The Marriage Amendment: No Rights Are Being Taken Away

Jason Dulle

The new motto against amending the Constitution to define marriage as between a man and woman only (thus excluding all other combinations including same-sex) is that "amendments to the Constitution serve to guarantee more rights, not take rights away." I find this motto quite interesting because it is a loaded statement, presuming that homosexuals already have the right to marry, and this right would be revoked from them should the Constitution be amended.

Do homosexuals currently have the right to marry? The answer to this question will determine whether or not the proposed amendment would take rights away. After all, one can't take something away that was never there to begin with.

A good place to start is by asking where rights come from. Rights do not simply materialize out of thin air. Neither do rights exist by a mere claim to their existence. Rights are specific sorts of things that come from a specific source. It seems to me that a right must come from one of two sources: a transcendent source (God), or an immanent source (man/government).

If the right to homosexual marriage has been granted by a transcendent being it would be inalienable by nature. In such a case it would be wrong for man to take that right away through any sort of legislative action. To determine if some god is the source of this supposed right we would have to look to the religions of this world to see if the teachings of their god(s) grant such a right. When we look at the major world religions we do not find the right to same-sex marriage granted. This right, then, if it is a bona fide right, must come from an immanent source.

If human government is the source for homosexuals' right to marriage, to determine whether or not the proposed amendment would be taking rights away from those individuals all we must do is find a current law that grants them the right to marry-a law that would be repealed should the amendment pass. Guess what? There is none. And if there are no current laws granting homosexuals the right to marry, then the marriage amendment to the Constitution would not be taking any rights away. It would merely uphold the laws as they currently stand, leaving them intact. The argument that the marriage amendment would take rights away, then, is unfounded.

Only God Can Supply the "Shoulds"

Having answered the charge that a Constitutional amendment would take away rights what about those who still wish to claim that it is wrong for government to deny homosexuals the right to marriage? Notice the implicit moral claim here. It is being argued that the government should grant the right to homosexuals to marry, and that if they fail to do so it is wrong. Where does this idea of "should" and "wrong" come from? If what is right and wrong on this issue does not find its foundation in some transcendent source, but in the legislation of human government, then there can be no shoulds or wrongs. To make the argument that the government should allow same-sex marriage requires that one believe the right to same-sex marriage transcends what human government may or may not think about the issue. This sort of thinking lands the individual in the camp of theism where universal and absolute rights are possible. As noted previously this does not advance their position because all major theistic systems condemn homosexuality as immoral. To borrow the idea of absolutes from theism to argue for the right to an act that the theistic worldview condemns as immoral makes as much sense as hiring the KKK to promote racial equality!

If the right to homosexual marriage is grounded in an immanent source such as human government the right can be given or taken away at will with no moral significance to either act because rights are mere conventions determined by majority rule or by those in power, not things that have transcendental meaning in and of themselves. Rights begin and end with man.

The right to drive a car is an example of these sorts of alienable rights. The government gives us the right to drive a car and sets guidelines for who can and cannot access this right. At any time they could revoke this right because they have the power to do so, and could not be held culpable for doing something wrong should they do so. The government is under no moral compulsion to grant the right or take it away because the right is not the sort of thing that is fundamental and self-evident, but mere convention that can change with their whims. If homosexual marriage is not a right that can be grounded in a transcendent source then it is grounded in the will of the people, and the people have no moral obligation to give it. If the will of the people is to amend their Constitution to define marriage so as to exclude homosexuals from the institution that is their prerogative. They have done nothing wrong, and have denied rights to no one.

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