Gay Marriage is Not a Right

[TiredOfLife]

Answered this in post 23 as an addendum to the post you responded to. The right for a black man to marry a white woman was there...it just wasn't recognized by society. IE to put it in your vernacular...the tea pot was there...it was just with held from certain people.

You miss the point, we created the teapot. Before we did, no tea. You treat rights as if they are just waiting to be discovered instead of being created? Like society, they are our creations.

 

[maquiscat]

In reality, NO marriage is a right.

Whether it's hunting, fishing, driving a car or selling food from a pushcart in NYC, the state issues licenses to permit us to engage in activities that are privileges, not rights.

Driving, for example, is not a right. The state has an interest in our fulfilling the required qualifications before we are issued a license. As with all other licenses we have to qualify to be granted one and it's entirely up to the state to determine what those qualifications may be.

I am not saying any of this as a reason to abolish gay marriage, I just think words and concepts are important.

I will disagree insofar as we do indeed have a right to marry and a right for the state to reconize said marriage. However, we do not necessarily have a right to all of the benefits that currently come with marriage.

Dispite the wording in some states, marriage "licenses" are more certificates acknowledging a legal status not a "permission slip" to engage in such activities. Were that to be true, then the state could revoke a marriage license against the wishes of those on it. You can have your driving license, your hunting license, etc. revokes at any time, should you violate a rule or law and they all, to my knowledge, have expiration dates. Marriages licenses do not expire and cannot be revoked for any reason outside of one of the involved individuals desire to.

 

[Kal'Stang]

A good example of a law that was tossed because it made otherwise rightful people Unequal before the Law.

Actually it was equal from a certain POV. The law applied to whites just as much as it applied to blacks. What made it unequal, as SCOTUS explained is that people have a fundemental right to marry.

 

[TiredOfLife]

I will disagree insofar as we do indeed have a right to marry and a right for the state to reconize said marriage. However, we do not necessarily have a right to all of the benefits that currently come with marriage.

Dispite the wording in some states, marriage "licenses" are more certificates acknowledging a legal status not a "permission slip" to engage in such activities. Were that to be true, then the state could revoke a marriage license against the wishes of those on it. You can have your driving license, your hunting license, etc. revokes at any time, should you violate a rule or law and they all, to my knowledge, have expiration dates. Marriages licenses do not expire and cannot be revoked for any reason outside of one of the involved individuals desire to.

A Marriage License is a State Approved Contract. The others are licenses.

 

[TiredOfLife]

Actually it was equal from a certain POV. The law applied to whites just as much as it applied to blacks. What made it unequal, as SCOTUS explained is that people have a fundemental right to marry.

Now you are into semantics. What they did was make the enforcement of the Right to Marry equal between the races. Because you could now get it enforced it because a right. Before then, it only existed as an idea. As I said, you see rights as being discovered but they are actually created, which is why this case ended up in a court and before the court said so, there was no right.

 

[Kal'Stang]

You miss the point, we created the teapot. Before we did, no tea. You treat rights as if they are just waiting to be discovered instead of being created? Like society, they are our creations.

The ceremony may have been created. But the Right to spend your life with someone was not. It was and is a natural part of nature. For example, wolves often mate for life and the male or female will often stop eating and die if its mate dies.

The reason that we consider marriage a fundemental right is due the the fact that marriage has been around for thousands and thousands of years. So far back that no one has any idea of when the first marriage actually occured...unless of course you are religious then that "first marriage" was between the first man and woman created by <insert diety here>. So in essence marriage has always been around. (the essence of this post is also the reason that SCOTUS deems marriage a fundemental right)

 

[Kal'Stang]

Now you are into semantics. What they did was make the enforcement of the Right to Marry equal between the races. Because you could now get it enforced it because a right. Before then, it only existed as an idea. As I said, you see rights as being discovered but they are actually created, which is why this case ended up in a court and before the court said so, there was no right.

Can't discover what is already there. The Right of something can be allowed in one place and not another. Don't believe me then just look at our BoR and then look at other countries equivilant of our BoR. IE a Right can exist and just not be allowed.

