The Right to Marry...?

In the raging debate over homosexual “marriage” in the United States today, many are the arguments, rebuttals, and counterarguments that are passed to and fro between the opposing sides. Ever since the 1993 court case in Hawaii where the court ruled that  “a ban on such marriages may well violate the State Constitution's prohibition against sex discrimination” (New York Times), the debate has gained prominence and priority in the public square. It has gone so far as to rival and even displace the debate over legalized abortion, becoming a key issue in recent presidential elections and elections for other public offices (The Pew Forum). Amid the different arguments, one argument pro seems to emerge again and again, forming a central point from which all others flow: marriage is a right. This tenant is so central to the discussion that it merits direct and dedicated study. Unfortunately, the answer to the question “is marriage a right?” is not so clear cut as this false dichotomy might suggest. There is no basic right to marriage; yet there is a right to marriage, but not in the same respect.       
By simple, basic, logical deduction, marriage cannot be a basic human right, contrary to what so many proponents of gay marriage would like to believe: in an essay posted on writework.com, the assertion is made that “Same Sex Marriage is a Basic Human Right”, which obviously must rest on the assumption that marriage in any form is a basic human right. There are even many proponents of traditional marriage who would probably consider marriage as they understand it a basic human right, but these are also in the wrong. Basic human rights are those justified claims or entitlements that are intrinsically part of the human existence and are inseparable from any given human except in very few cases, such as when the just government deprives felons and convicts of their liberty. They are undeniable to any man.  As Americans, we fundamentally believe in basic human rights, as is evidenced by our founding document, 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 certain unalienable 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…

The idea of “inalienable” human rights is as integral to our nation as the idea of governmental power coming from the people governed. A human being’s basic rights cannot be infringed upon by any other human being. A man has a basic right to nutrition and hydration: to deprive him of the same would be a terrible crime. By the same token, shelter, liberty, and hygiene must not be infringed upon by any individual. Marriage does not fall into this category in any way. If marriage is a basic human right, then it is intrinsically wrong to deny it to anyone for any reason. This means that if a dirty, disease-riddled old man with a long criminal history and three teeth approached a Miss New York, or some such example of youthful health and beauty, and demanded marriage, and she (understandably) declined, she would be violating his basic human right to marriage. The only way to fulfill his “right” to marriage is to deny her any choice in the matter. It would certainly seem that while marriage is not a fundamental right, the ability to refuse a person’s hand is. To say that the man has a right to marry whoever he wants doesn’t make any sense. It violates the principle of non-contradiction. The principle of non-contradiction is an ancient philosophical idea that says that something cannot both be and not be at the same time in the same respect. The same action fulfills a basic human right while denying a basic human right. Yet it seems that such an elementary fact is lost on even our leaders and public servants. In the recent ruling by Federal Court Judge Vaughn Walker of San Francisco, it was found that the freedom to marry is a fundamental right:
The freedom to marry is a fundamental right… The parties do not dispute that the right to marry is fundamental… Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine 1) the history, tradition, and practice of marriage in the United States…   (pp 109-110)
Despite the clearly worded legal finding, to say that marriage is a basic or fundamental human right is to defy rational reason. Marriage is not a fundamental right, but rather a privilege granted by a religious or governmental authority.
To say that marriage is not a basic human right is not to say that it is not a right conferred on American citizens by United States law. Perhaps here it is good to point out a couple of errors in the original question. To say that marriage is either a right or it isn’t, as implied by the question “is marriage a right?”, is a bit of an equivocation, as it uses the idea that marriage is a legal right to support the claim that it is also a fundamental right. Equivocation is a logical fallacy that uses ambiguous language to mislead—technically speaking, it is the means to an invalid conclusion based on statements in which one term has two different meanings. The statement also smacks of a false dichotomy, which is another fallacy that offers only two options or solutions to a question or problem when in fact there are more than two and sometimes even several options or solutions. There are many things that we call our “rights” that are not basic human rights or needs, such as the right to inherit money from a deceased parent, the right to own a car, and the right to drive in the carpool lane. These things are privileges granted by our government and enshrined in law as “rights”. Marriage is one such legal right. The following information concerning the legality and legal rights concerning marriage is taken with little variance from the Cornell University Legal Information Institution; however, there is enough paraphrasing to make direct quotation a hopeless endeavor. Marriage is, according to current federal law, the union of a couple as spouses. Since 1996, when then-president Clinton signed the Defense of Marriage Act into law, The federal government has recognized “only a legal union between one man and one woman as husband and wife” (1 U.S.C. § 7). This definition still stands on a federal level, but has been altered by numerous states within their borders. Marriage is indeed mostly regulated by the states; the main federal regulation for marriage is the “full faith and credit” clause of the constitution:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof (Article IV § 1).
The basic qualifications for marriage in any state are 1) the parties’ legal ability to marry each other, 2) mutual consent of the parties, and 3) a legal marriage license/contract. States also regulate how legal marriages can be dissolved. Once a couple is married, their rights and responsibilities toward one another concerning property and support are defined by the laws of the state in which they live. A marriage can only be terminated by a court granting divorce or annulment. Under the 14th Amendment to the US Constitution, federal law grants “equal rights and protection,” which would seem to include the legal right to marriage, to all citizens of the United States:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Amendment 14, § 1)
Clearly the law allows for the right to marriage, but only a legal right.  
Now, as a parting thought, let’s ask ourselves how this discussion can be directly applied to the same-sex “marriage” debate.  As is mentioned above, many has been the time that variations of the phrase “but marriage is a right!” has been thrown and bandied about as an argument for the legalization of homosexual “marriage”. Besides the confusion that this statement does (sometimes unintentionally) spread, there is a major problem with using it as a premise to arrive at the conclusion that “therefore gay “marriage” is a right.” The syllogism then looks something like this:

A. marriage is a right
B. homosexual “marriage” is marriage
homosexual marriage is a right

Assuming that premise “A” refers to a legal right allows for a closer examination of premise “B”. Premise “B” is a definition, a statement of the essence of homosexual “marriage”. This definition is wrong. The “evidence” pro this definition is commonly given that gay marriage has been practiced throughout history even back to the ancient Greeks. There have indeed been gay relationships throughout history from Biblical times to the modern day. However, these relationships were universally treated as apart from traditional mixed-sex marriages. Native Americans, Greeks, Romans, name the people—all cultures that had any semblance of existing homosexual unions differentiated between them and marriage (Wikipedia). This is because seemingly all cultures from that day to fairly recently knew that the word for “marriage” in their language actually meant “a mixed-sex union”, as it does in ours. An act of Congress can’t make “green” mean “blue”, a ruling by the Supreme Court can’t make “dark” mean “light”, and an executive order can’t make “ocean” mean “mountain”. Neither can any of these declare that marriage isn’t a heterosexual union, especially using the pretext that marriage is a basic human right.              





--Noah De La Cruz

Works Cited

"Defense of Marriage Act." Thomas.loc.gov. Library Of Congress, 1996. Web. 07 Dec. 2010. <http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396:>.

"History of Same-sex Unions." Wikipedia.org. Wikipedia, 4 Dec. 2010. Web. 13 Dec. 2010. <http://www.wikipedia.org/ wiki/History_of_same-sex_unions >.

Index Page - The U.S. Constitution Online - USConstitution.net. 25 June 2010. Web. 04 Dec. 2010. <http://www.usconstitution.net/const.html>.

Jackson, Jeff. "You Don't Have a Right to Marry." American Conservative News Politics & Opinion - The Land of the Free. 15 Feb. 2004. Web. 04 Dec. 2010. <http://www.thelandofthefree.net/youdonthavearighttomarry.html>.

"Marriage." Topics.law.cornell.edu. Cornell University, 19 Aug. 2010. Web. 07 Dec. 2010. <http://topics.law.cornell.edu/ wex/marriage>.

"Midterm Elections Renew Same-Sex Marriage Debate." Pewforum.com. Pew Research Center, 23 Nov. 2009. Web. 06 Dec. 2010. <http://features.pewforum.org/politics/news- briefs/midterm-elections-renew-same-sex-marriage-debate.html >.

"Same Sex Marriage Is a Basic Human Right." Writework.com. 30 Apr. 2004. Web. 06 Dec. 2010. <http://www.writework.com/essay/same-sex-marriage-basic-human-right>. Schmalz, Jeffery. "In Hawaii, Step Toward Legalized Gay Marriage." Nytimes.com. The New York Times, 7 May 1993. Web. 04 Dec. 2010. <http://www.nytimes.com//1993/05/07/us/in-hawaii-step-toward-legalized-gay-marriage,html>.

"The Declaration of Independence." Ushistory.org. Independence Hall Association, 4 July 1995. Web. 05 Dec. 2010. <http://www.ushistory.org/declaration/document /index.htm >.

Walker, Vaughn. No C 09-2292 VRW. Digital image. Scribd. Aug. 2010. Web. 04 Dec. 2010. <http://www.scribd.com/doc/35374462/California-Prop-8-Ruling-August-2010>.