The Wrongs of Rights 4: Of Nuptials and Thoughtcrimes

Homosexual marriage destroys the very concept of liberty.

I disapprove of what you say, but I will defend to the death your right to say it.

- attributed to Voltaire

For centuries, American schoolchildren were taught to honor the memory of the Pilgrims who braved the dangers of icy Atlantic Ocean and hostile Massachusetts wilderness to obtain liberty of conscience.  We are not, mostly, Puritans today, and yet the idea that each individual has the right to decide his or her own religious beliefs and to practice them without outside interference reaches the very core of what it means to be American.

So strongly held is this belief in religious liberty that Americans tend to cling to it even when it puts their own lives at risk.

In point of fact, freedom of religion is really two separate freedoms.  Liberty of conscience, the first half of freedom of religion, is the right to believe, or not, as you see fit.  The Spanish Inquisition half a millennium ago as well as Saudi Arabia and many other Muslim nations today violate this right: their subjects must confess belief in the established state religion under pain of imprisonment or death, and once they declare themselves to be members of this religion, they cannot depart from it in this life.

Nobody in the United States or any other Western country would dare to try to force people to confess faith in a creed they don't accept.  Freedom of conscience alone, though, is not enough to have religious liberty.

Very few religions are entirely inside your mind; almost every faith demands certain rituals, requires specific behaviors, and condemns sinful practices as listed in its holy writings.  This brings us to the other half of religious liberty: the freedom of religious practice.

Our founders understood the distinction and made sure to specify both halves in the First Amendment to the Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Government cannot establish a religion - that is, force you to say you believe something you don't - and it also cannot stop you from exercising whatever religious practices you see fit.

Like free speech, freedom of religion is a fundamental human right that belongs to everyone everywhere.  As such, it should override all other, lesser rights; only when it comes into conflict with another primary human right can there even be a question.

That's why the Mohammed cartoon controversy of 2005 was so important: Muslims the world around demanded, not the right to practice their religion (they already had that) but the authority to prevent other people from criticizing their religion.  Free speech is itself a fundamental human right - the one cannot be allowed to simply destroy the other.

On the other hand, we don't allow cannibals or Mayans to practice their religious rites of human sacrifice because that would destroy the right to life of the victim, another fundamental right.

As we saw in the previous article in this series, modern liberal rhetoric tries to place other values on an equal level to fundamental rights, if not above them, the better to restrict or destroy those fundamental rights.  A right not to be offended, as the Muslim protesters in 2005 demanded, destroys the right to free speech; a right to health care destroys the right to private property and imposes involuntary servitude on doctors who're forced to work without pay.

In the same vein, the current controversy over same-sex marriage, if allowed to reach the conclusion demanded by its activists, will destroy the right to freedom of religion.

Homosexual Rights - Special?  Or Unique?

For four decades now, homosexuals have mounted campaigns and parades in demand of "their rights."  At first, they primarily wanted the right to be left alone, a desire that many libertarians and even conservatives might regard as just and proper.

Homosexual activity had been illegal for generations, although the laws were rarely enforced as long as the behavior stayed locked in the closet.  The 1969 Stonewall riots in New York City's Greenwich Village mark the beginning of modern homosexual activism; the individuals involved merely wanted to pursue their private affairs on the private property of a bar without the police busting in and arresting them for it.

This effort finally came to a conclusion in 2003, when the U.S. Supreme Court struck down all anti-sodomy laws as unconstitutional in the Lawrence v. Texas case.

The facts of the original incident triggering the case are about as intrusive as can be imagined: two homosexuals were engaging in their practices in their own apartment.  A neighbor called the police and falsely claimed that a shootout was in progress.  The police, not knowing that the report was a lie, bashed in the door with guns drawn.

What they found taking place within was no threat to anyone; it was, however, a crime under Texas law, so the two were duly arrested and charged.

Regardless of one's position on the morality of homosexuality, we can all agree that we don't want the police bashing down bedroom doors of consenting adults.  Heterosexual adultery was also illegal for many years; it's not anymore, nor should it be.  There are a great many things that may be morally wrong, or prohibited by religion, but yet which are not proper areas for government involvement; surely private sexual behavior is one of them.

In seeking the right to be left alone, homosexuals wanted nothing more than the same rights everyone else gets - and they have every right to them.  The infamous case of Matthew Shepard, a homosexual who was brutally tortured and murdered, is a case in point: he was murdered, and the criminals who did it are murderers.  They should (and did) pay the price for that crime; the homosexuality of the victim may play a part in establishing motive, but it's not relevant to whether or not the murder should be punished.  Murder is murder; homosexuals have the same right not to be murdered as we all do.

It didn't end there, though.  Today, the current demand is for same-sex marriage, which brings us into a completely different arena.

