Marriage and Civil Rights

· Logos/Ethos

 March, 2010

            In November, a majority of California voters chose to deny the minority of citizens a right which the majority enjoys. The right in question, of course, was the right to marry. The majority of voters decided that only heterosexual couples possess this right. America’s founders would have been stunned to see such a referendum process take place.

            This is not to suggest that our founders favored gay marriage. Their opinions are unknown to us and irrelevant. What we do know is that the founders would have shuddered at the thought of one group of citizens voting on the rights of another.  In Federalist #10 James Madison warned of the dangers caused by “factions” – large groups of citizens, even a majority, who would use their numbers and power to deny rights to a minority. This condition came to be known as “the tyranny of the majority”. For this reason, the founders chose to create a republic rather than a pure democracy. They believed that elected representatives of the people would be far less likely to act on their “passions” than would the people themselves. The effect of having representatives would be “to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”

            In 1954, in Brown vs. the Board of Education, the Supreme Court decided that “separate but equal” education for Negro children was unconstitutional. Thurgood Marshall argued successfully that the fact that Negroes had to be kept separate from whites was in itself evidence of their unequal treatment. Imagine what would have happened in 1954 if school integration had been a referendum issue. Would a majority of Americans have supported full integration?  Not the America that I knew in 1954. Would America be as racially enlightened as it is today, as sensitive to human and civil rights as it is, had the people decided and not the court?

            Where do our rights come from? Are they granted to us by the state or some other higher authority?  Fortunately for America, our founding took place during the Enlightenment, an era whose central concerns included these questions.  The answers are found in the Declaration of Independence and dozens of equally revolutionary books and essays which were widely read here and in Europe in the 18th Century.  More recently, they are found in the Universal Declaration of Human Rights, approved by the United Nations in 1948.

            Human rights are found in human nature. As such, they cannot be alienated or separated from us. As long as one is human, one possesses human rights. Furthermore, they are universal; all human beings, no matter what their conditions or how they conduct themselves, possess them. And according to Jefferson and others, the primary reason we create government is to protect these rights.

            No institution or individual can take our rights from us because they are unalienable. They can, however, violate our rights, which they often do. It is critical to see the distinction between “taking” rights and “violating” them. For example, it would be inaccurate to say that African slaves did not have rights in this country prior to the Civil War. In reality, they had the same rights that white Anglos had – human rights. Those rights were, however, cruelly violated. African-Americans did not “receive” their rights after the Civil War or the end of Jim Crow. They were, more accurately, acknowledged and declared by means of more just laws and changing social attitudes.

            The current controversy is who has the right to marry?  Is it a human right? A civil right?  It is an important question. In California, a majority of people believed that gay marriage would threaten social order. A minority of people believed that allowing homosexuals to marry would enable them to pursue happiness in the same manner as heterosexuals. Should the citizens vote on it? Or should the courts or the legislature? The founders knew.

            The question “Is Marriage a Civil Right?” will be explored at Cape Lyceum, a monthly lecture series sponsored by the New Enlightenment Institute. Kris Mineau, President of the Massachusetts Family Institute, will debate Rev. Erik Walker Wikstrom, a Unitarian Universalist minister and author. The event will take place at 7 P.M., January 12th at the Cultural Center of Cape Cod in So. Yarmouth.  Following the debate, there will be an audience participation period. Admission is free, but a donation is gratefully accepted.

            We hope you will join us in this public discussion of a topic whose core idea, human and civil rights, is relevant to every citizen.