 

[TiredOfLife]

The ceremony may have been created. But the Right to spend your life with someone was not. It was and is a natural part of nature. For example, wolves often mate for life and the male or female will often stop eating and die if its mate dies.

The reason that we consider marriage a fundemental right is due the the fact that marriage has been around for thousands and thousands of years. So far back that no one has any idea of when the first marriage actually occured...unless of course you are religious then that "first marriage" was between the first man and woman created by <insert diety here>. So in essence marriage has always been around. (the essence of this post is also the reason that SCOTUS deems marriage a fundemental right)

There are no natural rights. There is life and there is death. As for the Adam and Eve types, they weren't married, they just made babies together. That's how most of the people who walked the earth before us came about. Marriage is a social convention and a fairly recent one in human history.

Would you describe two wolves as married? Would you describe them as in love? I think you have as romantic a view of them as you do of rights. If nature is your guide watch out, she couldn't care less about humanity.

 

[maquiscat]

A Marriage License is a State Approved Contract. The others are licenses.

Which is what I was noting to Brooks. His comparison of the marriage license/certificate/whatever to any other license is apples to carrots. I was pointing out that that particular argument of his, had no logical basis.

 

[TiredOfLife]

Can't discover what is already there. The Right of something can be allowed in one place and not another. Don't believe me then just look at our BoR and then look at other countries equivilant of our BoR. IE a Right can exist and just not be allowed.

You see teapots where there are none. It's why guns are so freely allowed here but not in many other countries. There is no right to firearms in nature, but there is here because we say so.

 

[maquiscat]

There are no natural rights. There is life and there is death. As for the Adam and Eve types, they weren't married, they just made babies together. That's how most of the people who walked the earth before us came about. Marriage is a social convention and a fairly recent one in human history.

Define fairly recent in the context of human history.

 

[Kal'Stang]

You see teapots where there are none. It's why guns are so freely allowed here but not in many other countries. There is no right to firearms in nature, but there is here because we say so.

If there are no teapots then why do we have a Right to bear arms even though other countries forbid the use of guns? The Right is there, it is just not recognized by select groups of people. Usually by people that want power over other people.

Like I said, just because something is not recognized does not mean that it is not there.

 

[Andalublue]

As with all other licenses we have to qualify to be granted one and it's entirely up to the state to determine what those qualifications may be.

That's the whole point isn't it? Society is in the process of changing its mind about SSM, deciding that it is available to everyone no matter the gender of their chosen partner. You don't have to see it as a right to be able to see the logic and ethic of treating everyone's choice of partner equally.

 

[Zyphlin]

If you want to take this stance then ALL the Rights that we have are "Societal Rights". I don't buy that.

Disagree entirely.

There are natural rights and there are societal rights.

Natural Rights are those things we could do in nature sans any sort of social contract structure.

I have the Right to say whatever I want. I have the right to go wherever I want. I have the right to do whatever I have to do to live. I have the right to be around anyone I want. I have the right to worship whatever I want. These things I inherently have the ability and right to do. These rights are inherent and cannot be PERMANENTLY taken away short of killing me.

However, everyone else in nature has these rights as well and there is no inherent "right" that my righst are protected. If I want to eat a particular apple on a tree and another person wants to eat that apple on the tree, we both have the right to eat it and we both have the right to take whatever action we need to take to do that. I only have rights in terms of what I can do and they extend no further than myself without a social contract.

Once I and others enter into a social contract then we can choose to place LIMITS upon those rights during the time that we are bound by that contract. But they can never be permanently removed.

Societal Rights are those things that would not exist in nature, but exist as "guarantees" under a social contract.

Stating everyone has a vote for who leads the government is a societal right. If the social contract instituted a universal health care system, then the ability of having health care would be a societal right. These are things that are not inherent in nature, but are bestowed upon the individual through the social contract. These rights can be made extremely broad and extremely unencumbered, but they can never be made PERMANENT. If the social contract that established them failed then those rights would be gone.

For example, if the United States crumbled tomorrow and the government was abolished then none of us would have the “right to vote” any longer. However, until such point that the Constitution (The bedrock of our social contract) and laws are changed, we all have the “right” to vote in this country within the parameters it sets up.

