The Nature and Source of Rights

17 May

I have noticed that much of the anti-marriage equality talking points focus on the question of who gets to create rights, objection to creating new “special rights” for people, and the argument that no “right to marriage” exists.

But the question of rights — what they are, who has them, how they are established and protected — is not complicated.  A basic review of high school Civics Class will suffice… or at least a quick review of an Intro to Political Philosophy.

Generally, there are two kinds of rights (or liberties), broadly understood as “negative rights” (or liberties) and “positive rights” (or liberties).  That is, we both have the right from certain things (negative rights) as well as the right to certain things (positive rights).

In the United States, are rights are detailed in our foundational documents (Declaration of Independence), the Constiution and in our laws and jurisprudence system.

At its simplest, the Declaration of Independence expresses are rights this way:

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…

In other words, we have the right to pursue and protect our life, liberty and pursuit of happiness. While those are very general, both in the Constiution and jurisprudence, more specific rights get spelled out: free speech, free press, freedom of religion, freedom of assembly, right to due process, right to privacy, right to bear arms, etc, etc.

The general principle is this: presumptions favors freedoms, liberties and rights.  We do not need to grant rights (they already exist… life, liberty and pursuit of happiness!) but at times, may need to limit rights for a compelling state interest. (As part of the “social contract”, we all agree that a compelling state interest may be grounds to limit individual rights; the courts exist, in part, to adjudicate this very issue… does the state have a compelling interest in limiting rights).  

So while we don’t vote to create rights, sometimes we vote (by representative in the case of legislation or directly in the case of a referendum) to limit rights based on a compelling state interest (burden of proof, being on the state or on those trying to limit rights.)

The legal procedings around the appeal of California’s Proposition 8 is an example of this process. Those opposing marriage equality tried to make a case to the courts that there is a compelling state interest against marriage equality.  The courts, so far, have roundly rejected these arguments and found that there is no compelling state interest in limiting marriage rights to only heterosexuals.

There may be good and valid religious reasons to oppose marriage equality.  But that is a far cry from a compelling state interest in limiting the rights of a minority population in our society.  

We are not a theocracy nor do we force our religious convictions or morality onto others.  The religious objections to marriage equality are legally irrelevant.  The only way to oppose marriage equality is to actually believe there is a compelling state interest against gay couples getting married.

There are those who do believe that there is a compelling state interest.  They site bogus science about the harm of gay relationships, gay parents, etc.  They make hyperbolic claims that gay marriage will undermine a foundational instiution and undermine our very society.  Of course, there is no evidence for this claim — empirical or otherwise.  For example, no one can point to any societal damage that has been done with marriage equality in Connecticut.

The right to marry is different than the rite of marriage.  The government should be silent when it comes to the marriage rite; and religious conviction is no reason to limit marriage rights.

Frankly, it is really that simple.

And while there is no argument for a compelling state interest in limiting marriage rights from gay and lesbian people, we know that the harm to our citizens is real and tangible… just watch this video:

And while there is no sound scientific argument against gay marriage, gay parents or gay families, there is a compelling state interest in supporting gay families… and respecting them… again, just watch this video:

We live in a country based on rights and liberties and the protection of both.  We rightfully reject any law that overly limits our rights and freedoms that are not justified by a compelling state interest.  There is no compelling state interest against gay marriage; and therefore, there is no legal argument against it either.

For we hold these truths to be self-evident…


1 Comment

Posted by on May 17, 2012 in Uncategorized


One response to “The Nature and Source of Rights

  1. Rick

    May 18, 2012 at 12:51 am

    Rights are meant to be extended.. The framers of the Constitution could not decide why a free person was the 2/5th more of a person upon paying for their freedom. Quantitatively/Qualitatively, what changed in the financial transaction?Watch "Birth of a Nation" and you can see how terrified whites are of African-Americans and that liminal space is still alive and well amongst those of us with the coldest of hearts.It is the exact same process that we are seeing today. Heterosexual folks were terrified of the liminal menace of any deviance from what they considered ‘normal’- even if the terror comes from within them. Until the 1970’s gay, bi, and transgendered people were a defective, incomplete person- not full citizens. There is no argument for this other than the last stand of the simple minded, "It JUST IS!"To the bigots and haters, please move, you have no chance. Uganda is a good place to move today just as South Africa was perfect for the hardest of racists in the 1960’s and 70’s. Yet apartheid ended… So, to the haters, go to Pakistan, Saudi or Uganda and enjoy the ‘normalcy’ while you still can. Good luck and don’t let the door hit you in the butt.



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