Marriage - Not A Right At All

In this series, we've talked about rights of various kinds: of natural human rights that everyone has; of civil rights that only citizens enjoy; and positive "rights" that are no rights at all, but are more of an anti-right used to destroy real rights.  What category does marriage fall into?  It doesn't - it's not a right at all.

Do you have a right to a drivers license?  No.  Children can't get one.  Blind people can't get one.  The illiterate are not supposed to get them either, though we find all too many fraudulent licenses issued to the unqualified with dire consequences.

The very word "license" means "to give permission;" if permission wasn't needed or couldn't be withheld, why do we bother?

No, what everyone has is an equal right to apply for a drivers license and have the application granted or rejected based on rules clearly established by law.  If, say, black people were all being denied drivers licenses, they could sue for their rights, but not because they have a Constitutional right to get the license; what they deserve is an equal right to "due process," that is, for the rules to be followed and individuals not to be discriminated against because of their race.

As a further subtlety, suppose that a state had unfairly denied black people drivers licenses for racist reasons in the past.  Would it be right to grant all future black applicants licenses to drive regardless of their ability in order to make up for past discrimination against other blacks?  To ask the question is to answer it, but in effect, that's what today's "civil rights" activists demand.

A marriage license is exactly the same as a drivers license.  Nobody has a right to marry.  Everybody has an equal right to apply to be married and to have the rules applied equally.

These rules vary somewhat from state to state: some states let you marry your cousin, others not; some states require a blood test or waiting period; and, of course, there's the fee you have to pay.  All states prohibit you from marrying more than one other person at a time.  Most states only permit you to marry an individual of the opposite sex.

How is this discrimination?  As long as the rules are spelled out in advance and applied fairly, there is no "rights" issue involved.  A homosexual has exactly the same rights as a heterosexual: the right to marry one individual of opposite sex from themselves.

Of course, the rules can be changed.  Vermont and New Hampshire's legislatures both passed laws removing the opposite-sex restriction from marriage and their governors signed them; nothing philosophically wrong with that.

The problems arise when special interests try to convince judges to create a "marriage right" where none exists.  Massachusetts and, more recently, California have gone this route; in the case of California, the people overwhelmingly expressed their anger with this tactic at the next election.

What happens when marriage is elevated to a right?  The same thing as when health care is fraudulently made a right: other, real rights are compromised or destroyed in favor of a non-right.

Prohibiting the Free Exercise of Religion

A religion, if it is to have any meaning, has certain specific beliefs and practices; as we saw, the Constitution protects the right to these practices.  You may think my religion's practices are bizarre, illogical, or antiquated.  No matter - as long as they don't harm anyone else's fundamental rights, I have an absolute right to my practices.

Even though it can be argued that taking peyote harms the consumer, the Supreme Court ruled the Native American Peyote Church legal because their practices harm no one else: peyote is normally an illegal drug, but banning it from religious use violates the First Amendment.

Elevating same-sex marriage to the same level as fundamental rights allows its partisans to force other people into actions that violate their consciences.  The privately-owned Methodist Ocean Grove Camp Ground As­so­ci­a­tion in New Jer­sey found this out the hard way when a lesbian couple wanted to rent their pavilion to celebrate a same-sex union.

Homosexuality violates Methodist beliefs and having the religious group's property used in, as they saw it, an act of blasphemy outraged the consciences of the members.  Naturally, they refused the request.  The lesbians sued; the government threatened to strip the religion of its tax-free status if they would not act against their beliefs.

Not only is privately-owned property under assault; individuals are forced into actions against their conscience.  Wedding photographers Elaine Huguenin and her husband were fined for refusing to photograph a lesbian "commitment ceremony."  The California Supreme Court condemned two doctors who refused to artificially inseminate a lesbian even though they had referred them to other doctors who would have been happy to do it.

It gets worse.  Under a new bill now in Congress, anyone who publicly condemns homosexuality can be convicted as an accomplice to a hate crime committed by someone else.  The Washington Examiner reports:

The most dangerous part of the Bill which is a direct assault against the First Amendment is that it allows for the prosecution as accomplices in a hate crime for talk show pundits that the person who commits the alleged crime claims to influence their actions.

Here is the essential text:

"Whoever transmits in interstate or foreign commerce [radio, TV, internet] any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both. (HR 1966, SEC 3, Sec. 881a)"

Reverend Ted Pike of the National Prayer Network says that "this means that if any pastor, talk show host or guest, or anyone communicating on radio or the internet is repeatedly "hostile" to the practice of homosexuality and "intends" to cause "substantial emotional distress" in homosexuals, leading to repentance, he is guilty.  [emphasis added]

Most major religions condemn homosexuality as a sin.  By definition, committing a sin is supposed to make you feel guilty, which is emotionally distressing.

