IS MARRIAGE A RIGHT? Mark Barton

[Eve writes: My introduction of this topic is in bold. Mark is in plain text. I should note that my intro post is meant to throw out ideas for debate, leading all of us to clarify our positions--it's not meant as my main statement on the question!]

Is marriage a right?

In and of itself, civil marriage isn't a right. If voters preferred, it would be perfectly fine, morally and legally, for the government not to
create the institution in the first place. No one would be able to marry, but no one would have their rights violated.

If so, what kind of right is it?

Once some sort of institution of civil marriage has been created, I think a universal right to it of sorts is created as a corollary of fairness
(in the moral domain) or the right to equal protection under the law (in the legal domain).

Eve is puzzled by the different ways this is spoken of. I suggest that's because (i) there really is a cluster of rights based on the different criteria that might conceivably be used to restrict access, and (ii) not all the rights are of the same force.

There's a moral right of sorts to not be arbitrarily prevented from marrying on the basis of age, but it's a weak right that can reasonably be overridden for the sake of even modest goals, and it doesn't translate to a legal (constitutional) right at all. However, as we consider criteria closer to the suspect classes of race and the like, the government
needs to meet a higher and higher moral burden of proof, and at some point may well have to meet a legal burden of proof.

2) If there is a right to marry the person you love (barring nonconsensual situations), prohibitions on incestuous marriage would appear to violate that right.

Here Eve seems puzzled that people would insist on such a right when there's such an obvious case where it's not respected. But it's only a puzzle from a perspective of absolutism. All we have is a right of moderate force being trumped by an even more weighty consideration (preventing the likely birth of deformed children or whatever). It's like saying there's no right to free speech because you can't yell "Fire!" in a crowded theatre if there's no fire. In absolute terms, indeed there is no right to free speech. In terms of weights, there's a very weighty right to free speech which is allowed to trump anything except "clear and present danger."

Of course, the proposed right to marry the person you love will only ever be a right in the moral domain. The law does not concern itself with whether a husband and wife love each other, nor is anyone proposing that it should. At the same time, the moral discussion informs the legal one. A big part of the motivation for present law is a presumption that husband and wife do love each other, that that is a large part of the point of their getting married, and that the willingness to sign up for something that includes non-trivial responsibilities is an adequate proxy for that love. So independent of whether there's a legal argument from equal protection for extending marriage to same-sex couples, there's a moral argument from fairness. Now perhaps the argument is trumped by some consideration of the highest priority, but given the centrality of marriage to the lives of straight people, it's prima facie a fairly weighty argument.

3) Is there a right to marry the only kind of person you could desire sexually? That seems to be the definition that SSM proponents are implying, with, again, the obvious bars to nonconsensual relationships. What this is, then, is a right to societal honor and special treatment for a relationship with the only kind of person you could desire sexually. (And yes--I realize homosexual relationships aren't "just about sex"--but if we're not talking about sex then again, everyone already has the relevant right to marry, since presumably all of us can care for and be committed to members of the opposite sex.)

Eve seems puzzled that SSM advocates seem to be talking about something which is neither all about "love" or all about sex. But where's the problem? The bond in a conventional marriage is, ideally, a rich mix of sex, romance, "love," friendship, jealousy, duty, and other factors. Each single element has precedents elsewhere, but the combination is
recognized as distinctive. Moreover the combination is recognized to be, typically, stronger than most other relationships, including nearly all plain friendships. The relationships of the same-sex couples lined up for marriage licenses are based on exactly the same mixture, based on the same instincts and
the same dynamics, just with the relative sex reversed.

The relevant moral right is then best described as the right to marry any person that you're in a psychologically marriage-like relationship
with. The matching legal right is the right to marry a person of arbitrary sex. The law will continue to take being prepared to sign up for the responsibilities as a proxy for the right sort of relationship.
posted by Eve at 2:14 PM | link

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