Is marriage a "fundamental" right? What *are* fundamental rights?

[Fenris]

1) I am 100% in favor of gay marriage. In Fenristopia, there would be no state sponsored marriage (which would be left to the religion of your choice) and state-sponsored civil union that any two adults could enter into. Given that the real-world is generations away from that, I totally support gay marriage on 14th amendment grounds

2) That said, a lot of gay-marriage advocates claim that marriage is a fundamental right. I'm not convinced.

3) Yes, I know that several courts have upheld that it is. I don't care.

What I'd like is some discussion about what fundamental rights are and if "the right to marry" is one*

For me, protection from illegal search and seizure, right to a speedy trial by one's peers, freedom of assembly ...these are "fundamental" rights--a society like ours quite literally can't survive without them. The right of any two people to marry? Not "fundamental" to me.

Opinions?

*Remembering again, that even if it's not, I still support it.

[Uthrecht]

Why are you against group civil unions?

I would say that coupling is a pretty basic drive in humanity, and so the right to have it recognized and protected is fairly fundamental. If you're saying that people do not have the right to marry whom they choose, it is no longer a civil liberty, to me. Is that your counter point?

[Who_me?]

1) I'm with you totally.

2) I think that if heterosexuals can marry, then gays having the same ability is fundamental. Whether marriage is a fundamental right is a different issue.

3)Agreed

[Uthrecht]

Let me clarify a bit on my point. To me, a fundamental right is one which can not be abridged. If I have a fundamental right to assembly, then as long as I'm assembling legally, I cannot have my group dispersed while another group, for another reason, is not. If I have a fundamental right to bear arms, then once and while I have complied with all laws on the matter, I can bear arms and they may not be taken from me. If I have a fundamental right to union with whom I choose, and I go through the required certification, that union cannot be dissolved, nor can anyone deny it.

If marriage or civil union is not a fundamental right, then it can be curtailed as deemed fit.

[Solfy]

Good question. According to the wiki page (which I know is not authoritative, but I neeeded a starting point):
"Some rights generally recognized as fundamental are[citation needed]:

Right to life
Right to freedom of movement
Right to own property
Right to procreate
Right to freedom of association
Right to freedom of speech
Right to equal treatment or equal protection before the law (fair legal procedures)
Right to freedom of thought
Right to vote
Right to freedom of contract"

It goes on to recognize some rights that have been legally recognized but are not specifically in the Constitution:
"the right to privacy
the right to marriage
the right to procreation
the right to interstate travel" (why is procreation in both lists?)

Based on the first list, I think marriage can be reasonably extrapolated as a right based on those fundamental rights listed in the first list, particularly freedoms of contract and equal treatment under the law.

[Who_me?]

Originally Posted by Solfy

(why is procreation in both lists?)

Because it's fun?

[Fenris]

Originally Posted by Solfy

Good question. According to the wiki page (which I know is not authoritative, but I neeeded a starting point):
"Some rights generally recognized as fundamental are[citation needed]:

Right to life
Right to freedom of movement
Right to own property
Right to procreate
Right to freedom of association
Right to freedom of speech
Right to equal treatment or equal protection before the law (fair legal procedures)
Right to freedom of thought
Right to vote
Right to freedom of contract"

It goes on to recognize some rights that have been legally recognized but are not specifically in the Constitution:
"the right to privacy
the right to marriage
the right to procreation
the right to interstate travel" (why is procreation in both lists?)

Based on the first list, I think marriage can be reasonably extrapolated as a right based on those fundamental rights listed in the first list, particularly freedoms of contract and equal treatment under the law.

Let's exclude "equal treatment" and "contract"--(I agree with those points completely)--and only focus on the second part. Is marriage a fundamental right, in and of itself?

[Solfy]

Originally Posted by Fenris

Let's exclude "equal treatment" and "contract"--(I agree with those points completely)--and only focus on the second part. Is marriage a fundamental right, in and of itself?

Does it need to be if it's already covered by broader fundamental rights? I see it as a subset.

I have the fundamental right to vote. I can vote in local elections, state elections, and/or presidential elections. The right to vote in local elections is a covered fundamental right.

I have the right to enter into contracts. I can enter into an employment contract, a real estate contract, or a marriage contract. The right to enter into a marriage contract is a covered fundamental right.

What is legal, civil marriage if not a contract between two persons listing agreed-upon rights and responsibilities of the entered parties?