The law by its very nature would bar religions from preaching their own beliefs - that is, prohibiting the free exercise thereof.  This would violate both their right to freedom of speech and their right to practice their religion.

Liberal commentators say that same-sex marriage is no threat to traditional marriage - and, for once, they're right.  The problem isn't the so-called "marriage" itself.  It's the demand of homosexuals that everyone else accept and honor their personal choices; any criticism of homosexual marriage or of homosexuality itself becomes a thought crime punishable by a fine and imprisonment.

The threat is to freedom of speech, of religion, of the press, of private property, even the ban on involuntary servitude... really, homosexual marriage negates all the truly fundamental human rights for which our forefathers fought and died.

Nobody has a right not to be criticized - but that is exactly the right that homosexuals and the modern-day fascists of both the Islamofascist and Liberal Fascist varieties demand, and by forbidding criticism, all other rights vanish.

Thus far, we've discussed the difference between human rights which apply to everyone, civil rights which apply to citizens alone, positive rights which actually destroy real rights by legalizing theft, and the way false elevation of bogus rights destroys the entire concept of American rights.  In the next article in this series, we'll take a look at one of the safeguards our Founding Fathers put in place to try to avoid this problem, and see why it isn't working.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Society.
Reader Comments

I am of the opinion that states have no right to issue marriage "licenses" in the first place. The origin of the marriage "license" lies in anti-miscegenation law, and their initial purpose was to enable the state to prevent Blacks and Whites (however the state defined those two terms) from marrying.

Marriage is a religious sacrament. The state involving itself in the regulation of religious sacraments is a breach of the separation of church and state. Should the state also have a right to force would-be priests and ministers to get "licenses" in order to be ordained? Should people be forced to get baptismal "licenses" from the state before they can be baptized? Where does it end?

"But the state HAS to be able to recognize and differentiate between marriage and not-marriage, in order to determine eligibility for various benefits such as medical decisions, inheritance, etc." -- this is the argument often used to justify the continuation of the "licensing" system still used by states to regulate marriage. I say that states have every right to regulate civil unions, not marriages. States are free to recognize religious marriages as one qualification for a civil union, but recognition of a marriage -- again, a religious sacrament -- is not within the purview of a state's powers.

This entire argument is one of semantics and could be best solved by states backing off from something they should never have seized in the first place. Get out of the marriage business entirely and limit state powers to the recognition of civil unions. If Unitarians choose to recognize gay marriage, that's their choice as a religious group. It is totally irrelevant to what states are supposed to be regulating.

I am indifferent to gay marriage as compared to any other, but I am opposed to state regulation of marriage for anyone. The state is free to demand that I *notify* them of any marriage I may choose to entangle myself in, for purposes of civil union regulation. It has no right to force me to ask it permission to marry who I will. It didn't when it tried to regulate unions based on race and it doesn't now.

As for the specifics of gay marriage, I am always amazed at the conservative fascination with homosexuality. As a man who has been through our grotesquely gender biased "family" court system, and seen evidence upon evidence of the destructive effects our divorce and custody laws have on children and their families, I am especially amazed when I hear conservative clamor over how gay marriage would be "destructive to the family", as conservatives appear reluctant to offer even a peep of criticism towards something that is many times more destructive to the family than gay marriage could ever hope to be. Libertarians appear to have caught on, and occasionally make "family" court reform a part of their platforms. Conservatives, who tend towards less idealism and more chance of actually winning office, appear to choose their issues more on which will likely put them in power rather than which are actually more important.

July 22, 2009 10:37 AM
Why even allow civil unions to be "licensed" by the state? The typical response is that it helps with inheritance and other instances in which the spouse gains automatic rights and benefits. I say phooey. Make a will if you want all your possessions left to your spouse. You can make a legal will, at any time, for as low as $50 online.

The need for state-based marriages and civil unions is completely obsolete. Technologies allows couples to grant rights via other cheap, specific mechanisms.
July 22, 2009 1:16 PM
Fair point lfon. My SO and I (we are not married but we have three children) should really get working on ours.

Is there ANYTHING that a marriage will empower a couple to be able to do, that cannot be accomplished via other legal means?
July 22, 2009 1:34 PM
@ lfon. The justification for states having the right to "license" civil unions is that it's a legal contract between 2 people, like a business partnership. Codifying the civil aspects of what we currently call marriage into law IS within the purview of the states. I agree with Werebat, let any two people get a civil union codifying the legal rights and responsibilities they have with regards to each other and that's it. If the two people want to further codify their relationship as a "marriage" in the religion (or any other group affiliation, or no group affiliation at all) of their choice, that's up to them. It's no business of the state.
July 25, 2009 9:25 PM
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