The following critical analysis of the recent SCOTUS decision regarding marriage equality is a guest post from my partner. As we celebrate a step in the right direction this July 4, this post serves as a gentle reminder that our rights cannot be bestowed upon us like a gift from the government. They can only be acknowledged and defended. In fighting for equality, perhaps such a fine point seems like a quibble over semantics, but it’s an important one because it is the difference between asking permission and demanding what is legitimately ours.
In Obergefell v. Hodges, love did indeed win. Gay rights movements across the nation were give a wonderful reason to celebrate – LGBTQ now enjoy equality under the law in regard to marriage. This outcome was absolutely required by the 14th Amendment. If government is going to do anything, it must conduct its business without such unlawful discrimination on the basis of race, nationality, gender, sexual orientation, etc. Yet while the SCOTUS made a monumentally necessary decision, it also provided an observable continuation of a dangerous definitional shift.
We reject anti-gay discrimination because it violates a basic democratic government principle codified in the 14th Amendment: government must treat its citizens equally under the law. And that is enough. We must protect equality because it is a cornerstone of democracy and liberty.
Women’s rights and aboriginal activist Lill Watson ingeniously reasoned, “If you have come to help me, you are wasting your time. But if have come because your liberation is bound up with mine, then let us work together.”
Chinese activist Ai Weiwei, whose online presence has been all but eradicated by the Chinese government, echoed this sentiment: “If someone is not free, I am not free.”
Legal equality for all is prerequisite to personal freedom.
Many historical dictators and fascist regimes absolutely protected their own rights but impinged others’ daily, which resulted in the mere illusion of freedom. This reasoning is rampant in today’s and yesterday’s Conservative arguments. They repackage already discarded arguments from 1960s segregation in their efforts to discriminate against minority groups, all the while claiming their religious freedom is being encroached when they are not permitted to discriminate.
A case in point, this somewhat hilariously self-defeating attempt at claiming oppression from a Catholic group opposing marriage equality.
Today’s politics would do well to remember Martin Niemöller’s famous and provocative poem:
“First they came for the Socialists, and I did not speak out—because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out—because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.”
The Bill of Rights is not meant to be an exhaustive list, as evidenced by the 9th Amendment. In its codification, its authors outlined the basis of what makes something an absolute, unalienable right. One should be as free as possible until that freedom abuts someone else’s freedom.
As John B. Finch famously argued in the 1800s, “Your right to swing your arm leaves off where my right not to have my nose struck begins.”
According to Thomas Jefferson, “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”
We cannot equate freedom of speech with requiring government to reserve air time, provide a speaking platform, or print pieces of paper validating everyone’s speaking ability. Government should not be required to provide churches in which religious persons can meet. Fundamental or unalienable rights require no government permission or action; they require a lack of government prohibition and interference.
Yet we’ve seen a foundational shift away from this definition of “fundamental right” from meaning an unalienable right with which government must not interfere to meaning a thing that government should give you. The SCOTUS highlighted this change by affirming a fundamental right to marry and be recognized by the government. The idea that government must not discriminate in its issuance of marriage licenses or associated benefits is not the problem. What is insidious is the equivocation on the definition of “fundamental right.” The language changes from protecting unalienable rights to handing out rights, like food, water, shelter, affirmation, and happiness.
Certainly, Obergefell v. Hodges is not the first time that a fundamental right to marriage has been articulated. The 1967 Loving v. Virginia Court quoted the 1942 Skinner v. Oklahoma Court, stating that marriage “is one of the basic civil rights of man.” Justice Kennedy merely employs this foundation to imply the existence of other positive rights, stating an anti-gay marriage law “demea[ns] the lives of homosexual persons [and] works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.”
This is a true statement; these things likely occur due to such discrimination. Yet this is not solid legal basis for rejecting a law. Each criminal or civil prohibition demeans and disrespects those who violate it, yet violators’ feelings should have no effect on our evaluation of a law’s constitutionality. To be clear, there is no constitutional right to feel good, be happy, be affirmed, or feel supported. The government cannot ensure or grant these things. There is, however, a constitutional right to be free to pursue these things (life, liberty, pursuit of happiness), subject only to the equal rights of others.
The natural progression of this shift has resulted in in the application of supposed unalienable rights to a redefined idea of personhood that includes corporations. The ramifications of this theory are piling up in the wake of Citizens United v. FEC and Burwell v. Hobby Lobby.
Let’s be clear: the government can and should do all sorts of things, for various reasons. Yet what the government taxes, on what the government spends money, and how the government operates is only the SCOTUS’s business insomuch as it violates fundamental, unalienable rights. The SCOTUS might find a law to be bad or ineffective or failure-doomed, yet their job is to evaluate the law for constitutionality, not quality.
The SCOTUS has strayed from an understanding of basic rights that deals with individuals’ equality under the law. By equivocating their definitions, they have gradually and pervasively moved towards a quite different definition, one that redefines both liberties and to whom those liberties apply. They have redefined terms like “individual,” “freedom,” and “justice.” And liberal America has applauded and supported this evolution. Yet while liberal America intuitively knows it’s wrong to discriminate against LGBT, they largely fail to provide a legal foundation upon which to argue for fundamental rights. Claiming the moral high ground is only helpful as long as your group is in power. After having granted the government the power to decide moral issues for its people, this power becomes a tool to oppress even those who originally granted government that power. As race and gay rights activist Audre Lorde argued, “The master’s tools will never dismantle the master’s house. They may allow us to temporarily beat him at his own game, but they will never enable us to bring about genuine change.”