There has been significant uproar about the supposed violation of rights caused by Proposition 8. Before you believe the hyperbole and start spouting analogies between the gay “rights” movement and the civil rights movement, consider this.
First, some basic distinctions: positive rights, negative rights, and equal rights.
Positive rights theorists argue that people are entitled to stuff (or things if you prefer). These positive rights are usually framed as general slogans: ‘everyone has a right to a good education,’ or ‘everyone has a right to basic food and shelter’ etc. These ‘rights’ sound benevolent and non-controversial when framed in the passive voice. They don’t sound so great when stated more clearly: ‘you have to pay for your neighbors’ kids to be educated,’ or ‘you must give food and shelter to anyone who needs it,’ etc. Thankfully, the Supreme Court has not yet given positive rights theory favorable treatment.
Negative rights theory is founded on individual autonomy and personal responsibility. Rather than detailing supposed entitlements, negative rights describe individual liberty. Negative rights correlate with the natural rights principles embodied in the Declaration of Independence and the Constitution. These rights are not provided by government; they are an inherent part of being human, and people from all different backgrounds and upbringings recognize them almost instinctively. An easy way to distinguish a negative right from a positive right is to ask whether the questioned right would require the participation of anyone else. Compare the right to life with the right to education. No one else needs to do anything to grant you the right to life. In fact, if every other human being were to disappear, you could still exercise your right to life. Conversely, the ‘right’ to education requires that someone else provide the education. You must enslave someone else to provide you with education because it depends on another’s action.
Equal rights are a little more complex than either positive rights or negative rights. Equal rights derive from the principle that all people should be treated equally under in the law. This clearly does not mean that no distinctions can be made between people. If that were the case criminals could not be imprisoned because that would be unequal treatment. The root of the equal rights principle is that the law may not make distinctions between people without a legitimate reason for doing so. What amounts to a legitimate reason is the subject of endless debate. Some reasons are easily categorized as illegitimate basis for unequal treatment, such as race and religion. Other reasons are clearly legitimate, such as violent behavior harming others.
Equal rights questions become increasingly complex as government expands into more and more areas of human life. For example, there is no natural right to free education, but since government has extended the opportunity to some citizens, equal treatment under the law requires that it extend the same opportunity to all citizens. However, even with education, the government makes distinctions. For example the opportunity for free government education ends once a citizen reaches a certain age.
Now that the terminology is clear, on to the meat of the issue.
Homosexual marriage is an equal rights question. There is clearly no natural right to civil marriage; civil marriage is the formal recognition by the government of an emotional and legal commitment. Since the formal recognition depends on government action, this is not a natural or negative right. So, a right to gay marriage could only be justified under an equal rights argument. However, as explained above, government must treat people equally under the law, but it also must make distinctions between people in determining what equal treatment requires. Many people are deceived into thinking that gays should have an equal right to be married because they do not recognize the legitimacy of the distinction between same homosexual couples and heterosexual couples.
Equal rights arguments do not justify homosexual marriage because of the unique history of civil marriage. Civil marriage was partly a consequence of government entanglement with religion. This entanglement resulted in a number of laws whose primary justification was promoting morality. Many of these laws criminalized sexual behavior that the majority of citizens viewed as immoral, such as fornication, adultery, bigamy, and homosexuality. Many commentators have written about the illegitimacy of laws that prohibit private consensual behavior, but the fact remains that such laws are still on the books. Civil marriage was the product of such laws.
Because of its history, civil marriage embodies a moral judgment by the majority. If someone objects to that moral judgment or the legitimacy of embodying that moral judgment in a government institution, then the proper response is to challenge the institution—civil marriage. The argument would go something like this: marriage is not a proper function of government; it is an entirely private matter between individuals and perhaps churches; therefore, government should stop issuing marriage licenses and abolish any benefit to married couples as such.
To state the problem more clearly, equal protection under the law prohibits the government from making illegitimate distinctions between individuals when applying its laws. Since civil marriage is the product of a majority moral judgment, it is perfectly legitimate for the government to distinguish between marriages that comply with the majority moral judgment and those that do not. If there is dissent from the majority moral judgment, the proper response is to argue against that moral judgment’s embodiment in a civil institution, not to force the majority to adopt a new moral judgment to justify the institution.
Since the only valid reason for government to recognize marriage at all is majoritarian moral judgment, it is irrational to bring an equal rights claim against the government’s use of majoritarian moral judgments as the distinguishing factor when deciding not to recognize homosexual marriage.
Forcing the majority to recognize homosexual marriage contrary to its morals would not reflect equal protection under the laws; it would be the recognition of a positive right to marriage between any consenting adults. I will save detailed explanations for why positive rights theory is illegitimate for another post.
One final argument that I often hear from supporters of homosexual marriage rights is that it isn’t about the moral judgment at all; it is about the tax status, the default inheritance rules, etc. That is completely false. All of those things can be achieved through legal contracts without changing the marriage laws. The real issue is that homosexuals want a stamp of acceptance and approval by the government that says, “this relationship is OK there is nothing wrong with homosexuality.” Since they can’t convince their neighbors that they are right, they want to force the issue in the courts.