Natural Rights, Civil Rights, and Gay Marriage

July 4, 2015

Gay marriages should be legal and legally endorsed. But the recent United States Supreme Court ruling (Obergefell v. Hodges) is the wrong way to get there. The right way would involve a Court and a Constitution that recognize natural human rights, civil rights, and the difference.

Natural Human Rights and Civil Rights

People are born with rights. Governments are instituted to protect those rights—at least in advanced cultures. In less advanced ones, people have to rely on family members, security squads, or their own resources.

To protect inborn natural human rights, governments establish another kind of rights—civil rights. Civil rights are granted by governments; natural rights are not. For someone to have civil rights, there needs to be a government; not so for natural rights.

The proper justification for civil rights is the protection of natural rights. If a government grants rights for some other reason, or if it grants civil rights that violate natural rights, then it’s not doing its job. It’s misbehaving.

(“Inborn” and “natural” mean the same thing. “Inborn” is the Anglo-Saxon term; “natural” is the Latin. Yes, using them together is redundant. I know. “Civil” is Latin and refers to what comes with being part of governed society.)

You have, for example, an inborn right to set the terms by which you cooperate with someone else. That is, you have a natural inborn human right to freely make an agreement. But you are not born with a right to a contract. That’s different. To have a contract, that is, an agreement that a government would enforce, you need, well, a government—with a legal system. And such a system is a good one to the extent it protects citizens’ natural right to make voluntary agreements, a bad one to the extent it fails to.

The right of two people to agree to do something is an inborn human right; the right to a contract is a civil right. The right to be left unmolested is an inborn natural right; the right to trial by jury is a civil right. Marriage is a natural human right; civil marriage is a civil right. The difference is crucial.

Marriage is a union in which spouses come to have various commitments to each other. A civil marriage is a marriage legally registered and recognized. Not all marriages are civil marriages. There can be religious marriages, common law marriages, marriages in cultures that don’t have governments. Even an advanced legal system might require that spouses have a religious marriage before having that marriage legally recognized. In those cases, a couple could be married in their faith but not legally married.

Gay and lesbian individuals have an inborn natural right to freely marry—always have, always will. They did in ancient Egypt, they did in colonial America, they do in modern Iran. The right of one person to voluntarily engage with another in the most intimate ways is an inborn human right, regardless whether some government recognizes, enforces, or violates it. The right might be violated (as in ancient Egypt, colonial America, and modern Iran), but that doesn’t mean people don’t have the right.

The question on the table in America has been whether the government should provide formal legal mechanisms to institutionalize and protect the natural right of gay people to marry, that is, whether to institutionalize civil marriage between gay or lesbian partners. Churches have been free to recognize as a marriage, before God and congregation, by that term or any other, the commitments of gay and lesbian partners. The question has been whether the government would recognize such a union as a legal marriage, with the accruing civil rights.

States Provide Civil Rights

In the United States, civil rights are codified primarily by the states. Contracts, wills, corporations, marriages, partnerships, custody, trusts, easements, titles, bequests, the right of a family member to challenge a will, the right of someone not to testify against a spouse, the right to appeal a judgment, the right of stockholders to review the finances of a corporation—all these are legal institutions that states create (or are supposed to create) to protect the inborn human rights of their citizens.

The Feds are supposed to oversee those creations to be sure (a) they do not violate anyone’s natural human rights and (b) they do not violate national principles of how civil rights should be codified and enforced.

If (a), in an effort to protect shareholders’ natural rights to cooperate, a state made it illegal for an employee to resign, the United States Supreme Court should rule that this civil machinery be changed. It would be violating a citizen’s natural human right to take on the work he or she chooses.

If (b) a state had laws that gave curly-haired people different protections than it gave straight-haired people, the U.S. Supreme Court should rule that those laws must be changed, because they would be violating the fundamental American civil principle that all citizens should be equal before the law.

The Constitution’s Big Imperfection

The Declaration of Independence of July 4, 1776 said the new country would take two doctrines for granted: everyone has natural rights and everyone should have those rights protected equally.

But here is the big problem: All that stuff about “created equal” and “endowed with inalienable rights” is in the Declaration but not in the Constitution. When a politician swears to uphold the Constitution, he or she is swearing primarily to procedural things like what to do if the President dies in office and when elections will be held. In the Constitution, the term “right” hardly appears (only once, in reference to the rights of authors and inventors).

And then there is the Bill of Rights. It’s a grab bag. It names some natural rights and some civil rights, but it mostly lists principles that civil rights must abide by. For example, a state can define all sorts of rights and procedures for how laws will be enforced, but—the federal Bill of Rights says—those laws cannot condone warrantless searches, excessive bail, or trial for the same crime twice.

The Constitution and the Bill of Rights are written as if everyone already knows what those “unalienable rights” listed in the Declaration are and already knows that the Constitution just presents procedures and boundaries by which those rights will be protected.

We often say, “Oh, that would be unconstitutional!” when we mean “Oh, that would violates people’s unalienable rights!” We should say, “Oh, that’s un-Declaration-al.” And it’s the Constitution, not the Declaration, that is the law of the land. The Constitution itself allows all sorts of violations of natural human rights.

That’s why slavery wasn’t unconstitutional.

The Thirteenth and Fourteenth Amendments

After the Civil War, two important amendments were made to the Constitution.

The thirteenth amendment names a natural unalienable human right: the right not to be a slave. “Neither slavery nor involuntary servitude . . . shall exist within the United States.” Finally, in 1865, a Declaration-of-Independence-like unalienable right gets explicitly called out in (an amendment to) the Constitution. But that remains about the only instance.

Now the next amendment, the fourteenth, is a big one, the one central to the Supreme Court’s gay-marriage case.

It includes these two super-important statements:

1. “nor shall any State deprive any person of life, liberty, or property, without due process of law;”
2. “nor deny to any person within its jurisdiction the equal protection of the laws.”

These are the so-called due process clause and equal protection clause.

The first seems plain and not to do very much. It turns out, however, to be a loaded constitutional landmine.

No State can “deprive any person of life, liberty, or property without due process of law.” The State can’t just kill people or lock them up or take their stuff without going through civil and legal procedures. Of course. But note “life, liberty, or property.” That sounds like the Declaration’s unalienable rights to “life, liberty, and the pursuit of happiness.” It sounds as if the Constitution and not just the Declaration, is saying or at least presuming that people have rights and the government is supposed to protect those rights with civil and legal procedures.

You might think the Constitution said that back when it was adopted in 1791, but it didn’t. Not until 1865.

And even then it’s ambiguous. What, alas, is meant by “liberty” here? What exactly are the liberties that the government is supposed to protect? Freedom from slavery is one. OK. Got that. Thirteenth amendment. What else?

The fourteenth amendment does not say. It just assumes readers know what those liberties are or at least know how to objectively determine what they are.

What Kind of Right to Gay Marriage?

Now we are getting to the problem of gay marriage.

In 1791, in 1865, even into the early 1900s, writers and readers of constitutional amendments really could assume it was generally accepted that people are born with rights and the government creates legal procedures—including civil rights—in order to protect those inborn rights. But somewhere along the line, this basic idea got mangled.

Many Americans, including—remarkably—most politicians, have lost the ability to distinguish natural rights and civil rights. They think all rights are granted by governments. They don’t think any are universal, timeless, acquired by mere birth, inborn, natural, unalienable. Or, if they think some are, they wrongly think of what are in fact civil rights, such as the right to vote. A right to vote cannot be an inborn right; it cannot exist without a democracy. If an ancient Egyptian and a medieval serf did not have it, then it cannot be an inborn right. If there are inborn rights, right to vote isn’t one of them.

So here is what now happens. A clear distinction between natural and civil rights is rare, but Americans have a sense that some rights are really, really important. They are “fundamental” in some way. These, courts argue, are what must be meant by “liberty” in that due process clause of the fourteenth amendment.

So now courts go looking for “fundamental rights,” but based on all sorts of subjective standards. The Constitution offers no objective ones.

In the recent gay marriage case, the majority reasoned that gay and lesbian individuals should be at liberty to marry because doing so enabled them to express their identities, they would be able to participate in the nobility and sacred tradition of marriage, their children would not feel shame at having unmarried parents, and the like.

