As the Supreme Court gears up to hear a same-sex marriage case this Tuesday, politicians, the media, cultural icons and leading advocates insist that the issue is about guaranteeing equal “rights” to all, trumpeting the claim that homosexuals are “banned” from marriage. This begs the questions: How do we define “rights?” Is marriage a “right,” and are gays prohibited from it?
Dating back to America’s founders, rights have been traditionally understood as inherent, or “natural:” Everyone is born with equal rights to life, liberty, and the pursuit of happiness, which correspond to commensurate duties. Our right to liberty, for instance, means we have the duty to respect everyone else’s right to liberty.
If marriage is a right, however, consider the difficulty this poses: If I have a right to marriage, someone else must have the duty to marry me. But if someone has the duty to marry me, it infringes on that person’s right to liberty. To avoid this complication, we are better suited by recognizing marriage as a privilege, not a right.
This brings us to our next question: is marriage a privilege preserved only for heterosexuals today? No. As I have stressed before:
Despite portrayals to the contrary, nowhere are people currently denied the privilege of marrying the person he or she loves (notwithstanding those already married, underage, immediate family, etc. More on that below), not under Proposition 8 in California or in any other state. Proposition 8, for instance, does not ban homosexual marriage. It merely declares that “only marriage between a man and a woman is valid or recognized in California.” This means that if a same-sex couple wishes to get married in a local church or other institution and live a happy and fulfilling life together, they have the right to do so. The proposition simply makes clear that government will not endorse that marriage. It will instead remain neutral.
So, whenever same-sex marriage advocates decry gay marriage bans, such language is deliberately misleading. The truth is there is no such ban; for these advocates, it is not enough that gay and straight couples enjoy the equal privilege to marry, and that we can and should extend equal benefits enjoyed by opposite-sex couples to same-sex couples.
Rather, they believe that government discriminating between relationships on on the basis of gender deprives people of basic rights.Yet, if that is true, then do not separate public bathrooms, separate girl and boy scouts, and separate professional sporting associations also violate those rights?
In sum, marriage is appropriately viewed as a privilege rather than a right, and promulgating the idea that gay couples are barred from this privilege grossly distorts reality. If government choosing to sponsor one form of relationship over another based upon gender is considered a violation of rights, then indeed separate public bathrooms must equally violate such rights.