Asking the Wrong Question

Yesterday, I posted about Roy Moore and Alabama’s resistance to same-sex marriage, and a commenter took the federal courts to task, asserting that they’d exceeded their authority by invalidating “the will of the people.”

The evidence of over-reach? Nowhere does the Constitution talk about same-sex marriage.

This is an argument that makes my head explode, because it betrays one of the most fundamental misunderstandings of our legal system.

Of course there’s nothing in the Constitution about same-sex marriage. There’s nothing in it about any kind of marriage. Or about the right to travel, or practice a profession, or numerous other rights it protects. That’s because the Constitution is not the source of our rights.

The Founders were persuaded by Enlightenment philosophers like Hobbes and Locke that humans are born with “natural rights.” We have those rights by virtue of being human (or, if you are religious, because we were “endowed” with them by a creator). The job of government, according to Hobbes, was to protect those natural rights and our individual liberty; Locke agreed, writing that government needed to be limited so that state power would not be used to infringe our natural rights and liberties.

The Bill of Rights doesn’t grant rights; it limits government. Even when that government is expressing “the will of the people”–or as the Founder’s might have put it, the “passions of the majority.”

If someone wants to argue that there is no “natural right” to choose your own marriage partner–that the right to live your life in accordance with your own conception of morality and with fidelity to your deepest identity is not a human right–I’ll disagree strongly, but that would be the appropriate argument.

Triumphant declarations that you read the text of the Constitution and didn’t find a “right”  to same-sex marriage simply tells the world that you are profoundly ignorant of the purpose of our Constitution and the theory of government upon which it was based.


  1. This commentary is excellent, Sheila. I’m going to re-post in hopes that others will read it, too.

  2. Sometimes I have trouble distinguishing between what schools never taught me and I figured out later, and what I was taught, forgot, and later remembered.

    I don’t remember being taught that the Constitution is the bylaws of government. The rules government has to follow.

    Such a profound, elegant concept that so clarifies its role in America.

  3. The 9th Amendment shows the founding fathers foresaw these types of specious arguments also. It clearly states that the Bill of Rights is not an exclusive list, and that people may justly claim other rights.

  4. Right wingers are big on the concept of “MY rights” and contemptuous on the thought of “YOUR rights.”

    As in economics, they are takers, and takers only.

  5. Thank you, Sheila, for an enlightening and educational post. I never had the benefit of a civics class that explained the elements of the Bill of Rights or the Constitution and its amendments as eloquently and understandable as you have done.

  6. “That’s because the Constitution is not the source of our rights.”

    Careful with that. Your buddy Doug Masson really, really, really, really, really hates the idea of natural rights. There’s a large contingent of people in Indiana who really, really, really hate natural law. They think all rights are enumerated in a document and without mention, there is no more. They believe the government is supreme and that nothing outside the government can bind the government.

    If the Constitution isn’t the source of rights, well, the statist folks have to worry about all manner of ideological attacks and threats of nullification. They don’t like that. You can’t have co-kings, after all.

    “If someone wants to argue that there is no “natural right” to choose your own marriage partner–that the right to live your life in accordance with your own conception of morality and with fidelity to your deepest identity is not a human right–I’ll disagree strongly, but that would be the appropriate argument.”

    Ms. Kennedy, the first argument on the table isn’t that one doesn’t have a right to choose a marriage partner. Presenting it as such is premature. The first argument we’re asked to consider is whether any two people who want to call themselves legally married have the right to impose legal recognition of the union. It’s the affirmative statement of this right that requires work by the gay marriage legal advocates or natural law proponents of gay marriage.

    You’ve also been a bit hasty. You’ve conflated cohabitation and marriage. The two are distinct concepts. People of all genders can freely cohabit. I am eagerly waiting on the natural law argument that holds that any two people are entitled to be married.

    The right to cohabit is easily found in natural law. It’s a consensual act that requires nothing of anyone else for you to do it. For homosexuals to be married by a willing church comports with natural law, as all parties to the event are consensual, and the act imposes no costs on others. Homosexuals can hold wedding anniversary parties with the full authority of natural law. Legal marriage, however, does not stand on the same footing. Legal Marriage is created by law and can be whatever the law says.

    What gay marriage advocates are demanding is that they have a natural law right to a legal definition. That’s tricky. Governments are allowed to draw lines. Who can run for office, who can have a sidewalk cafe, who can be a taxi driver, who can open a daycare, who can be a physician, who can fly a plane are all matters the government defines and regulates. I have not yet heard gay marriage advocates demanding the government has no ability to license any form of marriage. The silence on this matter is troubling and points to a deep weakness in the argument.

    If a government has no ability to draw lines around something, it has no legal authority to license it, and the former “license” merely becomes a tax. Can a fundamental right be taxed? Can government impose a tax on attending church? If homosexuals may marry, what valid line can still be drawn around marriage?

    If the state created “marriage” for heterosexual couples and “pairrage” for homosexual couples, and the two licenses had exactly the same force of law and legal obligation of respect, would the gay marriage advocates have a natural law argument to suppress pairrage?

    Again, I am waiting on the natural law argument that one is entitled to a legal definition.

  7. The founding fathers, being intelligent men, assumed these rights would be understood and protected by intelligent leaders; no way could they foresee what we have dealt with the past few decades. Their wise words being distorted, misinterpreted, twisted and turned against us in the most private areas of our lives. I doubt they considered the possibility of having this government usurp our thinking and decision making and create legal ways to deprive us of our basic civil and human rights.

  8. To complete the above point, in absence of a constitutional or natural law right to a legal definition* or in absence of a constitutional amendment establishing gay marriage as the law of the 50 states, there is not much of an argument that gay marriage is found in the Constitution.

    The best way to settle this question is by proposing an amendment. The Supreme Court is not a constitutional convention.

    *The Supreme Court has never accepted the idea that the entire body of natural law has been incorporated into the Constitution and that one has a legal right to do anything found within the natural law.

  9. Whoa, “What gay marriage advocates are demanding is that they have a natural law right to a legal definition.” That’s certainly one way to put it.

    Another way to put it is what folks who love same sex people are demanding is not to be discrinated against compared to folks who love different sex people.

    In other words is sexual orientation a legal standard that can be used in applying the law differently?

  10. Whoa. The laws you speak of are created and can be abandoned or amended, for sure. And they do proscribe who can open a restaurant or drive a bus. Where you err is negating the simple fact that qualifying for theses licenses is a movable, attainable target. If I want to become a plumber by 2020, I can. And the state would then license me. It has been shown that sexual orientation is not so easily manipulated. That is where discrimination enters the game and that is the violation.

  11. Earl,

    “That is where discrimination enters the game and that is the violation.”

    Nonsense. Innumerable forms of discrimination are perfectly legal. Every law on the books and every state and federal regulation is a form of discrimination.

    “Where you err is negating the simple fact that qualifying for theses licenses is a movable, attainable target.”

    No, they’re not. Unless you’re IQ is sufficiently high, you can never become a physician. Unless your eyesight is sufficiently good and your health is sufficiently sound, you can never become a pilot.

    Just hollering “discrimination” isn’t going to get it. Governments have long been permitted to draw lines. As I detailed, there is no constitutionally guaranteed right at issue here.

    Why the reluctance to get an amendment? The Constitution prefers amendments to giving all legislative and executive power in the country to five persons.

  12. Whoa, That is an interesting and well thought out argument. I’m curious how it would apply when argued in the framework of the equal protection clause.

  13. Natural rights are a useful concept but are not like science theories that are supported by irrefutable evidence. They are really a cultural presumption about how power should be shared. The Magna Carta for instance was the opinion of the nobles of their power vs the king’s.

    Our culture has its opinion about civil rights. What are and aren’t legitimate reasons to discriminate. The addition of not by reason of sexual preference is just one whose time has come.

  14. “Our culture has its opinion about civil rights. What are and aren’t legitimate reasons to discriminate. ”

    Yippee, that’s great, but five people passing the fashion of the day into law is not our system of government.

  15. I find it unlikely that I would ever be in direct competition with a blind man for bus driver license.

  16. Natural rights arguments are an absolute waste of time — even worse than a waste of time because they do nothing other than create divisions. When Jefferson wrote of natural rights in the Declaration of Independence, he did so to justify a decision by the colonies to “dissolve the political bands” that connected the colonies to England — in other words it was a declaration of war against the crown. If your goal is to divide the country — arguing natural law is a great way to do it.

    When it came time to forge a nation by writing the Constitution, they did not rely on natural law arguments. You are correct that the Bill of Rights places limits on government’s authority, but where does that authority come from? It was created by the original Constitution. More to the point, the source of the government’s authority is set forth in the very first words of the Constitution: “We, the people of the United States. . .” The people granted power to the government in the original Constitution by granting their collective consent to be governed, and they then limited that power through the Bill of Rights by narrowing the scope of that collective consent. Natural rights has nothing to do with it.

    And as for your position that those arguing against same-sex marriage must base their argument on natural law — Great. You have your wish. That’s precisely what Alabama Chief Justice Roy Moore does. Now, in order to win your argument, you have to persuade him that he’s wrong about natural law. Good luck with that.

  17. Good spot on the link, Mr. Smith.

    I earlier mentioned Doug Masson. People of his stripe are superpowerists. They believe in a very strong central government. having a large, undivided, powerful nation is preeminent to them.

    When Chief Justice Moore says “that if the Supreme Court rules in favor of same-sex marriage, he wouldn’t be “bound” by the ruling,” the superpowerists have a real worry. Some of them may want gay marriage, but what they want above all is a strong national government ruling over a very large country.

