Our Rights

As a gay man, it would stand to reason that I would be infuriated with the people of California and Arkansas for voting to limit my (potential) right to get married (by virtue of Proposition 8, in California) or adopt/foster children (by virtue of Act 1, in Arkansas). The logic here is that my particular, group-related, identity-based interest should drive my infuriation. But this is not the case. Something much larger and much more important than my particular rights is at stake.

The first point I would like to make, briefly, is that although Proposition 8 and Act 1 were enacted by voters in states as disparate as California and Arkansas, and deal with separate issues, they are deeply interconnected. I will return to this below.

The trouble in both California and Arkansas is that the will of the majority has trumped respect for basic human rights. But shouldn’t the interest of the many outweigh the interests of the few? In some cases, yes. But we do not live in a democracy—we live in a liberal democracy. As any of my students will tell you, the adjective “liberal” does the heavy lifting in the concept of “liberal democracy.” When the will of majorities and the basic rights of individuals conflict, fundamental rights of minorities trump the majoritiarian will. While very few rights are absolute, the reasonable limitations we place on rights ensure that we do not pit individuals and their rights against one another. Limitations are not to be used to exclude whole classes of people from their enjoyment. Our federal Constitution includes basic enumerated rights within its many amendments, and protection of these rights take precedence over statutory law—at the federal or state levels. But our Constitution does not enumerate a right to marriage. Issues surrounding defining and placing (reasonable, constitutional) limitations on marriage are left to the States. So is there a basic, fundamental human right to marriage?

This is an interesting question. Marriage is an institution whose meaning is socially constructed. This means that social and cultural variations attach to the institution. Those “meanings” are particular, not universal. If marriage is so contingent, how could there possibly be any universal “right” to it?

In 1947 and 1948, the drafters of the Universal Declaration of Human Rights struggled with this question. They included such a right in Article 16 of the Universal Declaration, guided in particular by the scourge of Nazism—the Nuremburg Laws which forbade Jews from marrying non-Jews and allowed the Nazis to legally separate families. Therefore, according to the Universal Declaration, the right is not to be limited by race, nationality or religion.

But there are limitations. Spouses must be “of age.” Those entering into marriage must equally and freely consent to the marriage. The Universal Declaration, therefore, recognizes that the traditions of a society—no matter how deeply embedded in the culture, no matter how large the majority supporting them—are outweighed by the rights of individuals who wish to enter into marriage.

Now…who can get married? The Universal Declaration specifically uses the words “men and women.” One might argue that, therefore, the right to marry is limited to heterosexual couples. This would require us to project our contemporary concerns back into the past—a presentist fallacy. The terms “men and women” reinforced the contention that the parties to a marriage be adults, not children. In addition, the article does not recognize the right of “men and women” to “marry one another.” The emphasis is on the word “and”—that the right was to be enjoyed on an equal basis by men and women. There is nothing to suggest that they used the terms “men and women” in order to exclude same-sex adults.

Now, lest someone suggest I’ve gone way too far, I will admit that I seriously doubt that the thought of same-sex marriage would never have crossed the drafters’ minds—even Eleanor Roosevelt’s. However, does that mean that, had they considered it, they would have used that language to exclude same sex couples from the right? Of course, that’s impossible to answer. However, the Universal Declaration never meant to be frozen in its own time. It was meant to be a living, organic statement of universal principles—in the words of its preamble, “a common standard of achievement for all peoples and all nations.” Standards change over time, and the drafters were well aware of this. New rights might be included as societies and states progressed. After all, none of the Enlightenment philosophers who first enumerated “natural rights” spoke of a right to social security. In addition, the concept of universal rights meant that rights previously held only by the privileged few would be extended to larger groups of people—that who was considered “human” would grow. The idea that “peoples,” through democratic processes, would seek to limit basic, universal rights certainly would have been anathema to the drafters of the Declaration. Yet this is the outcome that Proposition 8 and Act 1 have achieved.

In the United States over the past few decades, the extension of “direct democracy” by ballot initiatives and referenda has slowly replaced our older ideal of republican government—that is, democratic government through responsible, elected representatives whose duty it is to effectively balance majoritarianism and individual rights and liberties through a process of reasoned deliberation. This recent “democratic impulse” is, I believe, a symptom of Americans’ overall dissatisfaction with, if not hatred of, government. “Let the people decide!” is a popular sentiment. But this trend has distracted us away from the liberal democratic ideals that have developed through our amended Constitution—where the balance between “liberal” and “democracy” must always favor basic rights. This trend concerns me deeply.

What makes universal human rights meaningful is the principle of equality. Equal rights emphasizes the rights-holder rather than the right itself. Universal human rights foster recognition of the “self-in-other” that is the basis of human freedom. For some reason, however, Americans have a difficult time seeing the “universal” in rights, and focusing on the “particular.” “I have a right!” Americans tend to view rights as a kind of privilege—the right to exclude others from what I have a right to enjoy. When we place fundamental questions about who should have rights before the public on a ballot, we get into potentially dangerous territory. The question of who has rights should never be “sold” to the highest bidder through a process of pitting groups and their particular interests against one another on issues of basic fairness and justice. That, to me, is the antithesis of the liberal democratic ideal and a sign of political laziness.

The question of marriage and family are deeply intertwined. The third clause of Article 16 of the Universal Declaration, which I discussed above, states that the family is the “natural and fundamental group unit of society and is entitled to protection by society and the State.” The drafters intended thwart both the tyranny of social “tradition” and totalitarian states. Families are group units formed by free individuals who have a right to form families of their own choosing: no arranged or child marriages; no determining of the number and spacing of children; no denying people of one race from marrying people of another; no forcible separation of families.

Tyrannies can be of one, of a few, or of many. That we would allow democratic processes to be used to deny individual, fundamental, universal human rights is a repudiation of our fundamental liberal democratic tradition. It is deeply un-American.

It would stand to reason that my concern about Proposition 8 and Act 1 stems from my particular interest as a gay man. After all, my particular rights have been curtailed (or denied). Nevertheless, I am more deeply concerned as a human being and an American citizen. Our fundamental human rights should never be sacrificed on the altar of democracy.

(Originally published in the Hendrix College Profile, December 2008. Reposted with permission).

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~ by de cive on December 31, 2008.

5 Responses to “Our Rights”

  1. Кстати, если закончаться фото Одри, то можешь в фотошопе старые фото накладывать на новый фон, так и разнообразие будет и ты работать продолжишь

  2. Супер статья!

  3. Отлично написано. Позитива конечно не хватает, но читал на одном дыхании

  4. Очень познавательно. Спасибо.

  5. I enjoyed this. It also made me think of the new Arizona law and that my concern about it stems from the same concern about what it means for our Democracy.

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