There is no Legally Tenable Position for Denying Homosexuals the Right to Marry Each Other

1. (a) Rights are derivable from the nature of man. Thus, for example, there is right not to be enslaved as a consequence of the nature of man to be free. It is the nature of man to want a mate and to live with a mate. Homosexuals have that right, because same-sex relationships are in their genetic nature. Consequently, any law that attempts to prevent homosexuals from forming and maintaining same-sex relationships would be a violation of their rights. (b) Marriage is a contractual convenience afforded by the state. It is certainly not a right. There are religious and traditional ceremonies that are also called "marriage," but those are voluntary private matters not subject to legal rights of the sort contemplated by this debate. The question here is whether there is a right to have a special contract prepared by the State which codifies marriage. If there is such a right, then a nation that does not provide official state marriage contracts is violating the human right to have such a contract. For example, a region of tribal societies may be in a nation that makes no offer of official of government marriages, instead leaving tribal traditions to prevail. To argue that marriage is a fundamental right, one must argue that such a nation is violating basic human rights. (c) Violations of human rights are proper grounds for international intervention. For example, NATO could justifiably intervene to prevent ethnic cleansing in Bosnia. So does the failure of a nation to provide official state marriage contracts potential grounds for war? The idea is absurd. The idea is not absurd with respect to every other human right. (d) State marriage contracts are relatively recent legal innovations. So in all the past millenia in which there were no state marriage contracts, are we to conclude that human rights were being violated? In fact, the concept of nation states is relatively recent on the time scale of man's existence. Must we conclude that cavemen were deprived of rights because there was no state to issue contracts? The concept is absurd. (e) Finally, let us suppose that a modern country decided to get out of the business of issuing marriage contracts entirely. Instead, individuals were left to inventing their own contracts entirely as they saw fit. why would adopting such a system violate human rights? I do not see any human rights violations. 2. While marriage is not a fundamental right, there are also legal arguments based upon concepts of equal protection under the law. (a) Con may argue that the government affords special privileges to those holding government-issued marriage certificates. If there is a violation of human rights in that circumstance, it is that people who are not married are discriminated against. But as a practical matter, gays may be separately be afforded equivalent civil union contracts that provide equivalent benefits. If there were no state marriage contracts, the current benefits of state-endorsed marriage could be legally granted to persons in any of variety of contracts meeting specified legal criteria. For example, in California, there is a type of legally codified relationship between an older dependent and a younger caregiver that affords certain privileges to that relationship. (b) The question then arises as to whether the rights and obligations under a civil union must be identical to that afforded to heterosexuals. (Here, the word "right" is used in a different sense from its use in "human rights" -- consider "club members have the right to use tennis courts." It is a granted privilege, not a human right.) To address that question consider the status of the rights of women relative to men. The rights of men and women are nearly identical, but not exactly. In the United States, the Equal Rights Amendment, which would have made the rights identical, failed. Those supporting the Amendment argued that even if it passed, it would not force identical treatment of men and women. For example, separate sports teams and separate restrooms for men and women would somehow still be allowed. The reason for accepting some differences is the obvious fact of genetic differences engendering some practical differences. Homosexuals are also genetically different. The question is whether those genetic differences should be allowed to engender practical differences reflected in law. I claim that society does not know for sure. For women and men, there is a high degree of equivalence in law, let's suppose it is 95%. For gays and straights equality may be 100%, but it also might be 99%. We don't know. Demanding, based upon legalistic mumbo-jumbo, that it must be 100% does not serve either the gay community or the straight community. Civil union legislation should be promptly enacted that establishes fundamental parity, but then the law and precedent should be allowed to build as experience is gained. For example, child custody issues in divorce might develop differently for gay civil unions than for heterosexual marriages. I don't know if they will or not, but it is possible. 3. Finally, new law should never be made by redefinition of terminology. Marriage laws were made in contemplation of heterosexual relationships. If voters wish to vote to apply existing marriage laws to gay couples, then voters have the right to do so. However, the Court system has no right to change law by virtue of its own redefinition. Doing so violates the principle of rule of law. Rule of law requires that the citizens, directly or through their representatives, determine what the laws are, and the Courts ought to apply the laws. It is reasonable that Courts resolve conflicts among laws, or in the U.S., conflicts among Constitutional rights. However, allowing judges to redefine terminology to effect new law is rule by individuals not subject to democratic consensus, and that is wrong. Marriage is not a right for either heterosexuals or homosexuals. It is a contractual convenience offered by the State. Equal protection under the law allows differences for genetic reasons related to sexuality, as witnessed by the difference allowed in the rights of men and women. Therefore some differences may be allowed with respect to the rights of gays and straights.