Re: BreakPoint – 8/1/2008 – “A Civil Right to Gay Marriage” – Regis Nicoll

Nicoll errs when he fails to see distinction between biblical marriage (or whatever you want to call the marriage for procreation and family raising) and legal marriage (the license issued by the state and granting certain joint civil rights).

Let’s assume that biblical marriage is a natural right and non-biblical marriage is not a natural right. That leaves open the question as to whether non-biblical marriage should be a civil right.

As Nicoll admits, “Civil rights are legal privileges granted by the State to promote the common good of the governed”. What kinds of rights fit that description? Based on one of the three “civil rights” Nicoll cites (right to drink alcoholic beverages) I think he really should give some more thought to his definition of “common good of the governed”

I would assert that government should recognize as civil rights those actions that do no material harm even if they do not materially contribute to the common good of the governed. I think this is the brand of reasoning that would make the consumption of alcohol a right if anything will. Government should interfere with individual freedom only to the extent that is needed to promote the common good, and if something is not harmful it ought to be allowed, that is, anything that is not harmful to society should be a civil right. Debate over what level of harm makes an act not a right is another issue not relevant to this particular discussion.

Most do consider biblical marriage (heterosexual marriage for the purpose of procreation and family raising) a natural right.

Most people consider heterosexual non-biblical marriage entered into for reasons other than procreation and family raising a right. Many heterosexual couples marry because they love each other and want to spend their life together in a monogamous relationship. Perhaps they cannot have children for medical reasons. Perhaps they fear they cannot raise children because of economic, physical, or other limitations. Perhaps they fear that the pattern of their own mistreatment as children by their parents might be repeated by them on their own children. For whatever the reason, society recognizes that such marriages do no harm to it and grants the right for heterosexual couples to enter such marriages.

In the past (even in our own country) restrictions have been placed on the right of heterosexual marriages. But those restrictions such as limiting heterosexual marriage to partners of the same race have been stripped away, perhaps because heterosexual marriage was seen as a natural right but more likely because society recognized that such mixed marriages are either good for society or, if not a positive good, certainly do no harm.

Inevitably we will recognize that although homosexual marriage is not a natural right, whether or not it contributes to the common good is not material because in the long run, recognizing homosexual marriage actually does no real harm, and thus should be allowed by the state. My apologies to those who are upset by the thought of homosexual marriage, but like some people’s problems with marriages of mixed race or mixed religion, or even with childless marriages, protecting you from the pain of your own prejudices is insufficient reason to interfere with the free choice of others.

I think it is quite appropriate that religious institutions are allowed to restrict marriages performed under their jurisdiction to heterosexual couples of the same religion or religious denomination, especially if their sacred traditions explicitly disallow other types of marriages --- freedom of religion and all that. But I think that homosexual marriage has as many advantages and as few disadvantages to society as non-biblical heterosexual marriage and as such, should be considered a civil right.

I like to distinguish ceremonial marriage from civil union. A civil union is a government recognized “legal contract” between two persons that grants them specific civil rights, the right of inheritance perhaps being of most significance. Ceremonial marriage, on the other hand, is a “social contract”, granted and recognized by non-government social organizations (primarily but not necessarily religious) with no inherent legal rights. I have no problem with attaching the rights of civil union to ceremonial marriage, but I do have problems when the rights of civil union are restricted by qualifications imposed on ceremonial marriages by non-government institutions.

Government should be involved in the business of civil unions, open to any two persons of sufficient maturity, who want to spend their lives together in a single “family” regardless of any other characteristics they may have. Government should not be involved in ceremonial marriage, a social institution in of itself granting no legal benefits, other than by granting civil union rights to ceremonial marriages..