Human rights and gay marriage
Why same-sex marriage should not be a human rights issue
Many have argued that to deny marriage to LGBT people is to deny them a human right. The Human Rights Campaign is probably the largest LGBT organization, with gay marriage obviously serving as one of their priorities. This leads us to tricky foundational questions: What is a human right, and is the right to marry one of them?
The term human right is flexible, like almost all individual moral concepts. And more than that, we as a community have not come close to agreeing upon what definition, among the many possible ones, we endorse. By comparison, the concept of “freedom” is similarly flexible, but there is more agreement within America as to what that the term definitively means. In some sense, even though the concept of human rights has been around for a long while–inspiring many individuals, organizations, and nations–it’s not unreasonable for us to sit back and analyze not only what the concept means, but rather decide what we want the concept to mean, or rather how we want to flesh it out.
With that in mind, I will posit that we as a community want to safeguard the term. When someone says that a human right has been violated, the people and its leaders should act with full vigor and without hesitation. At its core, the term refers to some resource, capability, or mode of living that all humans either deserve or need, by virtue of their being human. There is something special about being human, which is safeguarded when one’s human rights are protected.
The debate about what is special about being human ends inside our brains–is it (a) our Consciousness and our correlated ability to experience immense pleasure and pain or is it (b) our Will and our correlated ability to autonomously determine our own lives?
Utilitarian theorists, generalizing broadly, believe it is former. Many Utilitarians don’t believe in human rights. They think we should do whatever maximizes overall utility, even if that requires sacrificing some individuals. Others–”rule Utilitarians”–believe that utility is maximized when we live by certain rules of conduct that in a given moment might seem anti-utilitarian. These rule Utilitarians could endorse human rights as beneficial, utility-maximizing “rules.”
Kantian theorists, generalizing broadly, believe that the Will makes people special. They might argue that human rights are those things that safeguard one’s autonomy. Without them, one is either incapable of exercising free choices or one’s free choices are unreasonably frustrated.
This offers some theoretical framework. Human rights are those resources, capability, or modes of living that protect, at a very basic level, peoples’ autonomy and/or happiness. I will attempt to flesh this out in a later post. But, with this is mind, let’s see if gay marriage could be a human right.
Is marriage something, at a foundational level, that people need to be happy or autonomous? What does it mean to marry? It’s the deepest form of romantic promise, or something very important like that. Whatever the true definition, its core involves a promise.
This romantic promise, I think, is a human right. Marriage–if one desires it or has it–is crucial to one’ s happiness (or, er, unhappiness). And it presents a very significant choice in one’s life, such that if the government blocked one’s ability to make it, he would be profoundly less autonomous.
But, no one is questioning the right of LGBT people to make this promise. As such, I don’t believe a state that denies gays the rights to marry thereby violates any human rights. For individuals can still promise to each other whatever they want, and in front of their friends and family; they can still live and spend their lives together, and act the same as they would if their promise was made in front a judge. One response is that they are denied the official benefits that come with officially sanctioned marriage (i.e. tax benefits, hospital visitation rights, etc.). But that is beside the point. Consider that people who present that argument are usually unsatisfied with ‘civil unions’ that offer equal benefits.
No one is saying that LGBT people cannot make this romantic promise.
But, maybe marriage is something more. Maybe it is having the community officially sanction a romantic promise, thereby making it more serious. That may be the case. But that aspect of marriage is no human right. Imagine if Belgium decided that the state was not going to get involved in sanctioning or recognizing anyone’s marriage, gay or straight. We wouldn’t thereby say that Belgium was a human rights violator. To say otherwise I think dangerously weakens the concept of human rights, which should be reserved for those most fundamental things, I believe. (Note that paid vacation is listed on the UN’s Universal Declaration of Human Rights)
The best (philosophical) argument for gay marriage does not involve the term human rights. It involves the concept of equality. What is marriage? What happens when a woman marries a man? What happens when a woman marries a woman? Are there any relevant differences there for the individuals getting married and for the larger society?
One might respond that there is a human right to equality. Unequal treatment does affect one’s happiness (and maybe one’s autonomy depending on what was being denied). But we might prefer a separate domain for the concept of human rights, for those real foundational capabilities that all people need or deserve. The risk, again, is that human rights as a concept becomes muddled and confused; the more things it refers to, the less analytically relevant it becomes.
Another concept I’ll mention is “recognition.” I hope the other writers here might explore what this concept means in the context of the gay marriage debate. The problem for supporters of gay marriages is that the marriages are not being “recognized” by the state. What does it mean to be recognized in that manner? How does that relate the issue of where we place self-respect in the hierarchy of values?
Afinal question concerns the costs associated with gay marriage that are claimed by its detractors. What are these costs supposed to be? What are the chances of them coming to fruition? How do they compare with the arguments in favor of gay marriage?
-Jake
Related posts:
- Healthcare, Rights, and Human Rights
- Gay marriage, continued . . .
- Healthcare and human rights cont.
- Is poverty a human rights violation?
- Human dignity and incarceration
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Think of it THIS way…..if life is just a contest between rationality and chaos, then being married is like having more home games on your schedule as opposed to away games. The very notion of someone ‘having your back’ certainly makes things easier than going it alone.
Here’s why I think gays should be able to marry: the most important concept marriage pulls out of us is ACCOUNTABLITY. You have to be there for your spouse, you HAVE to do the right thing. Isn’t this what we should look for in people? How can you tell someone that because of their natural sexual preference that THEY cannot share this bond in a LEGAL sense, while the people who run this(or any)government are a rogues gallery of the most unaccountable beings on the planet? Isn’t someone with the guts to stand up to public ridicule the kind of person you WANT as your example? That’s who I want.
[...] Why do we have rights? To protect autonomy is the standard answer. Why can’t we soften our conception of [...]
[...] wracked with worry, can only focus on recuperation, may even die, etc. I discussed similar issues in a post arguing that same-sex marriage was not a human [...]
[...] wracked with worry, can only focus on recuperation, may even die, etc. I discussed similar issues in a post arguing that same-sex marriage was not a human [...]
[...] has put together one take on this. To me the operative question has more to do with what marriage is than what constitutes a [...]
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