[WednesdayAddams]

I have trouble with the word 'fundamental' as it applies to rights. I think rights are what you fight for and keep. They are what are granted to you by governments. The rights I have as a US citizen I would not have as, say, a French or Indian or Canadian citizen. I may have fewer or more rights were I any of those, and see any of the rights given by their governments as fundamental.

I think if you were to tell a married heterosexual couple that their marriage could be nullified by the state at any time without their consent or request they would likely disagree.

[wring]

I can't seperate "equal treatment" from "equal treatment for whats". I see no difference between "equal treatment under the law" (ie presumption of innocence), equal treatment under commerce (ie no whites only stores), and equal treatment for marriage. If marriage isn't included under 'equal treatment', what is it then? That status confers benefits under taxation laws etc. and I can't figure out how a person could be treated equally w/out access to those things.

[Muskrat Love]

I don't believe that a state-recognized civil union between two people is a fundamental human right. I don't think it would be a violation of human rights if a government decided that people were not entitled to special contracts between two people that gave them additional rights that single people did not have. I personally believe that getting rid of state recognized civil unions would have a lot of benefits and question if the benefits of having these unions outweigh the benefits of treating all people as individuals with no special rights over others (except parents over minor children). I can even see scenarios where a government might want to discourage such unions.

BUT, I do believe that, if a right is given to one group, it should not be denied to others. Since we DO have state recognized civil unions, they should be extended to all couples.

[Morgenstern]

No, marriage is NOT a fundamental right. It's clearly a privledge. Marriage is, and has always been subject to legal restrictions and qualifications. As an example, You are not free to marry a 10 year old, neither are you free to marry 2 or 3 other people. You're not free to marry within a period of time following a divorce either. If it was a fundamental right, then the states would be subject to much greater scrutiny when it legislated restrictions regarding marriage.

I think you'll find the recently announced (yesterday) California Supreme Court decision further erodes the "fundamental right" argument.
It's a privledge now and as such, it's subject to legislative control via the will of the people. The CA courts are now without power to hear such same sex marriage issue in the future. This doesn't mean the legislature is prohibited from redesigning the law if the people so desire.

The California Constitution now defines marriage as an institution between a man and a woman. The court found no discriminate against a(ny) class of citizen(s). Somewhat surprising to many legal scholars, but none the less, it's now final in CA.

But to answer the question, marriage is pretty much NOT a fundamental right, at least it's not in California. It's a privilege subject to legislative control much the same as a drivers license is.

[WednesdayAddams]

Originally Posted by Morgenstern

No, marriage is NOT a fundamental right. It's clearly a privledge.

Interesting side note: "privilege" means "private law." One set for those who can afford it/fall into the "privileged" category and one for everyone else. We have been trying to do away with it since this country was founded. It's only taken a couple hundred years but every once in a while we make leaps to get there.

Marriage is, and has always been subject to legal restrictions and qualifications.

Absolutely. Why fifty years ago people thought they should be able to marry someone of a different COLOR! Fortunately it was explained why those legal restrictions were in place against it.

As an example, You are not free to marry a 10 year old,

Because one of those people is not able to give legal consent.

neither are you free to marry 2 or 3 other people.

Because of the tax code more than anything else. It would tangle it hopelessly.

You're not free to marry within a period of time following a divorce either.

Only in certain states. In Nevada you can divorce and turn around and marry the next day. I attended the wedding of a woman I knew in the military whose divorce certificate was barely dry (four days).

If it was a fundamental right, then the states would be subject to much greater scrutiny when it legislated restrictions regarding marriage.

Much like voting for women and black people and that pesky emancipation thing.

I think you'll find the recently announced (yesterday) California Supreme Court decision further erodes the "fundamental right" argument.
It's a privledge now and as such, it's subject to legislative control via the will of the people.

Who have always shown themselves to be objective and well informed when it comes to the rights of minorities.

But to answer the question, marriage is pretty much NOT a fundamental right, at least it's not in California. It's a privilege subject to legislative control much the same as a drivers license is.

Which we should apply to heterosexual couples now as well.

[Morgenstern]

Originally Posted by MarissaW

Interesting side note: "privilege" means "private law." One set for those who can afford it/fall into the "privileged" category and one for everyone else. We have been trying to do away with it since this country was founded. It's only taken a couple hundred years but every once in a while we make leaps to get there.

A privledge = a private law? I've never heard such an argument before.

Times change. Years ago Medical science used leaches in treating disease. The legality of same sex marriage may or may not change. Not everything is dynamic.

Originally Posted by MarissaW

Absolutely. Why fifty years ago people thought they should be able to marry someone of a different COLOR! Fortunately it was explained why those legal restrictions were in place against it.

It was once illegal to participate in anal heterosexual sex too. Times they are a changing.

Originally Posted by MarissaW

Because one of those people is not able to give legal consent.

No MarissaW, it's because it's morally wrong to take advantage of a child.
I'm surprised you missed that one. Brother and sisters can't marry either, yet they are over the age of consent. Your argument fails here.

Originally Posted by MarissaW

Because of the tax code more than anything else. It would tangle it hopelessly.

Tell me you are not serious. Tax codes did not exist when the first bigamy laws were penned in the US.

Originally Posted by MarissaW

Only in certain states. In Nevada you can divorce and turn around and marry the next day. I attended the wedding of a woman I knew in the military whose divorce certificate was barely dry (four days).

My original response wasn't intended to prove the validity of any allegation, but to prove that it is within the power of the legislature to legislate with respect to marriage. That being the case, is further evidence that marriage is not a fundamental right but a privledge.

Originally Posted by MarissaW

Much like voting for women and black people and that pesky emancipation thing.

Yes, I think the courts have found voting to be a fundamental right of citizenship, not a privilege reserved for a special class(es). That is not the case with marriage, there is a distinct difference. Yet even with voting, there are permissible restrictions such as age and residency.

Originally Posted by MarissaW

Who have always shown themselves to be objective and well informed when it comes to the rights of minorities.

So, is your point is that the majority of people in a population are stupid and bigots? Pretty wide brush there Marissa.

Originally Posted by MarissaW

Which we should apply to heterosexual couples now as well.

Heterosexual couples fall within the now upheld decision of the CA Supreme Court, that is, between a man and a woman. ALL people are free to marry provided they follow the rules as they are now enacted.

Your arguments clearly fail to touch the heart of the issue, that is, whether or not marriage is a fundamental right. If you so strongly disagree then perhaps you should stop throwing rocks and throw a little substance into this discussion.

[WednesdayAddams]

Originally Posted by Morgenstern

A privledge = a private law? I've never heard such an argument before.

As I said, it was an observation, not an argument. It does mean that.

Times change. Years ago Medical science used leaches in treating disease. The legality of same sex marriage may or may not change. Not everything is dynamic.

It was once illegal to participate in anal heterosexual sex too. Times they are a changing.

Thank you for making my point for me.

No MarissaW, it's because it's morally wrong to take advantage of a child. I'm surprised you missed that one. Brother and sisters can't marry either, yet they are over the age of consent. Your argument fails here.

"Unable to give consent" MEANS taking advantage of a minor.
Brothers and sisters are not legally allowed to marry because of the chances of birth defects. Do you really believe the reasons a minor is not able to marry are the same as why close relatives are not allowed to marry? It's closer to your comprehension, not my argument that has a case of teh Phail.

Tell me you are not serious. Tax codes did not exist when the first bigamy laws were penned in the US.

I'm very serious. There is an active contingent trying to pass polygamy laws. They will never pass, not because of fine upstanding moral beings such as yourself, but because it would play hell with out tax code. There is such a thing as pragmatism, even in law.

My original response wasn't intended to prove the validity of any allegation, but to prove that it is within the power of the legislature to legislate with respect to marriage. That being the case, is further evidence that marriage is not a fundamental right but a privledge.

In that case, perhaps we should put it to the "will of the people" as represented through the legislature if we should deny the vote to naturalized citizens. As you say, voting may be a fundamental right, but it certainly can be restricted. We wouldn't want the wrong people voting, now would we?

Yes, I think the courts have found voting to be a fundamental right of citizenship, not a privilege reserved for a special class(es). That is not the case with marriage, there is a distinct difference.

I'm so glad you said that. I would have hated to continue wondering if you were really a bigot or merely looking at the situation from a different perspective.

So, is your point is that the majority of people in a population are stupid and bigots?

Many times, yes.

Pretty wide brush there Marissa.

I know. I wish I were proved wrong WRT stupidity and bigotry more often.

Heterosexual couples fall within the now upheld decision of the CA Supreme Court, that is, between a man and a woman. ALL people are free to marry provided they follow the rules as they are now enacted.

Your arguments clearly fail to touch the heart of the issue, that is, whether or not marriage is a fundamental right. If you so strongly disagree then perhaps you should stop throwing rocks and throw a little substance into this discussion.

Perhaps you'd care to go back to my first post in which I said that I don't believe such a thing as 'fundamental' rights exist, merely those we fight to get and keep and those given to us by government.

As for the rock throwing: sometimes them sanctimony bubbles, they need burstin'.

[Solfy]

Originally Posted by Morgenstern

No, marriage is NOT a fundamental right. It's clearly a privledge. Marriage is, and has always been subject to legal restrictions and qualifications. As an example, You are not free to marry a 10 year old, neither are you free to marry 2 or 3 other people. You're not free to marry within a period of time following a divorce either. If it was a fundamental right, then the states would be subject to much greater scrutiny when it legislated restrictions regarding marriage.

Voting is a fundamental right, but my 5yr old isn't allowed to vote. I'm not permitted to vote two times for the same candidate in a given election. In my state I'm not free to vote in a party's primary election if I'm not a registered member of that party, and I must register as a member within a stated time period before the primary.

Legal restrictions and qualifications don't make something a privledge.

[Morgenstern]

Originally Posted by Solfy

Voting is a fundamental right, but my 5yr old isn't allowed to vote. I'm not permitted to vote two times for the same candidate in a given election. In my state I'm not free to vote in a party's primary election if I'm not a registered member of that party, and I must register as a member within a stated time period before the primary.

Legal restrictions and qualifications don't make something a privledge.

But they do create classes of citizens who can partake of that particular activity. Voting has restrictions such as age, residency, sanity, etc. The more something falls into the category of a fundamental right the higher the degree of scrutiny legislation regarding that activity will face. The right to vote is probably a fundamental right of citizenship (in the US).

Denying a 7 year old a pilots license would result in far less scrutiny than denying that same child the right to go to school. It's a matter of whether or not there is a right involved. My point is that, given the recent SCOC ruling, I believe same sex marriage is NOT a fundamental right, at least, not in California.

[Uthrecht]

Originally Posted by Morgenstern

My point is that, given the recent SCOC ruling, I believe same sex marriage is NOT a fundamental right, at least, not in California.

I would say that it is not legally a fundamental right in California, just as voting did not use to be a legal fundamental right, as it could be abridged in so many ways. This does not necessarily mean that it is not ultimately a fundamental right, or shouldn't be viewed legally.

Also, I'll agree with you: if it's a legal fundamental right, then siblings, or adult children and parents should be allowed to marry as well.

[Solfy]

Originally Posted by Morgenstern

But they do create classes of citizens who can partake of that particular activity. Voting has restrictions such as age, residency, sanity, etc. The more something falls into the category of a fundamental right the higher the degree of scrutiny legislation regarding that activity will face. The right to vote is probably a fundamental right of citizenship (in the US).

So what you're saying is that higher levels of scrutiny and legislation are an indication that an issue is most likely a fundamental right.

So how does that jibe with this:

No, marriage is NOT a fundamental right. It's clearly a privledge. Marriage is, and has always been subject to legal restrictions and qualifications.

and this:

It's a privledge now and as such, it's subject to legislative control via the will of the people.

Where you appear to argue that the fact that it is subject to legal restrictions is an indication that it is not a fundamental right? You can't have it both ways.

[Uthrecht]

Well, I wouldn't use the current state of the law to decide whether or not something is a fundamental right. Considering that the right to vote is considered a fundamental right, yet women legally could not vote for over 100 years of the US's history.

And further on that, the government can limit voting by age, so limiting marriage by age would not impinge on that fundamental right, in my opinion.

[Uthrecht]

Okay, I see good faith has gone out the window. Close the door when you're done with the thread.

[Muskrat Love]

Even if it is a privilege and not a right, it's wrong to deny the privilege based on things like orientation, race, or gender. Not many people would argue that being able to drive a car is a right instead of a privilege, but who would stand for a law that prevented Hispanics from driving (aside from my wife)?

[Morgenstern]

And I'm not arguing with that fact Badtz. I'm just presenting my opinion, with a little support, that marriage is not a fundamental right. At least, I believe the California Constitution does not provide that same sex couples may enjoy the same marital rights as heterosexual couples. That provision was just upheld by the SCOC. Needless to say, there have been many legal scholars who have spoken on the issue since the ruling came down. Many of them believed marriage was a fundamental right and that the court's 6 to 1 ruling was in error.

However, in CA, the Supreme Court has ruled, and it is what it is.

[Muskrat Love]

Minors who otherwise would not be able to enter a legally binding contract are allowed to marry in the US in some states, under certain circumstances. In some states, some legal adults cannot marry without parental permission.