Continuing the marriage debate (which I'm not always as quick to respond to as I intend to be!), comes this post from
Carey Cuprisin, who accurately notes that while I don't think SSM is a right, I do believe marriage is. Carey's question is, why? How can we justify marriage being a right in the first place? It's a fair question. But I think you have to start with the presumption, at least, that some rights do exist outside the state (like Jefferson's "inalienable" life and liberty). And if you accept that there are these types of fundamental rights, then I think it's undeniable that marriage has to be one.
We could start with how the Supreme Court assesses fundamental rights for purposes of constitutional analysis. I'm not a big fan of tests like this, but I think it is generally accurate in looking at the rights our country values and protects. The test for fundamental rights, from
Moore v. City of East Cleveland,
Meyer v. Nebraska, and others, is whether something is "deeply rooted in the Nation's history and tradition" and "essential to the orderly pursuit of happiness" or "implicit in the concept of ordered liberty." Marriage is all of these, as the Court has acknowledged many times and as is easy enough to demonstrate. Marriage has existed since before our country existed, but certainly from the time it has. The vast majority of people marry at some point in their lives, and marriage is and always has been a central feature of our culture and our lives, at common law and today. It's the institution by which we bring together the sexes, socially and privately legitimize their union, and socialize and educate our children. For the state to inhibit this liberty beyond certain rational bounds (like being a certain age or not being too closely related) would be to disrupt an institution central to our society and would seem to be beyond its legitimate power. Marriage is also an essential part of our system of "ordered liberty." Having a stable family, with married couples generally raising their own children, isn't sufficient to keep order in society but it is of great importance. For some indication of that, look at how the modern breakdown of our marriage culture -- with no-fault divorce and widespread cultural acceptance of nonmarital sex -- has led to a corresponding breakdown in many aspects of our society today -- higher poverty, illegitimacy, and incarceration rates, lower education levels, worse public health indicators, and so forth.
One can also see why marriage is a right from other ways of looking at the matter. I briefly
alluded to some in my previous post, though Carey attempts to debunk them; I respond to his comments now. The definitional starting point: Carey dismisses this by saying, "This is simply arbitrary. Definitions are (by definition?) always capable of being contested. Grounding a right 'anterior to the state' (whatever that might mean) in a definition just begs the question of whose definition we should privilege. Irish law wants to privilege hers. But she still has to explain why we should . . . " This is
one approach to language, yes:
'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'
Certainly the courts have taken this approach of late: we don't prefer the meaning of the word, and we have power, so we henceforth construe "marriage" to mean something other than it does. But I disagree that the understanding of "marriage" to mean the union of one man and one woman is simply arbitrary. Were it so, why wouldn't we see a great diversity around the world and in history where "marriage" meant all sorts of different unions or various arrangements? If something were arbitrary we might expect that people haven't come to the
same arbitrary conclusion almost invariably. But "marriage" just about always and everywhere has centered on: the union of a man and a woman. And as it's grounded in biological, emotional and social realities, it is reasonable and nonarbitrary. But Carey's right that a definition of course isn't sufficient in itself to justify something being a right. So that leads to a discussion of other factors: history and biology.
Carey asks, in response to the point that marriage in almost every society in history and around the world has been between men and women: "Must all rights depend on an unbroken historical practice of the recognition of these rights? I hope not." No, of course not; just because something's always been done a certain way doesn't mean, ipso facto, it always should be. Slavery has always existed in the world, and it's wrong. Women couldn't always vote in this country, and that was wrong. We can evaluate tradition with reason and see by it that tradition may have been wrong, and we can determine by reason that sometimes even if a right has not existed before, we would like to recognize it now. But tradition can help establish the existence or validity of a right. Our society has always organized itself around the family, at the center of which is a husband and wife and their children. "Family" is often broader than this, of course, but the nuclear family is the core. This helps suggest the ability to form a union in this way is something that is a right, that the state can't unduly interfere with.
Carey points out, correctly, that we don't need marriage to have children: "All procreation requires is the right to f*** each other. With today's in-vitro fertilization technologies, it might not even require that." O brave new world! Yes, we have done an excellent job of separating sex from procreation, and marriage from sex and procreation, in our culture, but these are destructive actions (for individuals and society) and actually go to show why marriage is needed and why it is a right that must be protected. I do think that the need to have children to continue our society helps establish the right to marriage. We could know just from thousands of years of experience, but also from excellent social science data compiled over the past half-century, that children do best when raised by their natural, married mother and father. They're less likely to live in poverty, end up in prison, drop out of school, be physically abused, have children out of wedlock themselves. This holds even where children live with their natural parents who are just cohabitating. Of course it's not true in
every instance -- families with married parents can live in poverty, or suffer abuse, and single parent families can raise great, well-adjusted kids. And of course some circumstances which lead to single or nonmarital parenting (like death, or divorce because of abuse) are beyond our control. But empirically speaking, children do best with their own married mother and father. When children do better, that helps us have a healthier society that is more likely to be sustained and to thrive. The fact that it is marriage that facilitates this helps show that it is a right that should be protected.
The rightness of marriage may also be shown with reference to other social indicators besides children's well-being. Marriage gives a normative and legitimized context for sexual union between men and women. When we freely go outside this context for sex, we see, for instance, much higher rates of (often devastating) sexually transmitted diseases. Moreover, married men and women are often healthier emotionally, financially, and physically. In spite of the fact that we may artificially cut off sex from procreation, the fact of the matter is that sex (in its regular manifestation), while being a unique and powerful act of unity, is also the reproductive act. Having children is a natural outcome of having sex (and it does happen even when people use contraception). Marriage helps tie a man (who otherwise by nature would not be inclined to be monogamous) to his children and his children's mother in a way that no other arrangement really can -- and that's almost always better for him, his wife, and their children.
So does any one factor in itself prove marriage is a right? Probably not, but in combination I think history, tradition, biology and the natural law help establish that with regard to all our fundamental rights, marriage must surely be counted among them. As the Supreme Court said over a hundred years ago (
Maynard v. Hill): "[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress."
