"Equal Protection Versus Equal Endowment : Constitutional Review Of Same Sex Marriage"
"Marriage Is A Civil Contract With Positive Rights"
For an explanation of negative versus positive rights reference the end of this introduction.
To begin, an important emphasis to note is that negative rights may be equally protected, while positive rights may not be equally endowed.
Also, any civil contract is a "marriage", even though additional connotations may be contrived.
Firstly, in order for "marriage" to be outlawed, a negative right to form a civil contract would have to be made criminal or be legally rejected by civil courts; this is not the case.
It is possible for individuals, which include corporations, to enter into civil contracts for disposition of common properties, private properties, or willful intents.
Such civil contracts may entail the interests of one or more individuals; therefore, unconventional "marriages' such as homosexual or commune marriages are not outlawed.
That is because the formation of civil contracts is a negative right, which is equally protected, whereby the government has not prohibited their formation through criminal or civil statute.
Exceptions do exist such as through antitrust laws for corporations.
Secondly, "recognition of marriage by the state" will be explained as a positive right which may not be equally endowed.
The public, through elected government, may legislate positive rights, or positive obligations, which require the state (and public) to perform some action or to provide some benefit to contract holders whose civil arrangements conform to particular guidelines under a title of "marriage".
In the case of conventional "marriage", civil contracts whose guidelines conform to heterosexual, monogomous, non-sibling, non-retarded, etc. can be registered with the state in order to receive certain benefits (social security of deceased spouse, inheritance of copyright ownership, etc.).
Therefore, the "recognition of marriage by the state" does not imply that unconventional marriages have been outlawed, it implies that positive obligations have been legislated and they may not be equally endowed.
Current positive rights for "marriage" were drafted with an understanding, and directive, that the beneficiaries would be in civil contracts which are conventional in their relationship.
Wherefore, it is a violation of validity in contract formation, as legislation, that alternative civil contracts are presupposed equal to those upon which the previous basis of registration was allowed.
There is nothing preventing civil contracts for unconventional relationships from receiving benefits except that they be legislated separately.
Furthermore, under this convention, given that the state exercises affirmative action based upon race, it is consistent and constitutionally valid to retract, or decline to offer positive rights, obtained through a registration of "marriage" for civil contracts holders egaging in miscegenation.
Negative and Positive rights
According to this view, positive rights are those rights which permit or oblige action, whereas negative rights are those which permit or oblige inaction.
Rights considered negative rights may include civil and political rights such as freedom of speech, private property, freedom from violent crime, freedom of worship, habeas corpus, a fair trial, freedom from slavery and the right to bear arms. Rights considered positive rights may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as public education, health care, social security, and a minimum standard of living. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations.
Under the theory of positive and negative rights, a negative right is a right not to be subjected to an action of another person or group. A government, for example, usually in the form of abuse or coercion. A positive right is a right to be subjected to an action of another person or group. In theory, a negative right forbids others from acting against the right holder, while a positive right obligates others to act with respect to the right holder. In the framework of the Kantian categorical imperative, negative rights can be associated with perfect duties while positive rights can be connected to imperfect duties.
Belief in a distinction between positive and negative rights is usually maintained, or emphasized, by libertarians, who believe that positive rights do not exist until they are created by contract. The constitutions of most liberal democracies guarantee negative rights, but not all include positive rights.
"Three Generations Of Human Rights"
19th century philosopher Frederic Bastiat summarized the conflict between these negative and positive rights by saying:
“ M. de Lamartine wrote me one day: "Your doctrine is only the half of my program; you have stopped at liberty; I go on to fraternity." I answered him: "The second half of your program will destroy the first half." And, in fact, it is quite impossible for me to separate the word "fraternity" from the word "voluntary." It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot.