Bacon's Rebellion

Democracy Thrives in Sunlight

Speaking of Gay Rights…

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by

James A. Bacon
in ,

gay_marriage

Like a lot of other Americans, I have been slow to embrace the right of gays to marry. That’s because I respect the sanctity of an institution — marriage as the union between a man and a woman — that evolved over thousands of years. But, ultimately, my libertarian instincts prevailed.

As a libertarian/conservative, I espouse a win-win view of human rights. I don’t think, for example, that there is a fundamental human right to education or health care. Those so-called “rights” are derived, or subsidiary, rights. Financing one person’s “right” to health care can be achieved only by taking someone else’s property, thus harming that person. That’s not to say that society shouldn’t provide health care to all, but universal access to health care is something to be bestowed through legislation, not as a fundamental right.

What is a fundamental right? The right to vote is fundamental. Giving John the right to vote does not deprive Mary of the right to vote. Giving John the right of free speech does not deprive Mary of the right to free speech. Giving John the right to a trial by jury does not deprive Mary of the right to a trial by jury. Giving all citizens equal treatment under the law is a fundamental right.

By the same logic, giving Heather’s mommies the right to be married, along with all the privileges and appurtenances permitted under the law, does not deprive John and Mary of the right to marry.  So, while my heart tells me to support the traditional idea of marriage (not because I’m anti-gay, but because I’m pro-traditional marriage), reason tells me to support gay marriage. In this particular matter, I follow my head over my heart.

— JAB

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11 responses to “Speaking of Gay Rights…”

  1. LarrytheG Avatar
    LarrytheG

    Well you got the logic right. Congrats!

    it’s about EQUAL treatment for everyone AND that’s NOT something that legislation can alter… any such legislation would be found unconstitutional – and has.

    But we DO HAVE Universal Health Care. We say that anyone who goes to the hospital will get health care – period.

    from that point on – the issue is really about what is the most cost-effective way to do that – OR we need to go back and repeal the law that says everyone is entitled to be treated at the hospital.

    so the problem is – the folks who say that health care is not a right – lack the spinal fortitude to actually advocate that the laws say that, i.e. repeal the laws that guarantee treatment and let the hospitals put a sign in the window that says – payment is expected prior to treatment – and truly enforce it.

    I actually advocate that – let’s stop pretending and running away from the issue.

    The people who run for election and say health care is not a right – they should sponsor legislation to that effect – and vote that way – and let citizens actually decide at elections if that’s the way they really want it.

    I think we actually do the entire issue a disservice when we say one thing and do another. Let’s get the laws aligned with people’s philosophies… and stop all the dishonest posturing about it.

  2. Acbar Avatar
    Acbar

    “What is a fundamental right?” Are you just going to leave that one hanging? Yes I agree with the two political ones you named, and of course the courts have nominated others.

    But, what about those social imperatives, health care and education? We seem to rebel at a moral level when coming across kids kept working in the fields uneducated by their parents. Likewise, we demand in the name of morality that EMS and hospital emergency rooms rescue folks dying in the gutter (even if we don’t always pay for followup treatment). It seems to me that our moral judgment is evidence that these are “fundamental” rights as much as equality under the law, whether or not there’s a constitution or Bill Of Rights or 14th Amendment out there that says so.

    Justice Kennedy made a splash by referring to morality in defining what the constitution means. I guess in response to both you and LarryG, I’m throwing out there, is our collective morality alone — even in the absence of a constitutional provision — enough reason to compel the education of children, and to provide for public health, and to confer the legal benefits of “married” on persons who treat each other so?

    1. Reed Fawell 3rd Avatar
      Reed Fawell 3rd

      Good insights.

      Consider that many of the same folks who march in vehement protect for the right to kill millions of children alive in the womb, scream at the sight on U-tube of a whale dying on a beach in Alaska.

      Why the disconnect? Or is the connection strong and insoluble instead?

      1. Reed Fawell 3rd Avatar
        Reed Fawell 3rd

        Correction “march in vehement protest”

  3. TooManyTaxes Avatar
    TooManyTaxes

    From a public policy standpoint, I am not troubled by granting gay individuals a right to civil marriage as such right is given to heterosexual individuals. But Justice Kennedy’s opinion is and will continue to be a farce. Discovering new rights where none existed is plain BS. (Similarly, discovering the death penalty is cruel and unusual punishment is simply cut from whole cloth. There is no basis in American history for that conclusion.) But it’s time to move on. I do think that, by recognizing a right to same sex marriage, SCOTUS has compelled a right to plural marriage.

    I do think religious bodies and individuals have and must have a right to reject same sex and plural marriage. The right to the free practice of religion is really in the Constitution and you don’t need to sort through penumbras and emanations to find it.

