IS MARRIAGE A RIGHT? George McAllister

I think that there are two questions contained in the one, the first simple to answer, the second not so much. First, is marriage, in fact, a legal right? This is the easy one. Then, is marriage a right on some grander scale, a "natural right," "moral right," etc.? This is the hard one, and in fact I'm not even going to approach it because I am, philosophically, uncomfortable with rights talk. I nonetheless have something to say about it, but let's take the questions in order.

First, there clearly is a legal right to marriage. The case law is, as usual, long and dull, but you can Lexis-ize 52 Am Jur 2d MARRIAGE 3 for a mercifully brief overview. It is clearly a right to marry the person you want to (not just a generic marriage right), and polygamy is excluded. Easy as can be, though with some creative lawyering it could certainly go either way in actual practice.

But what about the more general right? I said I'm not comfortable with rights talk, so I won't argue about whether a general right to marriage exists or not. I do think, however, that once the legal institution of marriage has been created, it is possible and useful to apply other rights to it--so we can ask, for example, what implications the right to privacy has for the government's control over marriage, or the more vaguely defined right not to be discriminated against on the basis of sex, race, and so on. That's obviously a whole 'nother question, though, so I leave it for some other time.
posted by Eve at 5:55 PM | Link |

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