    Gay marriage is simply flat-out intolerable to many states. Would these states, most of the country, actually, consider carving out a conservative or family-focused rump state, rather than live in intolerable immorality? It’s a risk. Are the superpowerists willing to go this far?

    Also lurking are the real gamesmen, the folks on Kissinger’s speed dial. These guys are making worldwide moves with the weight of the United States behind them. Does Kissinger care more about gay marriage in Salinas or global stability? Can he make the same moves if America is no longer a united 50 states?

    As I mentioned earlier, if the Supreme Court imposes gay marriage on the country, the federalist system is effectively dead. Gay marriage is simply not in the Constitution nor illuminated by any of its rays. Finding gay marriage in the Constitution will simply be a work of fiction, an act of will, fiat legislation, and it will permanently cost the Supreme Court its credibility and legitimacy. One branch of government will have usurped all the power granted to the Congress, the President, the states and the People and will be an unaccountable and unchecked branch of government passing its will into law.

    Nobody from Kansas is invading Vermont to compel Vermont to drop it’s gay marriage law, but the coastal people are invading Kansas.

    Gay marriage being imposed on the entire country without the assent of the popular will is taking a very serious risk.

  18. Whoa: Gay marriage is NOT being imposed on anyone, anywhere in this country any more than opposite sex marriage is imposed on anyone, anywhere in this country. Asking for, demanding their right to live their lives freely as do all married people, and single people, and black people, and brown people, and yellow people, and male people and female people – and let us not forget those red people who are still disenfranchised in this, their native land. While we are at it; let us not forget that women in this country are still fighting for their/our rights – in many cases, fighting to regain lost ground. We have not lost our impetus or our dignity fighting this battle; it is primarily the men in control of government on all levels who appear to be heartless, mindless control freaks seeking to maintain power and control over we “cheaper cuts of meat” as we were recently called. Same sex marriage partners face the same day-to-day struggle to maintain their jobs, homes, children, health, pay the bills, mow their lawns, get cars repaired, and to be allowed to do this in peace as is their civil and human right.

  19. Ms. Green:

    I see you’re deeply concerned with this issue.

    Everything in your comment seeks a political remedy, but Ms. Kennedy opened a legal discussion. You obviously strongly believe in your position, and you must grant that there are others on the opposite side who strongly believe in their position.

    When groups in America have differing ideas, they send forth a legislature to determine what the policy of the country will be. The legislature then sends its proposed law for the review of the executive to see if the executive is willing to enforce the law. There is an elaborate process by which policy becomes law, yet we’re seeing a loud hue and cry for five unelected, unaccountable, unchecked people to pass a law and impose it on the entire country, circumventing the entire lawmaking process.

    So much of current discussion has one side smugly and insultingly presuming it is correct and demanding that the Supreme Court impose the purported correct political position on the entire country. The Supreme Court, however, must be cautious in its autocracy.

    The Supreme Court only rules on what is law, not what should be law.

    Do this the right way; pass an amendment. If you’re not willing to do that, then let Vermont be Vermont and Kansas be Kansas.

  20. If we look at this in human terms, stepping outside of arcane legal/ political arguments, the bias against gay couples having the same FUNDAMENTAL right to marry is rooted entirely in religious dogma. The day anyone can show us that there really are compelling, rational reasons to deny marriage to these folks will never come. Comparisons with polygamy and marrying animals are ridiculous. I know several long term gay couples that have better and more virtuous relationships than most of my heterosexual friends, so I see this as a major violation of separation of church and state and a clear case of manifest ignorance. “The People” do not have the right to decide everything.

  21. I do not believe that same-sex marriage is being forced on people. What is happening is that people’s concepts about what constitutes marriage are in conflict. Decades ago, people who opposed interracial marriage experienced the same sort of upheaval. The will of the people doesn’t prevail in our nation. As Sheila has said before, the will of the majority cannot make her worship in the Episcopal Church.

    I will say this, however. As a lawyer who earns part of his living handling divorces, I am quite upset. Opponents of same-sex marriage have claimed that allowing same-sex marriage threatens “traditional” marriage. Same-sex marriage has been legal in Indiana for how many months now? And yet I haven’t seen any increase in divorces as a result. (Yes, that was a snarky comment.)

  22. Snark away, Bill. I have said since this ridiculous fight began that heterosexuals have done little to promote the institution of marriage. I suppose some of the same-sex marriages will lead to divorce; it seems to be human nature. Will the rules be different?

    Here is a personal legal question; I know a couple who married in Illinois, 8 months later they were legally married here in Indiana. If they break up; will it require two divorces due to being married in two different states? This is NOT an issue, just my nosey nature regarding a family member. My family laughs at this question but…having worked in the Municipal Court Probation Department and for two attorneys, I know the law is quirky to say the least.

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