Sunday, July 08, 2018

Same-Sex Marriage Is Not About "Rights"

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Sailing on The Badger across Lake Michigan

I want to discuss this civilly. May I? 

The same-sex marriage issue is not about “rights.” It’s about the definition of “marriage.” The definition of “marriage” settles the matter of “rights.”

For example, I am the “owner” of a car. I have ownership rights. I have the right to a key to this car, the right to put the key in the ignition and turn the car on, and the right to drive the car. This legal fact (I am the car’s owner, you are not) means you cannot complain that you are excluded from some “right”; viz., the right to drive my car. All this is implied in the definition of “ownership.” If you wanted free access to the cars of other people then you would need to revise the legal definition of “ownership.” But as it currently stands driving other people’s cars without permission is called “theft.”

I do not have the right to drive my car wherever I please. I do not have the right to drive on your lawn, for example, or through your patio door. Should I complain that you or the state are “taking away my right to drive on your lawn” you should reply that no “rights” are, in this case, being taken from me. Legally, there is no existing “right” that I possess that is being taken from me. Legally, I am being denied nothing.

Laws involve definitions. Definitions create parameters. Parameters delineate “rights.” I do not legally have the right to enter your house at night, wake up your children, tell them to put their clothes on, and come shopping with me. How absurd it would be for me to complain that I cannot do this, and argue that some “right” has been taken from me.

In order to civilly discuss issues of marriage, the term “marriage” must be defined from the beginning, elsewise the discussion will go nowhere. If you and I are working off different definitions of “marriage” we will be involved in constant dual equivocation, with me using the term in one sense, and you in another.

This is why the real, primal matter in the same-sex “debate” is over the definition of “marriage.” Those arguing for the legality of same-sex marriages are revising the existing definition of marriage (which, BTW, they have the legal right to propose). We now have two competing definitions. Which are:

Traditional Definition (TD):
Marriage is intrinsically a sexual union of husband and wife, because these are the only unions that can make new life and connect those children in love to their co-creators, their mother and their father (from Maggie Gallagher, in Corvino and Gallagher, Debating Same-Sex Marriage(Point/Counterpoint), p. 95. Oxford University Press.).

Revisionist Definition (RD):
Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy the partners both find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear. (Ib., p. 99)

If RD is received as law, then of course, ipso facto, gays have a legal right to marry. If TD remains as law, then gays do not have a legal right to marry. And in this case no “rights” are being denied to gays, since by legal definition gays would not have the right to marry.

It is important to understand this. If the core issue is over the legal definition of marriage, then statements like “marriage rights should be extended to gays” and “gays deserve marriage equality” are only euphemisms used to spin an argument in one’s favor. Given TD to say "marriage rights should be extended to gays" is like saying "ownership rights should be extended to all people" (so that my car and your car is our car), or like saying "the right to be called "fish" should be extended to Scandinavians." (I am Scandinavian, and have never felt denied of some right because I cannot identify myself as a fish on my passport.)

“Rights” and “equality” talk is, initially, irrelevant; legal definitional talk is what matters. “Rights” and “equality” are pursuant to legality. Legal definitions, whether of “marriage” or “ownership” or “legal guardianship” or whatever, determine and delineate “rights” and “equality,” not the other way around.

BTW – I’ve talked with a few people who think the state should not be involved in the issue of defining marriage. I think that is incorrect. If we lived in a perfect world then laws would not be needed. Laws protect; marriage laws (especially TD) protect children’s rights, and spouse’s rights. And just because a father or mother are Christians does not mean (though it should mean) that their children are protected.

For further study see especially:

Girgis, Anderson, and George, What Is Marriage?