Don’t miss Adam MacLeod’s response, “There Is a Fundamental Right to Marriage, and We Must Preserve It.”
Few commentators on either side of the ongoing marriage debate would deny that individuals possess a fundamental right to marry. To do so seems ridiculous today. Marital relationships are, as the Supreme Court first affirmed in Meyer v. Nebraska (1923)—albeit in obiter dictum, an aside unnecessary to the decision of the case—an important part of the happiness that individuals have a natural right to pursue.
It may be a surprise to modern Americans to realize that the Meyer case represents the first notable appearance of the “right to marry” language in the American political tradition or its antecedents in liberal political philosophy. It played almost no role in the Civil Rights Movement beyond its invocation by Chief Justice Earl Warren in the 1967 case of Loving v. Virginia (neither King nor Malcolm X made mention of such a right to my knowledge), it was entirely absent from the anti-slavery movement (Lincoln’s Republican Party was formed, in fact, with the twin policy goals of ending slavery and outlawing polygamy), and it was similarly absent from the revolutionary conflict with Great Britain.
The idea of a fundamental right to marry—not just someone of the same sex, but anyone at all—is a relatively new one. Among those who didn’t think anyone—not just homosexuals, but heterosexuals as well—possessed such a right are John Locke, Thomas Jefferson, James Madison, and Abraham Lincoln, to name only a prominent few. Why not? Didn’t they see the enormous importance of marriage to individuals and society? And if this is the case, don’t people have a right to it?
Invoking Rights in Public Discourse
There is a momentous difference between affirming something as a good for an individual or a community and claiming possession of this good as a fundamental, natural, or human right. Such rights follow from the fact of individuals’ self-ownership or human dignity and not from their desires, however legitimate these might be. I want to stay alive, and I also want a million dollars. These are both legitimate desires, but only the former involves a fundamental right.
There are innumerable good things to which no one has a fundamental right: world peace, tropical beaches, lollipops, and so on. To claim a fundamental right is to attach a special moral urgency to a particular good thing that is in danger of being taken away. Locke’s famous triad of “life, liberty, and property” provides the best example of such things. And the moral urgency that is attached to these good things does not derive merely from our desire for them—otherwise, why doesn’t our desire for other good things include a similar urgency?
We possess fundamental rights to things such as life, liberty, and property because these things are intimately connected with our self-ownership. As Locke helpfully explains, we own property in external objects because we own our free actions of appropriating them, and we own our free actions because we own ourselves. For Locke—as well as for the American founders and Lincoln—this was as far as our fundamental rights went.
It was from this philosophical lineage that the language of fundamental, natural, or human rights derived its enormous power in political discourse. People have always had intense desires for their lives, liberties, and property—but now these bare desires put on the robes of natural justice and eternal decree. Because of this, fundamental rights are inalienable and non-negotiable; they don’t enter into political discussions, they dictate public policy. According to Locke, their protection is not just one of many important considerations for government—it is the very purpose of any legitimate government. Governments don’t create these rights, they find them already there. Fundamental rights are the “trump cards” of moral and political discourse, foreclosing further debate and discussion.
Locke, along with the American political tradition, is correct to affirm the existence and importance of these fundamental rights. Because these rights are not only due to individuals as a matter of justice but also desired by individuals as important goods, however, it has always been easy for people to confuse fundamental rights with intensely desired goods—and thus wrongly to invest the latter with the moral urgency and primacy of the former. This is a serious mistake, and it is one that clearly has been made in the case of the “fundamental right to marry.”
The Idea of a Right to Marry
Marriage is a good thing; both sides of current debates seem to agree on this. But does anyone have a fundamental right to it? To understand why no one—heterosexual, homosexual, or otherwise—has a right to marriage, let’s look again at the list I provided above of good things no one has a right to.
The last two—tropical beaches and lollipops—might in fact be the objects of someone’s fundamental right if one happens to have a legitimate property claim to them. The first, however—world peace—is not the sort of thing any individual can have a fundamental right to, simply because it doesn’t pertain to any individual at all. Peace is something that exists between individuals, not within or attached to any of them. Claiming a right to peace is a straightforward category mistake, like stating that the color blue is five feet long.
Marriage is exactly like peace in this regard: it pertains to a relationship between individuals rather than to any individual in particular. Dennis Rodman’s famous attempt notwithstanding, I simply can’t get married; only we can. Even if you want to marry me and I want to marry you, not only does neither of us have a fundamental right to marry the other, but neither of us even can do so by himself. This ability lies only in both of us, because marriage attaches to our relationship, which occurs between the parties to it rather than within either of them.
This is not to say that marriage (or peace, for that matter) doesn’t significantly affect individuals. Obviously, it does. But “fundamental” rights—unlike constitutional rights or legal rights—derive from the self-ownership or human dignity of individuals and therefore can only pertain to individuals. One may argue that couples, or groups of individuals, possess such fundamental rights, but this would necessarily entail the construction of an entirely different line of argument than the one running through the American political tradition and extending ultimately to John Locke’s political philosophy. This would be a truly momentous—and, to my mind, impossible—task.
The Court and the Right to Marry
The Supreme Court has been gravely mistaken in affirming the existence of a fundamental right to marry since Meyer. No such right exists for anyone—straight or gay. From a constitutional perspective, the Court has located this right within the Fourteenth Amendment’s due process clause, which attributes to “persons” the rights to “life,” “liberty,” and “property.” In this clause, the Fourteenth Amendment intriguingly bypasses Jefferson’s elaboration (“life, liberty, and the pursuit of happiness”) and harks all the way back to Locke’s initial formulation.
As I’ve argued, attributing a fundamental right to marry to any “person”—such as those mentioned in the Fourteenth Amendment—is the result of a simple category mistake. Marriage cannot be included within the Fourteenth Amendment’s idea of liberty, because it is not a possible object of individual action at all, only of joint action with another. Luckily for the Court, the fundamental right to marry is of fairly recent origin in precedent and the American political tradition. Disavowing the existence of such a right will not bring back anti-miscegenation laws; it will only assist in aligning the Court’s interpretation of the Constitution more fully with the important truths from which constitutional rights derive.