The dissenting Justices said, basically, “OMG! Where did you ever get those standards? Doing things that way, there is no end to the ‘liberties’ we could find in the fourteenth amendment!” Already gun enthusiasts are saying, “Hey, we can meet those standards! Toting a gun allows me to express my identity! Damn right!”

How the Supreme Court Should Have Argued

The Constitution is a flawed document. It simply does not explicitly say that citizens have inborn human rights that the government is tasked with protecting. That can be taken only as an implied premise buried in an amendment of 1865 and even there, only if you can extract what human rights are implied by the concept “liberty.” Except for saying that slavery is unallowed, the US Constitution simply does not explicitly rule out violations of inborn human rights. And where it does so implicitly, it offers no objective criteria for identifying what those rights are. That’s the way it is. We are stuck with that.

Still, even if the Constitution does a crummy job articulating a difference between and the relation between natural and civil rights, the Supreme Court Justices should be able to do a good job. In this gay-marriage case, they should have argued much differently. They should have argued for gay marriage not on grounds of due process but on grounds of equal protection.

The majority then might have been much larger, since the main complaint of the dissenters was the thoroughly subjective way the majority pulled a right to marriage out of that due process clause.

Recall those two important clauses in the fourteenth amendment:

1. “nor shall any State deprive any person of life, liberty, or property, without due process of law;”
2. “nor deny to any person within its jurisdiction the equal protection of the laws.”

The Justices should have zipped right through the due process clause and appealed to equal protection.

They should have said: We do not need to do back flips to justify a right to marry. Let’s just recognize that if there is such a right, it is an inborn natural human one. We don’t need to justify it with any reference to how children of gay couples will feel or about whether gay partnerships are good for society. In fact, we don’t need any reference at all to hetero- or homosexuality. All we need to ask is whether people (any people) have a natural right to make the intimate commitments of marriage and whether it is proper for a state to protect that right by maintaining the institution of civil marriage. (They do and it does.)

In other words, unless the Court wants to hold that marriage is not an inborn human right properly protected by the artificial institution of civil marriage, then the Court should just move past the due process clause and ask whether the equal protection clause is satisfied.

Then things get easier. If it is proper for a state to protect the inborn rights of two people by using the civil institution of marriage then that protection should be equally extended whether the two people are short and tall, dark skinned and light, nasty and nice, straight and gay.

It would be just as wrong to limit, based on personal characteristics, the protections of inborn individual rights, provided by the institution of civil marriage, as to limit the protections provided by wills, trusts, corporations, or contracts.

The Supreme Court’s judgment against bans on gay marriage should have looked like the unanimous 1967 judgment against bans on inter-racial marriage—a few short pages that appeal primarily to the equal protection clause. Unless the whole concept of civil marriages was being challenged, the Court should not have looked so hard inside the due process clause to find a right for gay and lesbian individuals to marry.

In fact, the whole thing should have been settled in 1972, when the Supreme Court was first asked to apply the interracial marriage argument to gay marriage—and refused to take the case.

The Civil Institution of Marriage

In the recent Supreme Court ruling, all that waxing eloquent about the nobility of marriage just did not belong there (as the dissenters were right to say). But on the other side, Justice Thomas’s railing against gay marriage because it confers some positive benefit was, for example, equally out of place.

Both sides fail to keep central the distinction between human rights and the civil instututions we invent to protect those rights.

Civil marriage is not a hand-out, as Thomas casts it, or an institution that has to be defended on grounds of sanctity, tradition, or social benefit, as the majority spent so many pages arguing. Maybe it gets misused and abused, maybe marital status gets written into laws where it does not belong, but the institution of civil marriage itself is something very simple. It is a vehicle for protecting citizens’ inborn natural human rights to form certain kinds of relationships. In that regard it is no different from contracts, wills, leases, adoptions, corporations, and countless other legal mechanisms codified by states and subject to federal review.

Marriage may be something more exalted than that but the civil institution is pretty mundane. If the difference between the two were strongly maintained, human rights better appreciated, and the role of civil rights better understood, it wouldn’t take ninety-eight pages for Supreme Court Justices to argue about bans on gay civil marriages. It could be done in a few paragraphs as a straightforward application of principles articulated in the Declaration of Independence.

May those principles be rediscovered. Happy Independence Day.