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Rights to Rites

Ah, finally, a chance to weigh in on the latest marriage debate between Carey and the (annoyingly pseudononymous) Irishlaw. And finally I get to weigh in on the side of the former (sort of) instead of siding with the clearly incorrect Irishlaw. Nonetheless, since the post below (and soon, above) this one are more interesting, I'll put this in an extended entry.

Basically, Carey is chastising IL for claiming that while same-sex marriage (SSM) is not a right, there is a right to marriage:

Irish Law says that supporters of same-sex marriage ("SSM") show "contempt" for the democratic process when they appeal to the judicial branch to preserve SSM in the face of the expressed desire of the majority to prohibit it. She claims that this tactic is legitimate only when a "right" is at stake--we can't infringe rights by majority vote--and that SSM is not a right.

That's fine, as far as it goes. But Irish Law doesn't want to say that "marriage" has nothing to do with rights at all. Predictably, perhaps, she asserts that marriage between a man and a woman is a right. This conveniently relieves herself of any obligation to do what she insists the supporters of SSM must do: persuade a majority in the public square to permit the practice, or go without.

I can't blame her for trying to insulate her version of marriage from the whims of the majority. After all, the ability to marry someone you love would be a terrible thing to lose. But why should Irish Law relax, content in the knowledge that her idea of marriage is safely ensconced behind the walls of "rights," while a gay person is forced to endure the vicissitudes of public opinion, pleading in the public square for what Irish Law is assured of having, and for what may, if won, be withdrawn in the next election?

With man/woman marriage safely protected as a right, Irish law can appear magnanimous about her willingness to debate SSM: "if I lost the overall debate in the public square I would be upset and keep working to protect marriage, but I would accept that the result had come about by democratic processes." This apparent magnanimity is possible only because she is protected from "losing" a public debate about whether her version of marriage should be legislated out of existence--she's already locked this up as a right.

First of all, Carey is factually incorrect: supporters of SSM are not going to courts to "preserve" a right in the face of a majority desire to repeal it. No right may be "preserved" that has not already been sanctioned, and the only marriages that have been are those in Massachusetts. And of course, those in Massachusetts have been sanctioned as the result of a court order, which doesn't do Carey's argument any good.

Even given that, the sensible answer to Carey is to point out that this isn't what IL should be saying. After all, heterosexual marriage is a right because it has already in statute by every state in the nation. In other words, a heterosexual couple has a right to marriage because that right is created by statute. (Though not all heterosexual couples: partners who are too young or too closely-related are forbidden.) Indeed, without that statutory right, there would be no legal case for SSM to begin with: the only way that Goodridge and fraternal arguments make sense is by applying a right to equal protection to the existing statutory right to marriage.

This can be demonstrated easily by the following thought experiment. Let us suppose that in a fit of insanity the entire country starts reading my blog, remembers that my preferred position is the abolition of (legal) marriage, and legislatively repeals every marriage statute in the country. Would Carey seriously suggest that a legal case could be made supporting some kind of "natural" right to legal matrimony? And if the state has withdrawn all legal benefits of marriage, of what would this right consist?

In other words, Carey is wrong to think that IL has a burden to persuade the rest of the country that marriage statutes are legitimate. They have been passed democratically in every state legislature, and thus her side has already won that battle and need not refight it. Indeed, what Carey might say is that my side bears a burden of persuasion--which I agree, it does. Or, if Carey really wanted to repeal heterosexual marriage and recognize only SSM, he'd bear that burden. Laws, once passed, don't automatically have sunset provisions.

The trouble is that IL doesn't take this position. Instead, she makes an argument for marriage being some form of natural right:

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."

The cases that IL mentions are, of course, all Fourteenth Amendment cases, and substantive due process cases. And of course, this is the pernicious curse of substantive due process: under the Court's current jurisprudence, the "rights" which we enjoy under the 14th Amendment are defined primarily by what a cadre of Judges at any particular time consider appropriate. In the 19th century this was unfortunate if you were a worker but fairly useful if you were a robber baron; these days it's fairly useful if you're a liberal and a bit annoying if you adhere to a religion. But under the kind of jurisprudence that brought us either Lochner or Loving, the decision sits with nine members of the court.

Which brings us to Carey's next point:

[The argument that marriage has always been defined as between man and woman] 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.

And if you read her argument, perhaps she does. But she doesn't have to. Carey is overlooking the fundamental question when it comes to the definition of marriage: not "what is marriage?" but "who decides 'what is marriage?'"

IL can be wholly consistent and state that marriage is a legal right for heterosexuals simply because there's a legislative right. She doesn't have to make much weaker arguments. Indeed, when she points out that: "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?" she begs for factual dismissal. Marriage has always meant different things in different anthropological contexts. One trouble with translating The Tale of Genji is determining who is "married" or not, given that relationships between the sexes were regulated entirely differently, and for largely different purposes. (See generally, Ivan Morris, The World of the Shining Prince.) Closer to home, marriage among many in Utah doesn't mean "marriage between one man and one woman," or at least it didn't until we (legislatively) decided that Utah had to recognize it as such before admitting it to statehood. Throughout the world polygamy of various sorts and even relationships that we would consider incest have held official sanction.

Of course, any of the arguments that IL gives may be good or bad policy arguments, but they're not justifications for a universal right, and they don't provide a justification for recognition of a right to marriage outside the statutory. Which brings us to the final--and far more vicious than it ought to be--comment that Carey makes:

Chris Geidner is correct to characterize the SSM issue as fundamentally about equality. What I'm curious about is why Irish Law seems so afraid of equality. Is it because she fears that gays will demand that the Catholic Church sanction gay marriage?

