There are some key points which need to be considered in deciding the need to legally allow – and protect – marital rights for particular groups. I want to focus on what Thomas Jefferson wrote, what the Supreme Court has said in cases which can be extended by principle to same-sex rights, and what are some fundamental concepts of what define rights. This is an extension of a recent post.
A central concept of what defines an important part of American society is the ‘separation of Church and State’. Jefferson coined this phrase in his Letter to the Danbury Baptists. But he said something more than that, something which speaks of the role of government regarding rights in general.
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for is faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.
The man was not one for ambiguity. The government should not be in the role of legislating morality. Its role is to protect the freedoms of its citizenry. If there are actions which happen to be immoral and the government outlaws them, it is not because of the question of morality; it is because those actions infringe upon the rights of others. That morality is imposed de facto is incidental.
But this is not to say that morality does not get directly legislated. It does. And that’s unfortunate. But Jefferson loathed such a notion. He was clear on this. What one believes and does is not of concern to the government except insofar as said beliefs and actions make a real world impact; they must restrict the rights or freedoms of others, cause physical or financial harm to others, or rob the property of others. If one’s beliefs and actions do none of these things, the government is not to give its say. Jefferson embraced this principle.
There’s another important concept that Jefferson subsumed. When writing the Declaration of Independence, as I said in my aforementioned/aforelinked post, Jefferson wrote of non-temporal, transcending, universal rights. He wasn’t specific to his culture or to his race (though slavery was legislated as a matter of the fact that it was something that existed and needed to be addressed, whether any one liked it or not). No, instead he wrote a sweeping declaration of the rights of all people, something that was far larger than the conflict facing Great Britain and its American colonies. One of those declared, inalienable rights was the pursuit of happiness. Its importance cannot be understated.
In the 1967 Supreme Court case Loving v. Virginia (how appropriate a plaintiff in how appropriate a state in which for this to have happened), Chief Justice Warren wrote, “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.” He was ruling on an anti-miscegenation law. That’s a law which prohibits the mixing of racial groups in various settings, often including marriage. It was easy to recognize just how illegitimate a law it was. It prohibited and restricted the freedoms and rights of an entire group of people and for no good reason. Interracial marriage offered no impact on the rights of others, no infringement upon their lives, liberties, or pursuits of happiness.
Expanding upon this concept of rights I have laid out is this either unsourced or poorly sourced quote. It may be from a man by the name Marty Lewinter.
“As Justice Oliver Wendell Holmes said, ‘The right to swing my fist ends where the other man’s nose begins.’ Rights must apply to everyone in the same sense at the same time. So rights must therefore be limited to claims of freedom to do anything which does not violate the freedoms of others. This requires recognizing, respecting and abiding by anyone else’s wishes to be left alone whenever he wants, and his wishes to be free to do anything which doesn’t violate others. This is why no one can claim a ‘right’ to interfere with your life in any way without your explicit, personally-given consent for a specified purpose. There can be no such thing as a ‘right’ for anyone (or any group) to mess with you whenever he wants (or whenever they want) since it obviously isn’t applying to YOU in the same sense at the same time.
Regardless of who said this, it encompasses a principled, universal idea of what rights really are. An individual’s rights should go as far as possible. Where the limit comes is from the infringement upon the rights of others. In order to justify the restriction of the rights of a person or group, it must be shown that said person or group never really had the rights in question in the first place; if that person or group is infringing upon others, they are doing it not by the free exercise of their own rights, but by the exercise of something else, something probably sinister. No person or group has the inalienable right to negatively impact the rights of another person or group.
This all aptly applies to same-sex marriage. There has been no convincing case made against allowing all adults into the institution of marriage. The union of two consenting individuals says nothing of the rights of two unrelated*, independent individuals. There is no infringement upon others. Same-sex marriage violates no one’s rights.
The outlawing of same-sex marriage, on the other, hand does offer a violation of the principles set forth by Jefferson, utilized by the Supreme Court, and embraced by philosophers, professors, and thinkers. By denying rights to a group, it must be shown that they are causing some form of harm through action. This harm must happen to people who did not consent to having any action imposed upon them. To date, no one has made out a good** case that any harm has or can or will be done to anyone. What has been made abundantly clear, however, is that the denial of certain freedoms and rights to the gay community, especially concerning marriage, does infringe upon many of the ideals espoused by the aforementioned groups and entities. By disallowing same-sex marriage, government is disallowing a rightful pursuit of happiness. It has not a right to do any such thing. Indeed, it has a specific obligation to explicitly do otherwise.
*This does not refer to familial relations. But to address the point, same-sex unions also say nothing of the rights of those in the family of the couple.
**Hell, the cases laid out so far are so awful, calling them “bad” would raise their status to an undue level.
Filed under: Politics and Social | Tagged: Chief Justice Warren, Declaration of Independence, Founding Fathers, Justice Oliver Wendell Holmes, Letter to Danbury Baptists, Loving v Virginia, Marty Lewinter, Separation of Church and State, Thomas Jefferson | Leave a comment »
For the Sake of Science 