Amendment to the United States Constitution. "Riparian rights" are those rights to the usage of water that one possesses by virtue of living on the shore of a river or lake (Latin: riparia, "shore"). A "right of possession" is the right to use and benefit that is derived from the fact of legal possession of some good.

Keeping this all in mind, a "civil right" is a right that is possessed by virtue of belonging to the cives, the "commonwealth", or to put it more simply, a right that one possesses by virtue of their citizenship in a state (Latin: civitas, "citizenship"). In the United States, these would be those rights enshrined in the Bill of Rights, of course, but more importantly for this discussion, those derived from the 14th Amendment's promise of "equal protection under the law" and "due process" for all citizens. So a civil right, then, is a right one possesses by virtue of possessing citizenship in this country, as formalized in the 14th Amendment's promise of equal protection.

The question then becomes: Is homosexual marriage something that one has a right to simply by virtue of citizenship?

Here is where the crux of the argument lies, because a civil right only guarantees the fact of a particular right, not the content implied in the exercise of that right. For example, civil law upholds the rights of contracts to be entered into and enforced, but says nothing about the content of such contracts. Law defends the right of private ownership but says nothing about the particular objects a person owns. It defends the right of employers to enter into employment agreements with employees and for people to freely look for work, but says very little about the sorts of work people may engage in or the particular types of agreements they might make.

Now, while the right to make a contract, the right to engage in employment, and the right to secure private ownership, are all civil rights, the details, or the content of such issues fall under the realm of various other bodies of law - business law, labor law, property law, and so on. Thus, while a man might justly argue that being denied the right to seek employment is a violation of his civil rights, he could not argue that his employer's failure to, say, provide him with appropriate protective gear for his job is a violation of a civil right. Civil rights guarantee the fact of him being able to seek employment; the details or content of his employment are regulated by labor law. The appropriate legal channel to address questions of the safety of a workplace would not be through appeals to civil rights, but to labor law. Civil rights only guarantee one the fact of being able to enter into employment, not the conditions or details of that employment.

Applied to marriage, then, the right of persons to enter into the married state has always been recognized as a civil right, but the content or details of who one might marry and under what condition have always been considered subject to State marriage law. It would be a denial of a civil right to tell someone, "You cannot enter into the married state," but it is not a denial of civil rights to assert that the State has the right and public interest of regulating to whom and under what conditions the married state can be entered into. That falls to marriage law, which is a just function of State government. 

Thus all persons retain the civil right to enter into the married state; this is a fact. Homosexual persons have always possessed the right to enter into the married state - they simply have to marry a person of the opposite sex. 

Now, an advocate of homosexual marriage would strongly object to this reasoning, because they would argue that they are denied the right to marry whomever they choose. This argument, in fact, demonstrates that homosexual marriage is not a civil right, because it shows that the issue is not about the right to enter into the married state, but the contents of what constitutes the married state; it is not about whether homosexuals can marry, but whether people are free to define the married state however they choose. This is why opponents of same-sex marriage have always argued that this issue is about the formal definition of marriage, not the violation of a civil right.

But to examine this question further - while a civil right is meant to guarantee equality in particular points of law, that is only one half of the picture. There is an old saying that goes back to Plato - equality for equals, inequality for unequals. In other words, when a right is applied equally to everyone in a given class, it is because it presupposes there are no essential distinctions within that class that would preclude the right from being equally applied. To take an example the same-sex crowd always brings up, this is why the old Jim Crow laws against interracial marriage were struck down as civil rights violations. It was recognized that men were men, and women were women; race is not intrinsic to sexuality, therefore there is no compelling distinction between the races that would preclude them from freely entering into the married state. Essentially, the overturning of the old prohibitions on interracial marriage supports traditional marriage because the law recognized that any man can marry any woman. Therefore the racist Jim Crow marriage laws were true instances of civil inequality because they were proposing distinctions in the application of rights which were in fact irrelevant; any man is capable of entering into marriage with any woman, and the right for any man to enter into the married state with any woman could not be infringed.

However, this is not to say that there are not cases when a true distinction arises which necessitates a different approach. For example, every doctor has a right to be able to seek employment, but not any person has the right to claim to be a doctor. A person without a medical license is not entitled to the same privileges and rights to practice medicine as a person with one, and it is no denial of civil rights to say this because whether or not one is a licensed doctor is intrinsic to what it means to practice medicine in our society. A person without a college degree cannot claim the rights of a person with a college degree, nor can a person without a security clearance claim the rights and privileges that come with a security clearance. Persons without these qualifications are treated unequally from persons who have them, because the possession of such credentials are intrinsic to these classes of individuals.

We all understand that these are real distinctions intrinsic to the occupations or situations they are relative to, and that it is no discrimination or civil rights violation to say that these distinctions make a true difference. This is because we are not dealing with an artificially imposed inequality, but simply with the boundaries of certain definitions. The definition of a lawyer is one who is licensed to practice law, and to say as much does not imply any prejudice against those whose profession does not include licensing to practice law. To definition of a college graduate is one who has a college degree, and to say so - and to reflect the fact in law - implies no prejudice against those whose credentials do not include a college degree.

We see, then, that this does come back to definitions. The same-sex marriage lobby has skirted the question of the definition of marriage by arguing the universal right for any person to marry any other person. It does little good to argue for same-sex marriage as a civil right whilst simultaneously avoiding the question of defining the institution of marriage. Obviously, the same-sex marriage lobby has done this because they can offer no definition of marriage which would allow for gay marriage while excluding other even less savory arrangements (polygamy, polyandry, incest, pedophilia, etc). 

It is commonly understood that marriage is a unique relationship that is permanent and presumptively procreative, which means that it involves sexual intercourse. Not all types of relationship involve sexual intercourse; friendships may be very strong, ties of blood, professional relationships - all may be strong, but they are not marital because they do not involve sexual intercourse. And that is fine. To say the marital relationship must include sexual intercourse involves no prejudice against those whose relationships do not include intercourse. And, unlike race, the ability to engage in sexual intercourse is intrinsic to what marriage is, and because the ability to engage in intercourse is dependent upon gender, gender is absolutely intrinsic and central to marriage. There is no civil rights violation in simply asserting this is the case.

What is really at stake here is whether the definition of marriage will move from the objective to the realm of the subjective. In the pushing of an alleged "civil right" to enter into homosexual marriage, the pro-gay lobby is arguing for an understanding of marriage that is based purely on the consent of two parties regardless of any objective criteria - the right to define reality as they see fit and compel the public to accept these arbitrary definitions and enshrine them in law.

Of course, such an interpretation is profoundly subjective and personal, reflecting the modern error of presuming that marriage is a purely private arrangement with no public purpose. On the other hand, the traditional conjugal definition of marriage acknowledges that government issues marriage licenses because marriage serves a public purpose. We know that when men and women come together they have sex, and sex makes babies. This has tremendous consequences for the common welfare, and so government wants to unite men and women and tie them to any children born of their union. Marriage is an exclusive, presumptively procreative and permanent contract between a man and a woman, which regenerates society and provides enormous benefits for the common good. 

This means that marriage is not, from a civil perspective, the public affirmation of love. If this were the case, government would be issuing love licenses, not marriage licenses, and this is obvious since friendships or courtships are not issued licenses. So marriage’s public purpose is to unite a relationship that is potentially life-giving, legally binding parents to the children they create. This sort of union can only exist in the traditional concept of marriage and not to any other union. As we have said above, it is no denial of anybody's civil rights to assert that the right to claim the status of marriage can only exist within this context; the fact that it does not apply to other sorts of relationships is no more a violation of civil rights than it is to say a person without a medical license cannot practice medicine. Custom has never viewed the question in this sense, nor have legal scholars ever interpreted the 14th Amendment to establish a civil right for anyone to enter into marriage with any other person based on mere consent. The Reconstruction Congress who passed the 14th Amendment after the Civil War would probably have an apoplectic fit if they were told that their legislation would one day be used to affirm the legal right of men to marry men.

As to subsidiary questions of visiting rights at hospitals, end of life decisions, etc. these can be addressed through existing legislation relating to durable power of attorney, inheritance law, etc. They are not relevant to questions of marriage law or civil rights. 

To sum up: a civil right is a right that a person possesses by virtue of their citizenship in the state. Civil rights pertain to the fact of having a particular right (to marry, work, have recourse to the law, etc) but do not deal with the content of such arrangements. Because any person has the right to enter into the married state, the right to gay marriage is not a civil rights violation. Any person can enter into the married state, but not under any circumstances they may choose. The question is not one of civil rights but of the definition of marriage, which is what homosexual activists contest. Since gender difference and sexual intercourse is intrinsic to understanding the institution of marriage, it is no discrimination of civil rights to say that the married state cannot be conferred on those whose relationships do not involve sexual intercourse. Ultimately the argument devolves to the definition of marriage and whether it is a private, subjective concept or a public, objective concept. The traditional conjugal definition of marriage understands marriage as a public good, the details of which are regulated by law in accord with promoting the common good. The homosexual proposition of marriage relegates it to the realm of a private arrangement dictated by mere consent, a definition which is so broad as to allow for no non-arbitrary reason for not admitting other types of unions as marriage as well.

For further articles on this issue see:

Philosophies of Nature
Homosexual Compromise
Homosexual and Heterosexual Household Studies
Homosexuality, Shellfish and the Bible
Roman Rota on the Ends of Marriage

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