Societal rights go the opposite direction as natural rights. Natural rights start broad and absolutely, and through the social contract can be constrained and limited but never permanently removed. Societal rights are non-existent initially, but through the social contract can be broadened and expanded but can never be permanently created.

 

[Kal'Stang]

There are no natural rights. There is life and there is death. As for the Adam and Eve types, they weren't married, they just made babies together. That's how most of the people who walked the earth before us came about. Marriage is a social convention and a fairly recent one in human history.

Recent? You need to study history more. Marriage has been around for thousands of years...if that is "recent in human history" in your book then I am extremely curious as to what you consider "ancient" or even "old".

Would you describe two wolves as married? Would you describe them as in love? I think you have as romantic a view of them as you do of rights. If nature is your guide watch out, she couldn't care less about humanity.

Yes I would. Love? No idea. And no nature is not my guide...it is just an example.

 

[TiredOfLife]

If there are no teapots then why do we have a Right to bear arms even though other countries forbid the use of guns? The Right is there, it is just not recognized by select groups of people. Usually by people that want power over other people.

Like I said, just because something is not recognized does not mean that it is not there.

You made your own argument. We have the Right because We say We do. They don't because They say They don't. There's no Unrecognized right floating around out there. It comes into existence when we say it does, and it goes away when we say it doesn't.

 

[Brooks]

According to 3 different SCOTUS cases yes, there is a Right to marry. Loving v Virginia (1967), Zablocki v Redhail (1978), Turner v Safley (1987).

Also you're arguement fails when you consider that there is a right to carry and own guns and yet you have to have a permit in order to carry those same guns. In pretty much all the states a CCW license is required and in some states a permit is required to even carry openly.

We use the word "right" when we talk about being armed but in reality it is a licensed privelege for which you have to meet certain qualifications.
And with marriage, you have to be a certain age, have a certain mental capacity, not be related, etc. for the state to grant you a license. The Supreme Court may say you have a right federally, but the states apparently regulates the privilege.

 

[TiredOfLife]

Recent? You need to study history more. Marriage has been around for thousands of years...if that is "recent in human history" in your book then I am extremely curious as to what you consider "ancient" or even "old".

Yes I would. Love? No idea. And no nature is not my guide...it is just an example.

So if your wolves stay together for life, but we don't, does that make them more married than we are? My divorce I get from the court. Is that Natural or Man-made? Since we can play it any way we like, obviously we are setting the rules, meaning it comes from us not from some other source. And even if there is some other source, but nature doesn't play by those rules either, then you are really stuck because while the source might exist it doesn't matter here either way. What matters here is what we say and what we say goes.

 

[Brooks]

I disagree, but I think I get where you're coming from. Do you think gay people should have the "privilege" of marriage?

Personally, yes. But not based on it being a right. It should be based on qualifying according to the state's regulations.

 

[Kal'Stang]

Disagree entirely.

There are natural rights and there are societal rights.

Natural Rights are those things we could do in nature sans any sort of social contract structure.

I have the Right to say whatever I want. I have the right to go wherever I want. I have the right to do whatever I have to do to live. I have the right to be around anyone I want. I have the right to worship whatever I want. These things I inherently have the ability and right to do. These rights are inherent and cannot be PERMANENTLY taken away short of killing me.

However, everyone else in nature has these rights as well and there is no inherent "right" that my righst are protected. If I want to eat a particular apple on a tree and another person wants to eat that apple on the tree, we both have the right to eat it and we both have the right to take whatever action we need to take to do that. I only have rights in terms of what I can do and they extend no further than myself without a social contract.

Once I and others enter into a social contract then we can choose to place LIMITS upon those rights during the time that we are bound by that contract. But they can never be permanently removed.

Societal Rights are those things that would not exist in nature, but exist as "guarantees" under a social contract.

Stating everyone has a vote for who leads the government is a societal right. If the social contract instituted a universal health care system, then the ability of having health care would be a societal right. These are things that are not inherent in nature, but are bestowed upon the individual through the social contract. These rights can be made extremely broad and extremely unencumbered, but they can never be made PERMANENT. If the social contract that established them failed then those rights would be gone.

