You Are Correct - Marriage is a "Civil Right"!

The No Crowd at all of their protests and even before the passage of Proposition 8 have clamored that marriage is a "civil right." They are absolutely right! But, in line with their many other legal and philosophical misconstructions (such as equal protection which I'll address at a later date), the No Crowd misunderstands what is a "civil right." Indeed, the fact that marriage is a "civil right" undermines the foundation for same sex marriage and validates and vindicates Proposition 8 and all those who supported it.

What is a civil right?

A civil right is a "right" provided by a government. Such a "right" has no foundation in natural law. Civil rights are nothing more than "rights" created out of thin air by the Legislative body of a civil government. As such, "civil rights" can be invented, repealed, amended, altered, changed, and destroyed according to the social evolution of a society and in accordance with the governmental structure of that particular society. In a constitutional or democratic republic, therefore, "civil rights" are determined through majoritarian decisions.

What is an inalienable or natural right?

An "inalienable right" or "natural right" is a right that is founded on a source independent of government and society. It is a right with which every human being is born. The Founders of the United States were intimately familiar with "natural rights" and appealed to Providence as the creator of such rights.

"Natural rights" are nondiscriminatory. Every human, regardless of race, creed, color, gender, and yes, even sexual orientation, is naturally endowed with such rights. Western Civilization, particularly English and French political philosophy, has identified three basic natural or inalienable rights: life, liberty, and property.

Marriage: Civil or Natural Right?

Marriage originated as a private institution; it is not a government creation. For Christians, Jews, and other religions, marriage was created by God, beginning with the marriage of Adam and Eve in the Garden of Eden. For millenia, no married couple needed government approval for their marriage. Today, however, the State has interjected itself into marriage by requiring couples to obtain a marriage license.

The State's involvement in marriage creates a dichotomy of rights. Under natural law no one is born with the "right" to have a government recognize a marriage. Natural law, more specifically the right to liberty, only gives each individual the right to marry another person (who consents obviously) through a private means. Thus, under natural law homosexuals have the natural right to enter into a union through a private means with another of the same sex and can call it "marriage." Homosexuals (and heterosexuals for that matter) do not, however, have a natural right to have a State recognize their private "marriage." "Marriage," therefore, is a "natural right" in a private context, but it becomes a "civil right" only in so far as society says it is.

How does this apply to Proposition 8?

The No Crowd claims that they have a "civil right" to marry the person of their choice, but they are equating a "civil right" with a "natural right" which they do not have. Thus, marriage is a "civil right" and as such it is subject to being defined by society. Proposition 8 defined the "civil right" of marriage in California and that "civil right" may be exercised by anyone who wishes to marry one other person of the opposite sex.

When society determines that same sex marriage is a "civil right," then the No Crowd will be on solid legal and philosophical grounds, but government-endorsed marriage never will and never can be an inalienable right.