Ted
Olson argued (or asserted) before the Supreme Court that marriage is a “fundamental
right.” From that premise, he reasoned that homosexuals are being denied that “fundamental
right.”
But even
if we agree with that characterization, the argument is equivocal in more than
one respect.
Even if
marriage is a fundamental right, that doesn’t make it a Constitutional right.
Not all human rights or civil rights are enshrined in the Constitution. The
Constitution is a very limited document, and deliberately so. It’s a non sequitur
to infer that if marriage is a fundamental right, then it must be a
Constitutional right.
The
Constitution is silent on many social issues. There’s a reason why we have
Congress, as well as state legislatures.
I wonder if, besides marriage, there exists any other "fundamental right" that requires a state granted license to exercise?
ReplyDeleteGun ownership in most places in the US requires a license.
DeleteI have wondered if marriage is a civil right. It's a Biblical right (1 Cor 9:5), but that means that it's subject to Biblical principles after the same hermeneutic that allows for it to be considered a right. But the state doesn't have that inherent interest in marriage. Their purpose is a little different. It's not explicit or implied anywhere in the Constitution unless homosexuals want to create some homosexual religious cult. However, that didn't work so well for the Mormons and their earlier bigamy. I suppose most people derive it from the Declaration of Independence loosely under the phrase "pursuit of happiness". But that was never codified as such when the constitution was actually drafted. It's the same argument you hear from so many seeking a no-fault divorce who claim that they simply aren't happy in their marriage anymore and argue to their pastors that God just wants them to be happy. Bad arguments sometimes bear children.
ReplyDeleteIf marriage is a fundamental right, then I would like to marry my grandmother, my nephew and my sister. If the right is fundamental, on what grounds can I be denied without it interfering with my rights?
ReplyDeleteGays are not being denied the right to marry. It does not follow that if I want to marry a cow or a person who is already married that I am being denied my right to marry. Any gay man who wants can decide to find a lady and marry her, so long as she isn't already married. The argument is absurd and Olson knows it is.
ReplyDelete