For example, if the United States crumbled tomorrow and the government was abolished then none of us would have the “right to vote” any longer. However, until such point that the Constitution (The bedrock of our social contract) and laws are changed, we all have the “right” to vote in this country within the parameters it sets up.

Societal rights go the opposite direction as natural rights. Natural rights start broad and absolutely, and through the social contract can be constrained and limited but never permanently removed. Societal rights are non-existent initially, but through the social contract can be broadened and expanded but can never be permanently created.

I agree with your assessment here. I just don't think that marriage would apply as it is so ingrained by thousands of years of use across all societies..even ones that never had any contact with outside cultures... that it has essentially become fundemental. I doubt very seriously that marriage will ever be gotten rid of which can happen under societal rights.

 

[TiredOfLife]

Define fairly recent in the context of human history.

50,000 years, although 10,000 or even 5,000 would be an easy bet as well. Even 300 years ago here most people weren't married, there was no one close enough to marry them, and certainly no official body to sign off on such a thing. Look it up, it's interesting.

 

[Brooks]

1. The ninth amendment states that merely because a right is not enumerated does not mean we don't have it. Our default position, with any right, is that we have it.
2. We possess a general liberty interest. Everything is essentially a right unless there's justification to restrict it, like requiring licenses to do all the things you mention, including marrying. You still have a right to do them, just with limits, all of which must still pass constitutional muster, even if it's just a rational basis test.
3. Restricting marriage to just heterosexual unions does not meet a rational basis test, let alone the intermediate, heightened, or strict scrutiny test that would be required for it. Which of those tests would be required is still unsettled law, but that such a restriction fails to meet even rational basis was the result of the Prop 8 cases in California and is likely to form the basis of not only the majority opinion throughout the states, but of a federal standard if/when there is one.
4. Completely unrestricted rights, which I presume you are referring to, functionally do not exist. Every right is subject to some limitations. Even the second amendment, despite how much gun proponents like to bring up "shall not be infringed" as opposed to "congress shall make no law", is subject to restrictions that meet the appropriate level of constitutional scrutiny.

This has been your daily dose of basic constitutional law. Thanks for playing. And be glad it's not November yet so I can't charge you for this.

Obviously there is no such thing as a pure right, just as there is no such thing as a pure democracy or anything pure for that matter.
Nothing you said here is much different from anything I said, other than being reallyreally wordy.

Everything you said, particularly in number 3, is all true, but doesn't change the fact that a licensed activity is not a right in the real world.

 

[Zyphlin]

I agree with your assessment here. I just don't think that marriage would apply as it is so ingrained by thousands of years of use across all societies..even ones that never had any contact with outside cultures... that it has essentially become fundemental. I doubt very seriously that marriage will ever be gotten rid of which can happen under societal rights.

I get your point, I just disagree with it. Things can't become "Fundamental" or "Natural" simply becuase they've been around for a long time. While humanity may never re-enter a state of nature, that doesn't change the fact that such a state does theoritically exist and is the basis (in my opinion) for the notion of natural rights.

I guess in terms of "fundamental" you can get a little bit more fudgy with it...as one could suggest that a "fundamental" right does'nt necessarily have to exist in nature, but is just that is of utmost importance. The problem I have with that kind of reading of it however is that there's no real BASIS. It's entirely based on an individuals opinion as to what they think and believe is most important and thus "fundamental".

I think often when people are talking about "Fundamental" or "Human" rights they're typically speaking of Soceital Rights...they just happen to be societal rights that are present amongst multiple social contracts, and in a way exist under a more over arching social contract amongst the various societies. But ultimately are still "societal rights" once you boiling it down.

 

[Brooks]

Should the State be required to issue drivers licenses to gay people? Apparently. So, why not everything else?

By the same argument then everyone licensed to drive should also be licensed to practice law, dentistry, hunt, sell liquor, run a restaurant kitchen, etc.....
After all, it's just another license.

Not buyin' it.

 

[Brooks]

US law disagrees with you. As pointed out, marriage has been declared a fundamental right repeatedly by the court system, including the Supreme Court. While you may not like it, marriage is a right here, and that fact is entirely uncontroversial.

Is it or is it not a licensed activity requiring specific qualifications? That's all I'm saying.