Thoughts on Same-Sex Marriage, Part II: Distinguishing Rights and Privileges

It is very important to distinguish rights from privileges. Rights are things we do, with which the government may not interfere. Privileges are things the government does for us. I have a right to publish my own opinions; I have no right to have an interstate highway system. Had Eisenhower never built the system, I could not claim that my rights had been violated. I have a right to worship as I please; I have no right to the Social Security Act. Had Roosevelt never signed the act into law, I could not claim that any right had been violated. What I do may reside within my unalienable rights; what I petition the state to do is a privilege.

For the civil authorities to protect my marital union with another individual—by making public record thereof and by permitting me access to the courts to resolve any issues that may occur if that union dissolves—is not a right; it is a privilege. If the government chose not to make a record of any marriages at all, none of us could say his or her rights had been violated. In fact, in a chapter titled, “Privatizing Marriage,” taken from their book, “Nudge: Improving Decisions about Health, Wealth, and Happiness,” Cass R. Sunstein and Richard H. Thaler have proposed the matter of the state recognizing no unions. The authors suggest that this could be done without judicial appeal or action at all, by mere legislative activity. They appear, therefore, to concur with me that, at the present time, the Constitution does not guarantee to anyone a “right” to have any marital union recognized by the state.

In such a scenario, I could still be united to my wife, with or without any state recognition of that union (and indeed, many states have provision for what they call “common law marriage” when no such state recognition has been made). Whether the state recognizes my union with my partner or not is irrelevant to my right to enter such a union, which is proven by the fact that many people “live together” without seeking such state recognition.

The state proffers to citizens a number of privileges that are not rights. The state may issue a license to an individual to drive an automobile, carry a concealed weapon, operate heavy equipment, or install plumbing or wiring in a house; but it does so, in each case, on its terms, and only when the individuals satisfy those terms. If an individual continues to fail his driving exam or his plumbing exam, he cannot claim that a “right” has been violated; he may have a right to redress his grievance, and he may have a right to petition for the license, but he has no right to be assured that the state will grant the license. In some states, only a certain number of plumbing or electrical licenses may be issued annually. Would-be-plumber Bob may believe this is arbitrary, and he may petition the legislature for legislative relief in the matter, but he could hardly claim that a right had been violated. Virtually by definition, any licensing agency of any sort has the right to determine the criteria by which its licenses are issued. A marriage license is no different. If the state determines that it will only issue such licenses to people in a given category (one man/one woman, as opposed to the Mormon one man/several women), the individual cannot reasonably claim that his rights have been violated. Now, if a constitutional amendment were passed, guaranteeing a marriage license to any consenting adults who applied, the argument could then be cogently made.

Proponents of same-sex marriage often use language that is a little untruthful here. They often say, “I only desire the freedom to do as I wish with my life,” when in fact, they wish something in addition. They wish the state to take an action also; to take the action of issuing a license and making a public record of their union, and potentially to take the action of hearing and adjudicating a divorce proceeding. So, in point of fact, they wish not only their constitutional right to do as they please; they wish the state to make public record of one of the things they desire to do. And again, whether this desire should be granted by the state is not my point here; my point is that it is not truthful to declare that you merely wish to do something yourself when you also wish another entity (the state) to do something, too.

Editor’s note: This is Part II of a three-part series on same-sex marriage. See Parts I and III here:

Thoughts on Same-Sex Marriage, Part I:
The Politics of Rights and “Ressentiment”

Thoughts on Same-Sex Marriage, Part III:
The Issue Is Civil, Not Religious