Saturday, April 18, 2015

Why gays should (continue to) have the right to marry

I was in a “discussion” on social media the other day, about the whole “gay marriage” issue, which went horribly. One “Christian” was arguing that nobody has a “right” to marriage. He is wrong, of course. Everyone has the right to marriage. Here is a post listing 14 supreme court cases upholding the right to marriage as being fundamental. To quote from one of the cases, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” For better or for worse (pun intended) marriage has been recognized as a fundamental human right by the supreme court.

Even the Catholic ode of Canon law states in Canon 1058: “All can contract marriage who are not prohibited by law.” It then lists a whole bunch of conditions under which the law prohibits a marriage, but sexual orientation is not among them.

The whole “gay marriage” argument is based on the claim that “gay” people (meaning people who have same sex attraction) are not allowed to marry. Just as in the days of racial segregation and slavery, when whites and blacks were forbidden to marry, so too are gay people forbidden to marry.

However, there is no prohibition forbidding gay people from marrying, either in US law or Canon law. Today any gay man and woman can go to a justice of the peace or other official and be married.

“But wait, Mike!” you say “You're being sneaky!” I am and I'm not. The fact is that the “gay marriage” movement is being sneaky, by calling something a marriage that isn't. They liken their case to the case of interracial marriage. For instance, in the aptly named “Loving v. Virginia” the court struck down a Virginia law that forbid blacks and whites to marry each other. Surely choosing to marry a gay man should be just as protected as choosing to marry a black man.
And it is. There is no law preventing a woman from choosing to marry a gay man, or a black man, or an atheist man or any other kind of man. There is no unjust law to be struck down.
Instead the whole thing is subterfuge to force a redefinition of what a marriage is. Interracial marriage was not about people doing something different from single race marriages, but about allowing different people to do the same thing. Gay “marriage” is about people doing something different from marriage, but forcing others to change their definition of marriage to conform to their (the gay marriage proponents) will.

“But Mike!” you say “You don't understand. These people love each other! Why can't they marry?”

I applaud the fact that they love each other, but love isn't marriage. I love my mother. I can't marry her. I love my sister. I can't marry her. I love my best friend. I can't marry him. But let's say you're right – love is synonymous with marriage. Then what is the state's role in this? Is it necessary for the state to approve of my love or your love? If marriage just means love, then it is a private thing between two people, and doesn't require any outside person to acknowledge it (like the state, or a bakery).
Furthermore, if marriage is just love, then why can't I marry my sister or my friend? Why can't I marry my sister and my friend? The fact is you can't marry anybody. That's already established law. From the original article, Griswold v. Connecticut says:
Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.
“But Mike!” you say “You don't understand. Marriage is just a contract. Why can't two people make a contract?” Because marriage is not just a contract. If all marriage was were a contract between two people, then any two people might in fact enter such a contract (or non-person legal entities, such as towns, governments and corporations). But established law is that marriage is not just a contract.
Again, from the article, Griswold v. Connecticut cites Adams v. Palmer, ME:
"It [marriage] is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is, rather, a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself; a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life and the true basis of human progress."
and Noel v. Ewing, IN:
In Noel v. Ewing, 9 Indiana, 37, the question was before the Supreme Court of Indiana as to the competency of the legislature of the State to change the relative rights of husband and wife after marriage, which led to a consideration of the nature of marriage; and the court said: "Some confusion has arisen from confounding the contract to marry with the marriage relation itself. And still more is engendered by regarding husband and wife as strictly parties to a subsisting contract. At common law, marriage as a status had few elements of contract about it. For instance, no other contract merged the legal existence of the parties into one. Other distinctive elements will readily suggest themselves, which rob it of most of its characteristics as a contract, and leave it simply as a status or institution. As such, it is not so much the result of private agreement, as of public ordination. In every enlightened government, it is preëminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity."
Not that I regard the Supreme Court as infallible, but to be fair, if arguments for redefining marriage are put forth based on legal precedent, we must also take into account legal precedent against those arguments. It appears that in many cases the argument against is in the same legal case, which indicates that the decision is being taken out of context.

In summary, there are good and bad arguments for holding to the "traditional" definition of marriage. "Marriage is not a right" is a bad arguments. On the other hand, I have yet to hear a good argument for redefining marriage.
I issued a challenge two years ago, for someone to show me what right is being denied by “traditional” laws regarding marriage. So far nobody has taken me up on it. I know people claim rights, but those “rights” all assume that gay “marriage” is the same as marriage, which is what is being decided. You can't make an argument by assuming a result is correct and then claiming you are correct based on the assumption. That's simply begging the question.


Hi Mike, great post! But my own thoughts on the matter:

A right by it's very nature would be something that the government, or individual could not deny unless it's via due process (aka a trial)...I wouldn't say that marriage is an unalienable right, at best I'd say it's a conditional right...If marriage is a right, then those that are arguing in support of gay marriage will win...because a right by it's very nature can't be denied by the government, individual or religion.

Conditional right, is more or less how the Church refers to rights when she speaks of them. Consider our rights to the sacraments for example. We must be in the state of grace to receive the full graces from them...Obviously the only way for a priest to know that is for us to go public with our soul's state as such we'd have to be denied the sacraments via CIC 915-916. (There are various other conditions too...but this is assuming the others are met)

I've never agreed with the government defining marriage to be a right. If we take this to a particular conclusion. If there is a right to be married....Okay, that means I can not only ask anyone to be married, they'd be under obligation to say yes to the request...regardless of their state in life....Let's just watch as society crumbles in such a situation :p....

Leads us to the question, does the state have a right to discriminate? I've spoken a bit about it at my own blog. I argue that yes, the state does have a right to do so. (part A)

I simply think we're taking two approaches to the same end.

Post a Comment