On the Matter of “Rights”
By Steven Osborne | Monday, August 9th, 2010 | Catch-All, PolicyWith the continued debate over the strike down of Proposition 8, the legal discussion has honed in on the question of whether or not the institution of marriage itself is a fundamental right.
Former Ohio Secretary of State Ken Blackwell and attorney Ken Klukowski have written an analysis on the Walker decision that illuminates some of the Constitutional issues regarding this case.
In defending this government power grab, some have pointed to past cases in which the Supreme Court recognized a “right” to marry.
To that point, it is true that there is a fundamental right to participate in the already existing institution of marriage. Just as there is a fundamental right to participate in other societal institutions.
What the Walker decision asserted, however, was that the institution of marriage itself was a “right.” If marriage itself is a right, then anyone can exercise that right in any way they please. Judge Walker insisted that this “right” has always existed, which is a mute argument when you consider that one can claim the preexistence of any “right” he wishes to exercise. There is no basis for this “right” other than a judge’s decree. The Walker decision still held that this “right” of marriage is still to be restricted only to two individuals in a union. This undermined the very contention that marriage is a “right.” If marriage is a right, then what about polygamous marriages?
While in the past, court decisions have struck down laws barring a certain man or a certain woman from marrying the opposite sex, this decision sought to give a government redefinition of what a marriage actually is, in doing so, the court acted outside of its jurisdiction. The bottom line is that while there is a right to participate in the already existing institution of marriage (a union between one man and one woman), the institution of marriage itself is not a right that an individual can exercise at his own whim.
This is not just with the marriage issue, we have also seen this with the Healthcare debate. In which President Obama and his progressive allies referred to the “right” to healthcare. We have seen a pattern with this in the Age of Obama, and it may turn out to be a defining trait of his administration. Although he must be given credit for the fact that at least on paper, he is in favor of traditional marriage. Still, we see a pattern in which anything and everything that the progressives want enacted becomes a “right.”
It is important for us to remember that according to our Declaration of Independence, we are “endowed by our Creator with certain inalienable rights.” The government is not the giver of our rights, God is. Whether we are dealing with marriage, healthcare or entitlements, we need to realize that our government is limited and part of that limitation is protecting our rights that already exist, and not creating new “rights.”
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About the author
Steven Osborne is a grassroots conservative activist from Central Virginia. He is currently furthering his education at Liberty University in Lynchburg, Virginia. In addition to writing for Bearing Drift he is also a columnist for the Christian Law Journal.
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14 Responses to "On the Matter of “Rights”"
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Can we think of any other right/privilege/institution regulated by the government through the issuance of permits/licenses that use gender as a deciding factor on whether or not a person may be issued a permit/license?
Or number?
Why is bigamy against the law, using the same logic?
That’s a great question, Brian! As you may recall, I was once a member of a church, the Mormon Church, which condoned polygamy at one time (and spiritually still does). Funny enough, they were major supporters/donors of the Prop 8 campaign.
As long as all parties are treated equally under the law, there may not be any legal basis for prohibiting bigamy. Westerners have just normally upheld monogamy. The debate here, and even for gay marriage, is how we view a committed relationship and the formation of a household or family unit. Is it possible to be in that kind of commitment with more than one person at a time, and should such a marriage be between all parties in the relationship, the man and his wives or the wife and her husbands?
Going back to my gun analogy, there is precedent for the government limiting the number of guns that can be purchased during a window of time. You could argue that the government can regulate the number, but not prohibit access based on gender.
BK- as we generally think of it “bigamy” implies deception of one party by another as to their true marital status. In the case of those who willingly enter a polygamous marriage, I think you and other conservatives who have raised this objection to the Walker decision have a point. What is the state’s interest in telling consenting adults that they can not legally enter into a plural marriage? Seems obvious that, as in the case of the ban on same-sex marriage, the only interest is in enforcing a religion-based standard of behavior.
“We have seen a pattern with this in the Age of Obama, and it may turn out to be a defining trait of his administration.” You have to put Obama and his administration in context. Now, before you “birthers” weigh in, these comments are directed about after he was born, not when/where/how/why.
Obama was raised as a Muslim, was taught as a Muslim, prayed as a Muslim until the divine intervention of Jeremiah Wright who brought Obama into the mainstream to knock off his rough edges and groom Obama for future greatness. After Obama won the election, Rev. Wright was thrown under the bus because he didn’t quite fit in with Sharia customs and was a magnet for controversy for statements which Wright articulated in his sermons – “The Day of Jerusalem’s Fall, 2001″ and “Confusing God and Government, 2003″ which were made public in 2008.
There has been a lot of carping, complaining and shock about the details of our “transformation”. But nothing is really shocking here given that Sharia provides guidance and recommended actions on many of the issues that are being fundamentally “transformed” and rammed through our collective government today. These issues include crime, politics, economics, sexuality, hygiene, diet, prayer and in the foreseeable future, fasting. Obama’s rhetoric sounds so good and we take it at face value, but what he says means something else since he isn’t working from the same religious or moral foundations which most Americans share.
If you look closely, you can see the collectivist threads of Sharia though almost all of Obama’s proposals, budgets and speeches as he pulls us kicking and screaming into the “Dreams of Father” on our way to his “Audacity of Hope”. I just hope that most of us don’t turn our heads too late to see the wheels of the bus approaching our infidel heads.
Um, TimJ? Don’t want to derail your paranoid rant there…but gay marriage is part of Sharia law? What have you been smoking?
I wonder if the thought of JOINING the Tea Party will cross the minds of Nye, Warner, or Webb today ??
But enough.
One thought has crossed my mind with these debates about prop 8.
What definition of marriage are you all using and who gets to define what marriage is ??
Steve, your ADD is flaring up again and you should up your dose of Ritaln because you didn’t notice that the overall post was about “rights”.
As the post wandered off of “marriage” to “rights”, my comment was prefaced in the discussion of the Health Care debate, and the general comment about our “rights” being redefined by Obama.
Paranoid?… tsk…. “Paranoia is knowing all the facts” – Woody Allen
Steve, you left out the rest of the “We are endowed by our Creator [that was the word, not God] with certain inalienable rights…the right to life, liberty and the pursuit of happiness. This has been the basis for the pro-life movements constitutional argument since the movement began. Why should it not apply to “gay” marriage?
There was a time in the not-too-distant past when the marriage between a person of color and white person was illegal too (misogeny).
This has got to be one of the dumbest posts I’ve ever read. Have you realized that, in arguing against gay couples’ right to marry, you’re indeed not the limited government conservative you claim to be?
Chris: I think he’s a religious conservative, that’s different than a limited-government conservative although they can sometimes reach argeement on some issues.
You’re correct that the limited-government, traditional conservative approach to this issue would be that it’s none of the government’s damn business.
But, as Brian and I both mentioned above, that would also apply to plural marriage.
Which is okay with me if that’s what people want to do, although being married to two wives, with two sets of in-laws and two sets of hormones to deal with sounds like a nightmare to me.
Not sure whose post was the dumbest one. I am limited government conservative and have no problem with “gay marriage” or “civil union” if that’s what you want to call it. I sure as heck don’t want to live under the American version of the Taliban.
@steve vaughan
What interest does the federal government have in restricting polygamist marriages? Well let us look at the existing polygamist sects here in America.
They have little baby boys and girls in equal numbers. They teach these children that to reach heaven you must have multiple wives. Problem is there are not enough females to go around so they kick the males who do not measure up out of their sick societies. What are all the extra males supposed to do? Perhaps they can become gay to meet their sexual needs?
You libertarians need to cop a grip. If we follow your lead prostitution would be legal too.
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