We’re Arguing Definitions, Not Rights

Date August 10, 2011 Posted by Amy Hall

One common misconception in the same-sex marriage debate is the idea that the traditional legal definition of marriage is a violation of equal rights. Since this is an extremely emotionally charged accusation, it’s difficult to get past it into a real discussion of the issue.

Here’s the approach I usually take:

1. Nearly everyone who thinks the government ought to issue marriage licenses favors defining marriage in some way. That is, they favor excluding some combinations of people (polygamy, incest, etc.), not individuals, from the definition. Even judges. Even you!

2. You can’t consistently argue that by excluding certain combinations of people, traditional marriage violates equal rights—unless you also argue to remove every single boundary from the definition of marriage and say anyone can marry anyone, in whatever combination of numbers they like.

3. If you’re not willing to argue this, then you’re for having a definition with boundaries, which puts you on equal footing with the traditional marriage supporters.

4. So the question is, which definition should we use? It’s fine for you to argue that your definition of “two people who love each other” is better than my definition of “one man, one woman,” or someone else’s definition of “one man, multiple women,” but we need to start off by understanding that we’re arguing definitions, not rights.

It’s not unconstitutional to adopt either my or your definition, as long as it’s applied equally to every individual. Remember that the Constitution doesn’t recognize rights for combinations of people; rights only belong to individuals. So one can’t say that a man and five women have a right to get married; one can only say that each individual man or woman has the right to enter into marriage (no individual is excluded). This right is then acted upon according to the boundaries set by the state’s definition of what marriage is—boundaries which are equally applied to every individual. You would like to equally apply the boundary of “two people who love each other” (excluding some other combinations), and I would like to apply the boundary of “one man, one woman” to each individual equally.

But I agree that the boundaries we place on marriage need to be relevant to the institution of marriage in order to be legitimate, so why don’t we sit down and talk about the reasons why we each think the country should use our definition?

This definition-vs.-rights issue needs to be clarified. Otherwise, if you’re arguing for the boundaries of traditional marriage, you’ll enter the argument having already been unfairly declared an unconstitutional bigot before any of your reasons are explained (despite the fact that your opponent also favors certain boundaries), and anyone would be unlikely to listen to the reasons why you’re an unconstitutional bigot. We have to get past this first barrier if we want to be given the chance to make our case.

[Cross-posted at Stand to Reason]

Related posts:

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  3. Scott Clark On Natural Law And Gay Marriage
  4. Justice Stevens Agnostic about Existence of "Bill of Rights"
  5. Gay Marriage And The Bible
  6. Playing Politics With Same-Sex Marriage And Undermining A Free Society

14 Responses to “We’re Arguing Definitions, Not Rights”

  1. Benjamin said:

    You explain your approach quite well, but it’s a very narrow approach that ignores the actual state of affairs in favor of semantics. One can just as easily say we’re arguing rights, not definitions. You, for example, (I’m assuming for this example that you’re female based on your first name, apologies if I’m mistaken) as an individual, have the individual right to marry any man that you’re not related to who’s of legal age and mentally capable of entering into a marriage contract. I, also an individual, do not have this right. This is an inequality in our individual rights right there. Neither of us has the right to marry a sibling (equal), neither of us has the right to marry more than one person (equal), and one of us has the right to marry a man (quite obviously unequal) while the other does not.

    Sorry ma’am, but your approach is very narrow. The fact is, as it stands, you have rights that gay men don’t. (And straight men, for that matter, though they’ve no particular use for this one.) Now, maybe the unequal rights are a consequence of the definitional problem or vice versa, but either way, we are in fact arguing individual rights.

  2. Amy Hall said:

    Are you saying that, currently, a gay man doesn’t have a right to enter a marriage? The fact is, every adult has the right to enter into marriage, and no individual adult is excluded on the basis of sexual orientation or anything else.

    However, there is no such right as the ability to marry whomever you want, nor is there such a thing as a right for a couple to get married (rights are only for individuals)–there’s no rights like these for you, for me, or for a homosexual man or woman. This isn’t about having a right to marry a specific person, it’s about a right to enter into marriage. This right to enter marriage is not denied to anyone.

    This isn’t semantics. The government has a right to define and place boundaries on marriage. Every individual has a right to enter into marriage, according to that definition. The only question is, what are the appropriate boundaries the government ought to have in place?

  3. Benjamin said:

    No, I’m saying what I said, which is that currently a gay man doesn’t have the right to enter a marriage with a man. You, by contrast, do. You have the right to a husband, I do not. I do, on the other hand, have a right to a wife, which you do not. I want a wife, I can have one. You want a wife, you can’t. This is self-evidently unequal; different rights are extended to different individuals based on gender.

    Furthermore, you’re either ignorant of or willfully ignoring the fact that legally, rights are not only for individuals. Married couples are privy to a slew of rights and privileges that unmarried couples are not. I can find a list for you if you want, but I suspect you already know this and are simply pretending otherwise for the sake of justifying your narrow view. Since the question is which stance the law should take and in the eyes of the law rights are not only extended to individuals, you should really stop saying that as if it’s true.

  4. Amy Hall said:

    As I said, the right is to marry, not to marry any particular person. It’s not that I have a right to marry men and you don’t, it’s that I have a right to get married, and you have a right to get married. Everyone has that same right. There are certain boundaries on marriage placed equally on everyone that, as a result, narrow the options for me differently than for you and differently than for someone else, but the right to get married is the same for every individual.

    The privileges granted to married people come with marriage, but that comes after. Obviously, whoever chooses to enter into marriage will have the same privileges as everyone else who enters marriage. And the people who don’t choose to get married (like me, so far) won’t have those privileges. Does this mean I don’t have equal rights with married people? Of course not. I don’t have an equal right to the privileges, I have an equal right to get married, and if I do agree to the terms and boundaries of marriage just as all the currently-married people did, I will also receive those privileges.

    The equal right is that anyone can enter into, marriage. But when it comes to entering marriage, there is no such thing as a right for a couple to enter marriage. There’s only a right for an individual to enter marriage.

  5. Benjamin said:

    No, actually, you DO have the right to marry men and I don’t. At least not this side of New York. If you somehow don’t believe this, you can find a male friend and we’ll go down to the courthouse together; I don’t worry about this test because it won’t actually alter my situation at all, as our marriage will not be allowed. If I want to marry a man, I do NOT have the right to get married, which you ignorantly (or possibly just defiantly in the face of reality) insist that I do. I do have the right to marry a woman, true, which is a different right than you have and in no way equal, but what if I don’t want to? What if I would like to do, say, what you can do with no issue or even necessary forethought whatsoever? If I can’t, then our rights are unequal. This is simple and self-evident; you do your argument no favors by repeating your initial conclusion again after it’s already been shown to be incorrect. Clearly, everyone does not have that same right, or we would not be having this discussion and you would not be working so hard to try to justify your position against equal rights with semantics.

    Whether the privileges granted to married people technically come a second after they’re married or at the precise same time is completely irrelevant; in either case, rights and privileges are granted to the couple, not individuals. I never made the claim that married and unmarried people have the same rights (indeed, the fact that they don’t is the entire reason your position is so clearly immoral, otherwise it actually WOULD be a definitional question), only that another of your assertions, that rights are only ever granted to individuals rather than couples, was 180 degrees wrong. That’s two, so far, although they lead to a third, which is your assertion that it’s a definitional issue rather than a rights issue, despite the fact that it directly impacts the rights of real people.

    Now granted, I suppose it’s possible that you’re working under the premise that the current incarnation of the dictionary (which is revised every couple of years either way) is actually more important than the civil rights, happiness, and general legal and financial wellbeing of millions of living people, but I’m more inclined to think that you’re dead wrong a third time and simply prefer to pass the buck to abstract definitions rather than cop to the strangers’ lives you and people like you (assuming you vote) willfully sabotage for no material reason. Which, granted, I would too if I was incapable of just looking around myself and valuing other people over my own semantic abstractions, but I like to think that I’m not.

  6. Amy Hall said:

    If I want to marry a man, I do NOT have the right to get married, which you ignorantly (or possibly just defiantly in the face of reality) insist that I do.

    No, you do have the right to get married, you just can’t marry a man. As I’ve said more than once, no two people, no couples have a right to get married. The right is for each individual to get married. The right for you to get married still exists, even if you don’t choose to exercise that right because you want to do something outside the boundaries of marriage (e.g., marry a man). Again, there is no right to “do whatever you want,” nor is there a right to marry whomever you want. That’s not a right for anyone.

    Anyone can get married and receive the same benefits. Anyone. If they don’t want to enter marriage under the terms of the boundaries placed on it by the state (like me, so far), then they won’t, and they won’t get the benefits. But I have no right to demand that I get the benefits just because I don’t want to enter into marriage as it’s defined for everyone.

    If the privileges given to married people were rights, then I would also be able to demand them. But I can’t demand them, because I haven’t chosen to enter into marriage as defined by the state. If they’re rights, then I’m currently not receiving equal protection of the law, because I’m not receiving those privileges. But they’re not rights, they’re privileges granted to people who are married, and no individual is denied the right to get married. Not me, not anybody else. The fact that people don’t want to agree to the terms of marriage is up to them, but the government isn’t denying me my rights just because I don’t want to agree to the terms of marriage. It would only be denying me my rights if it told me that I, as an individual, would not be allowed to marry under the same boundaries everyone else marries. If it added an extra qualification to exclude me as an individual, then my rights would be being denied.

    I don’t at all deny that this impacts people, but I can’t deny that marriage is a particular thing and not just whatever we want it to be. What’s true about our current rights doesn’t change just because it’s an emotional situation. And I’m certainly not for preventing homosexuals from being together or pledging themselves to each other.

  7. Benjamin said:

    Fascinating. It’s an individual right, you say? It’s not for couples? All I have to do is decide, as an individual, that I want to be married?

    So, your theory is that if I want to get married, I can just walk down to town hall, by myself, and get married? My legal status will be that I’m married, I’ll be listed as a husband from that day forward, and I’ll be able to soak up all the benefits that two people normally have to share all by myself? This sounds like a great deal, I’m fairly shocked that more people haven’t taken it.

    OR, you’re flatly wrong and the embarrassingly small circle that is your thought process on the matter just keeps arriving at the same obvious logical fallacy.

    I suppose I’ll find out tomorrow when I go to my county clerk’s office to tie my own knot, eh?

  8. Amy Hall said:

    Benjamin, you know that’s not what I’m saying.

  9. Benjamin said:

    No, you’re saying that the law only recognizes individuals as able to have rights even though it unambiguously recognizes couples’ rights, that everybody has the same rights even though different people explicitly have different rights, that denying one person rights that another has somehow doesn’t make their rights unequal, and that issues dealing directly with people’s rights that may tangentially involve revision of legal vocabulary terms is a definitional issue rather than a rights one.

    I assume that the civil rights movement wasn’t a rights movement either so much as a debate over the definition of “person”? That women’s suffrage was not a movement for women’s rights but rather a movement to redefine “voter”? That any obvious, obvious argument involving the rights of individuals can somehow be reduced to an abstract debate over the definition of whatever right they’re fighting for?

    Your position makes no sense and almost every assertion you make to support it in your initial article is false. It’d be neat if you could admit that when you realize it and adopt a fairer stance rather than simply repeating it until people give up talking to you.

  10. Amy Hall said:

    Benjamin, every person has a right to get married. No person has the right to marry whomever he or she wants.

    No single adult person is denied the right to marry because of race, or sexual orientation, or anything else.

    Every single person may enter marriage as it’s defined.

    No single person is allowed to marry whomever he or she wants.

    Every single person must marry within the boundaries of marriage.

    No single person is treated differently under the law. There is no “right to marry whomever you want” for anyone. I don’t understand why you can’t see this.

    In the case of women’s suffrage, women weren’t allowed to vote because of their sex. Therefore, they were treated differently under the law from men. They were not allowed to vote because of their sex. When it comes to marriage, no person is prevented from marrying because of his or her sex, nor is he asked to prove his sexual orientation, nor is there any other qualification he must meet. Each person is treated the same under the law. Each person can marry, regardless of his or her sex.

    Once again, there is no “right to marry whomever you want” for anyone.

    I’m sorry to say this over and over again, but you still don’t understand the argument. You’re equivocating between the right to marry and the right to marry whomever you want (which could also be stated as the right for a couple to get married). The first exists for everyone equally, the second exists for no one.

  11. Ben said:

    Yes, single adult people are denied the right to marry because of sexual orientation. They are no longer denied the right to marry because of race… time was, you couldn’t marry a black man, and probably would have fought tooth and nail to maintain that status quo too… but at this point, it’s only sexual orientation that bars people. When it comes to marriage, a person IS prevented from marrying because of his or her sex, unless you’re under the impression that it is an individual thing that you don’t need another person for, which is an assumption you acted as if I was unfairly attributing to you last time. You don’t go down to the marriage store and get paired with another lonely supplicant, you take the person you want to marry and you apply for a license, which is approved or denied based entirely on your gender.

    WHEN IT COMES TO MARRIAGE, PEOPLE ARE PREVENTED FROM MARRYING BECAUSE OF THEIR SEX. This is a fact. This is the fact that you are defending by pretending it does not exist. The right that you pretend does not exist for everyone does in fact exist for everyone except homosexuals. Or the intersexed, but I assume you don’t care about them either.

    You’re pointing to the definition as if it were the issue because you would like it to BE a definitional issue, but it is not. The fact is, unless you discover that you’re a lesbian sometime in the future, you can marry whoever you want and then receive legal rights and privileges for you and your spouse. A lesbian can marry whoever she wants and then be denied legal rights and privileges for her and her spouse. The difference between the two situations is the rights conferred on you vs. the rights not conferred on another human being who, not being you, you do not think deserves them, and would prefer to point to the precedence created by this very inequity as the reason to continue it rather than take responsibility for voting to keep the less privileged less privileged.

    This, like all the other rights issues people like you dragged out for decades, is a rights issue, not a harmless debate over whether we’re going to update our dictionaries again.

  12. Amy Hall said:

    Yes, single adult people are denied the right to marry because of sexual orientation.

    No, no single adult person is questioned about his or her sexual orientation before being allowed to marry.

    WHEN IT COMES TO MARRIAGE, PEOPLE ARE PREVENTED FROM MARRYING BECAUSE OF THEIR SEX. This is a fact.

    No, it’s not. Has this scenario ever happened? “I’m sorry sir, but you’re ineligible to marry because you’re a man.” But of course, you’re equivocating because you’re talking about couples. There is no such right as a right for any particular two people to be married. There are all sorts of combinations that are excluded from marriage, but no individual is denied the right to marry.

    time was, you couldn’t marry a black man, and probably would have fought tooth and nail to maintain that status quo too…

    Oh, for heaven’s sake. You can call me all the names you want, but it doesn’t help your case. Of course I wouldn’t have argued that because it’s not the same kind of thing. Nobody ever said that a marriage between a black man and a white woman wasn’t marriage, they just didn’t like it. So they added extra qualifications to restrict marriage according to race. That is, the definition of marriage was one man, one woman, but the laws were added to restrict people from freely entering into that marriage according to their race (a completely irrelevant characteristic when it comes to the institution of marriage, by the way).

    The pool of marriage partners for a black man was different from a white man. The law treated the two men differently. That’s not what’s happening today. The pool of marriage partners available to a gay man is exactly the same as the pool available to any other man. Regardless of what you say, there’s no law restricting a man from marrying people in that pool because of his sexual orientation (regardless of whether or not he desires anyone in that pool). The law doesn’t distinguish between the gay man and the straight man or treat them any differently. And there’s no test for heterosexuality when applying for a marriage license.

    You’re still equivocating between the right to marry and the right to marry whomever you want. The first is the same right for every person. The second does not exist. Not for me, or you, or anybody else.

    It is not currently the case that lesbians can marry but then they’re denied the privileges that come with marriage. Married people receive the privileges of marriage, unmarried people do not–nor do unmarried people have a right to them.

  13. Benjamin said:

    You keep saying no individual is denied the right to marry as if that’s true. Every individual is denied the right to marry. INDIVIDUALS DO NOT GET MARRIED. Christ, your brain is like a hamster wheel. Marriage is a thing that couples do, Ms. Hall. I do not know how to make you realize this. Individuals cannot get married. Some couples can. Some couples, on the other hand, are denied the rights associated with marriage due to the gender of one of the individuals involved.

    The same reasoning applies to both scenarios. If marriage is Defined (which you claim should be the end all of the discussion, as real people don’t enter into it) as between two people of the same race, which it was for a long time (albeit generally at the state level rather than federal), then a marriage between a black man and a white woman would be illegal, as it was for a long time. However, you would argue that nobody’s rights are being violated and that no inequality exists, since a black man has the same right as any other man, which is to enter into a marriage with a member of their same race. Plainly, this too was a rights issue, although using your questionable logic would make it a definitional issue instead. In reality, it was not a definitional issue, of course, much like attempting to extend marriage rights to gays is not a definitional issue.

    The pool of marriage partners for a man is different from a woman. The law treats the two people differently. That is what’s happening today. Exactly.

    Throwing out a red herring and pretending that the issue is gay men not being allowed to pretend to be straight is entirely irrelevant and not what I’m saying. I’m well aware that most of those espousing marriage inequality as worth preserving would love for gays to have to pretend not to be. Sadly, we don’t live in the Iran of your dreams. Perhaps someday, if people like me quit arguing with people like you.

    In the eyes of everyone involved, lesbians can marry. The legal status of marriage, which is bequeathed to some (though not all, due to legally sanctioned inequalities that you defend) which brings with it said rights, will not be extended to them. As far as a social union that creates kinship, they’re married either way, it’s just that the legal rights that some people can expect are not extended to them. You know. Because they’re unequal in the eyes of the law. And you.

  14. Amy Hall said:

    You’re still equivocating, but you don’t see how.

    Look, I think I see where you’re missing my point. (And I’m going to leave aside the question of race because I’ve already responded to that.) First a point about our current rights, and then I’ll give the clarification that I think will at least bring us to the same page of where the discussion needs to be.

    First, individuals obviously marry another person, but the fact remains that no single individual is denied the chance to get married based on any of his characteristics. That is, every individual is treated equally under the law. That is where the concept of rights comes in. Can you agree that if I want to get married, leaving aside the question of who I want to marry for the moment, that if I want to get married, the government will not examine me and refuse to allow me to get married because I’m a woman, or because of my race, or because of my sexual orientation? That is, the government does not exclude me because of any of these characteristics? This is the area of rights I’m talking about.

    But here’s the point I think will be most helpful to our conversation: Now let’s talk about couples. I’m sure you agree that there are certain combinations of people, even if they love each other, that are excluded from marriage. These include brothers and sisters, more than two people, underage people, people of the same sex, etc. Here’s my point: If equal rights demands that every group of people be included in marriage then all of these qualifications must be dropped in order to meet the standard of equal rights because it’s a fact that there are many groups of people that currently can’t get married. The only question I’m trying to determine is, does the concept of equal rights, does the concept of individuals being treated equally under the law demand that all these qualifications be dropped?

    I think (maybe I’m wrong), you would recognize that some qualifications are valid, correct? If so, then here is where we would agree. If you agree that there are valid qualifications, then you also agree that this is really a discussion about which qualifications are valid. That is, equal protection under the law does not demand that all qualifications be dropped because valid qualifications are okay. Are you with me so far?

    So far, I think we’re in agreement. The starting place where we begin to disagree is the question, is the man/woman qualification valid? Is the sex of a couple relevant to the institution of marriage? Is it relevant enough to warrant the government having an interest in regulating that relationship and not others? My whole point is that this is where the conversation needs to happen.

    To merely say that equal rights demands that the man/woman qualification be dropped is to ignore the fact that there are many different combinations of people who currently can’t marry each other. The only difference is that we both agree that those qualifications are valid, so they’re not part of the discussion. All I’m asking is that you recognize that qualifications are not a violation of equal rights in and of themselves. We should not have qualifications irrelevant to the institution of marriage of course, so we need to argue whether or not the qualifications are valid/relevant.

    Are you in agreement?

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