Before I begin, I’m not ignorant. I am cognizant of the differing viewpoints pertaining to this complicated issue. Also, I’m not a bigot. I hold no contempt toward homosexuals. I respect their natural rights inherent in their humanity, as well as their legal rights accorded by the laws of this land. According to research noted by Nicholas Kristof, conservatives generally understand liberals whereas liberals find conservative reasoning incomprehensible. Most at Duke have never contended with a legitimate defense of legislation outlawing gay marriage. I will do so without sophistry or theology.
Most gay marriage advocates posit marriage as a right. There are two types of rights, natural and legal.
Natural rights are those self-evident, unalienable rights derived from the “laws of nature,” according to the Declaration of Independence.
There are three main natural rights.
First, individuals have the right to own property. Humans own their own body and the labor of their body. Objects that are the product of this labor are thus owned by the individual. Read Locke’s labor theory of property for more.
Second, individuals have a right to life. This can be seen as a subset of the previous right. To deprive someone of life is to do irreversible harm to his body. Third, individuals have a right to liberty. This right stems from the inalienable free will of each individual. Actions are manifestations of the will. Individuals have the right to satisfy their own desires free from interference given that it doesn’t cause substantial harm to others. By substantial, I mean that the harm passes a high enough threshold to justify restriction. For example, playing Nickelback loudly from my car decreases the utility of others. However, it is not harmful enough to strip me of the liberty to play it. However, hitting someone with a baseball bat passes the threshold and is thus prohibited.
Homosexuals are certainly endowed with these natural rights. However, access to the institution of marriage cannot be considered natural. Matrimony is one of many contracts. The relationship between a lawyer and a defendant or a doctor and a patient are also contractual. No one would argue that all people have the natural right to be doctors or lawyers if they so please. Thus, to make the case that marriage is a natural right, you would have to argue that there is something fundamentally different about the contract of marriage. There is no valid reasoning leading to such a conclusion.
Now, let’s consider if access to marriage is a legal right.
Legal rights are mutually agreed upon between the people and the government through the social contract. The equal protection clause of the 14th Amendment is often pointed to. It has been historically used regarding racial minorities. However, homosexual access to marriage is not analogous. Homosexuals are not denied their basic rights as guaranteed by the Constitution such as the right to fair trial. Nor are homosexuals being denied equal coverage by the law. Crimes committed against homosexuals are fully prosecuted. They are granted equal protection in any reasonable interpretation of the clause. The issuance of a marriage license is not such a guaranteed protection. The government has no obligation to grant a marriage license to anyone who wants one. For example, not everyone has access to a driver’s license. Does that mean that the rights of blind citizens are being violated? There is nothing unconstitutional about selectively issuing licenses. Gay marriage isn’t a legal right.
As shown, attaining a license of marriage is neither a natural nor legal right. This doesn’t mean homosexuals should not be married. It merely means that the court doesn’t have the prerogative to invalidate the two laws currently under consideration.
The government certainly has the ability to enforce legislation based solely on morality. Consider polygamy. No state issues marriage licenses for polygamous unions. Polygamy involves a harmless, consensual activity between adults. The state generally has no business regulating such interactions. However, there is a significant moral consideration. Most find polygamy intuitively wrong. As such, society has outlawed polygamists from marriage. The same moral considerations hold true for laws against incest and the like. To argue that morality should not influence law is to likewise accept these other activities. The people must decide whether or not marriage should include homosexuals, not the judiciary.
Justice Antonin Scalia has echoed my reasoning. Scalia is “unwilling to… announce... a fundamental right to engage in homosexual sodomy.” Furthermore, “State laws against bigamy, same-sex marriage, adult incest … are likewise sustainable only in light of [Bowers v. Hardwick]’s validation of laws based on moral choices.”
Some believe that laws restricting the definition of marriage are equivalent to racial laws oppressing minorities. Our nation’s common law is based only on actions. Race is a characteristic, not an action. Homosexuality necessarily is a behavior. Thus, it can be legislated against if deemed to be immoral. This ontological distinction between actions and characteristics is subtle but paramount.
Opponents claim that homosexuals’ not receiving tax benefits violates their equal rights. The green energy industry receives financial support from the government, thus all industries must receive the same subsidy, right? Of course not. Financial incentives for marriage are the same. The rights of unmarried citizens, gay or not, aren’t violated. According to research done at the University of Texas-Austin, children with heterosexual parents fare better on certain quality of life indicators than those from homosexual households. If this is true, then the government has an interest in promoting heterosexual marriage: There’s a positive externality.
The last objection is that my argument promotes a kangaroo state. Tyranny of the majority only exists if the rights of the minority are inhibited. Homosexuals retain all natural and legal rights. A law disallowing homosexuals from owning houses is unconstitutional, but one precluding them from a marriage license isn’t. Homosexuals can engage in a homosexual relationship. It is up to the people whether or not that relationship can be defined as a marriage.
Lost in this conversation is something far more dangerous. In 2011, President Barack Obama unilaterally decided that DOMA was unconstitutional. He then ordered the Department of Justice not to defend DOMA. This strikes at the separation of powers essential to our Constitution. The executive does not have the authority to selectively enforce laws passed by the legislature. His duty is to enforce the law. The real injustice is Obama’s assault on the foundational structure of our government.
This column will certainly be ill received. Disagreement engenders constructive dialogue. My hope is that supporters of gay marriage no longer strawman conservatives as ignorant, homophobic, Bible thumpers.
Jonathan Zhao is a Trinity freshman. This is his final column of the semester. Jonathan will be a member of the independent editorial board next semester.