I've never thought one should ascribe fear to an opponent unless one has to--it's just d�class�. And in this case, it's entirely unnecessary. After all, reframing the question takes it wholly out of the realm of "equality." No statute currently bars a man from from marrying a man because he's a homosexual. [1]. What the laws do is constrain him to marrying a woman, because marriage is given a certain definition. But as already noted, our marriage laws don't allow you to marry any partner you please, only those recognized by statute. A man marrying a man isn't unequal, it's simply impossible as a matter of fact until the definition changes, a change which is possible at the whim of a legislature. (No one has made an argument that same-sex marriage is judicially impossible.) One might as well reframe the question and ask what terrifies Cary so much about "democracy" or "legislation"--but that would be both silly and mildly offensive, since he's obviously scared of neither.

And of course, neither is IL. She has a preferred defintion of marriage, which within its definition is as equal as any other. Carey has his own. The only reason for my standing with IL in these conversations--I disagree with her on almost every policy point--is that in the end, what's decided here isn't as important as how we decide it. Carey wants to turn the world on its head, and make IL justify her laws to him. But our society hasn't recognized that right, and until it does, it should fall upon Carey or Chris (and, incidentally, to me once the movement gets off its judicial bandwagon) to convince it to do so.

As for whether she should be afraid that courts might come to require the Catholic Church to sanction homosexual marriages: why shouldn't she be? Given the overt hostility to religion which is shown by much of the radical gay rights movement, such a fear isn't irrational in the slightest. At the very least the Church should be worried that in employment, the Church would be required to pay benefits to any employees who later married a homosexual, which would be an implicit recognition. Now, were we making such decisions legislatively, one might compromise, and pass laws stating that no religious organization need recognize rights which contradicted their rites. But so long as we're going through the courts, it's a serious concern.

1: I'll admit to ignorance of family law: I don't know if there's still a state that requires consummation of a marriage for it to be legally valid. Presume arguendo that this isn't an impediment or that if Paris is well worth a Mass, marriage may well be worth one night of consummation. I mean, if that were the issue, it's merely an argument for repealing consummation requirements.


Listed below are links to weblogs that reference Rights to Rites:

» Still in the Fray from Fool's Blog
Tony Rickey comments on the IrishLaw-Cuprisin dispute here. I am writing to make only one point. Tony, in support of IL, writes: After all, heterosexual marriage is a right because it has already in statute by every state in the... [Read More]

» "Marriage" and natural law from Glorfindel of Gondolin
My recent response to IrishLaw about same-sex marriage has provoked a very thoughtful return response--which I'm not sure I entirely deserve given the sarcastic tone of my post. Despite Anthony Rickey's suggestion that IL refrain from making the "much ... [Read More]

» "Marriage" and natural law from Glorfindel of Gondolin
My recent response to IrishLaw about same-sex marriage has provoked a very thoughtful return response--which I'm not sure I entirely deserve given the sarcastic tone of my post. Despite Anthony Rickey's suggestion that IL refrain from making the "much ... [Read More]


I agree that I don't really have the burden of persuasion on why marriage should be a right; it clearly is under the law, while SSM isn't. The arguments justifying SSM are the ones that have to be made, and since it is a matter of policy I think the answer to "who decides" whether SSM is ultimately permissible should be the legislature, not the courts (which I think you agree with). How we decide is of utmost importance to the legitimacy of the law and our system of governance. Still, I thought simply replying to Carey by saying "I don't have to answer that, you do" wouldn't seem very thoughtful. Since I think it is possible to justify marriage being a right (as it is in our law), I didn't mind trying to make that justification. However . . . IL can be wholly consistent and state that marriage is a legal right for heterosexuals simply because there's a legislative right. Indeed, I could have stopped there, but I don't believe the only reason we have a right to marriage is because it's currently on the books. In other words, I don't think we'd suddenly stop having a right to marriage even if we all decided to repeal those laws tomorrow (or if the courts suddenly decided they were all unconstitutional somehow). In the same way, I don't think African-Americans have the right to personal freedom merely because our laws currently grant it to them. I do believe there are natural rights, which if abridged by law would be by unjust law. So I think this gets at a deeper argument between legal positivism and natural law theories. I'm not Robert George or John Finnis (or Oliver Holmes or John Austin, on the other side), so I'm not going to be able to articulate this theory as well as it can be done (or be able to define the content and justification for rights as well as can be done). But I think that might be a point where we disagree on the substance of the matter here. As for the "fear factor," I do think that's a concern. Issues dealing with the encroachment of law on religious freedom have already been cropping up in the courts. While no law could ever compel the Catholic Church to change her position on marriage, there could be many ways in which, without legal exceptions, the Church could be compelled to act in ways contrary to her beliefs.
On that factual question, I know of course there have been differences in marriage. Polygyny still exists in some places; I've read about polyandry though that's much rarer. Some marriages are arranged, some are freely chosen. At some times or in some places, it's permissible for people to marry at younger ages. In many cases, sex outside of marriage has been acceptable in different contexts. Still, as far as I know, any differences in marriage have been differences in form but not in regards to the basic complementary nature of men and women. As an anthropological question, I think you can look at pretty much every single major civilization and culture in history and find some rite of marriage between men and women. Certainly that's the case in most major religions, too, and those have relevance to most people. I think my point isn't as weak as claimed. In any event, that's more to the merits of the argument than I think you were intending. As an aside, it's always interesting to me that I can spend so much time on a post, trying to think of ways people can critique it and attempting to answer those ahead of time (usually by putting in lots of qualifiers), and still there will be lots of things left. I suppose that's why we're law students -- love to pick at and tease out arguments :)

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