    What troubles me is why the same people who insist a clerk of court facilitate gay marriage (a reasonable position in my view) often hold that local and state governments can refuse to cooperate with lawful process against illegal immigrants. I ready to pick and chose which, if any, taxes I pay. We live in the Age of Obama, where “those on the right side of history” can select what laws they wish to follow and to compel “those on the wrong side of history” to follow laws selected by others.

    1. Reed Fawell 3rd Avatar
      Reed Fawell 3rd

      I doubt that we will be able to “move on” from Justice Kennedy’s opinion. Surely, we can be dead certain, that all four justices in dissent from the Kennedy majority, do NOT want us to “move on” or otherwise live with it. The dissenters words are plainly to the contrary. The opinion cannot stand.

      Obergefell likely will be rivaled only by Dred Scott. Both decisions are equally flawed. Dred Scott had some grounding in law, Obergefell none at all. The adverse consequences likely to flow from Obergefell majority will match those of Dred Scott, absent political maneuver of a very high order.

      In short, these justices of the Supreme Court have done a great disservice to the nation, and to the institution of the Supreme Court. It’s four dissenters on the Supreme Court make this abundantly plain to us. So too do the opinions that are expressed in the majority.

    2. DonR Avatar
      DonR

      The framers, in their ubiquitous wisdom, wrote just what was needed – “cruel and unusual”. “Unusual” is temporal, it changes over time. The killing of another human being who offers no reasonable ongoing threat to society is, at least, unusual. I’d argue it is cruel as well. More importantly, our corrupt justice system (do you remember the OJ trial?) favors the wealthy over the poor, whites over blacks and women over men. The Constitution requires due process. There is none where the death penalty in America is involved. The death penalty should be outlawed for a myriad of reasons – not the least of which is that the so-called justice system has condemned many a person to death row who simply didn’t do the crime.

      I am probably more conservative than any regular comment poster on this blog. It is way past time to make the death penalty illegal in America.

  4. LarrytheG Avatar
    LarrytheG

    Unclear how “morality” enters into a discussion of govt and law.

    For instance those who think killing a fetus is murder but killing a criminal is not… and extend that out to a few other things like torture.

    the fact that many of those who abhor abortion are at the same time ok with state executions and torture – and CITE – RELIGION just further leads to a special belief system not consistently based on religion or morality.

    but I’ll let that go …

    and posit on marriage that it’s a “couple” BECAUSE – in LAW – there is only “married, filing Joint” and similar. and that was the proverbial fly in the Constitutional ointment. If you say “couple” and you don’t define it then how do you say it’s “understood”?

    next – no law, no legislation can trump “Constitutional” – Only the SCOTUS can do that – UNLESS you want to AMEND the Constitution which has a justifiably high bar.

    I find the concept of same sex intimacy – hard to countenance myself – but I found their treatment by society especially the crueller and hateful among us to be horrible… it was like a caste system… and Perhaps if we could have found it in our collective hearts to accept them as they were including spousal benefits – we would not have reached this point. We planted that seed – and it did grow to a legal movement.

    1. TooManyTaxes Avatar
      TooManyTaxes

      Larry, I think virtually everyone brings his or her views of morality into their politics, law and voting. It’s pretty hard not to do so. And those of us that do are often inconsistent on some issues. But I think we all owe the other person respect for their right to bring their moral values into the political marketplace.

      I got a chuckle at the expense of some of my liberal friends who rant against bringing morality and religion into their politics, as they praised the late Everett Parker, who lead the United Church of Christ’s forays into FCC regulation and media ownership. I wonder what they’d say if a conservative Christian, Jewish or Muslim sect did the same thing?

      1. LarrytheG Avatar
        LarrytheG

        TMT – do you respect hypocrisy?

        that’s my problem.

        I can even respect hypocrisy if one is not aware that they are being hypocritical.. heartfelt beliefs..

        but if someone KNOWS they are being hypocritical – then what? do you still respect that?

        What I do respect is honesty and integrity – earnest efforts to NOT hold arbitrary and inconsistent views… when claiming values and principles.

        that’s across the board… left and right.

        I can disagree with someone and still totally respect as long as their positions are consistent and acknowledge when they stray from that – and admit that when they do – they are making any kind of compromise on issues almost impossible.

        we cannot operate without compromise.

        if everyone insists on total adherence to what they want or else they view it as abandonment of their values – then we’re close to being done as a society.

        I can’t live in a political world – where I’m basing my whole future on one party or the other getting in power.

  5. LarrytheG Avatar
    LarrytheG

    I was not aiming my remarks at anyone in particular and apologize if anyone received them that way.

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