June 5, 2015

No Fundamental Right to Marry? - A Response to Adam Seagrave

Today, S. Adam Seagrave publishes an article at The Public Discourse in which he deals with the claim by "commentators on either side of the ongoing marriage debate" that individuals possess a "fundamental right to marry." Seagrave argues that it will be surprising that a 1923 Supreme Court case, Meyer v. Nebraska, "represents the first notable appearance of the 'right to marry' language in the American political tradition or its antecedents in liberal political philosophy." 

He argues that:
The idea of a fundamental right to marry—not just someone of the same sex, but anyone at all—is a relatively new one. Among those who didn’t think anyone—not just homosexuals, but heterosexuals as well—possessed such a right are John Locke, Thomas Jefferson, James Madison, and Abraham Lincoln, to name only a prominent few. 
The distinction between a good and a fundamental human right, Seagrave argues, are that rights "follow from the fact of individuals’ self-ownership or human dignity and not from their desires, however legitimate these might be." For example, he notes that staying alive and receiving a million dollars are both legitimate desires, but only the former involves a fundamental human right. Fundamental rights are limited to "life, liberty, and property...because these things are intimately connected with our self-ownership."

Marriage is different, argues Seagrave, because it, like an example he uses of world peace, "pertains to a relationship between individuals rather than to any individual in particular." Fundamental rights, which Seagrave distinguishes from "constitutional rights [or] legal rights"..."derive from the self-ownership or human dignity of individuals and therefore can only pertain to individuals." Therefore,  "[m]arriage cannot be included within the Fourteenth Amendment’s idea of liberty, because it is not a possible object of individual action at all, only of joint action with another."

I have various niggling issues with Seagrave's argument. One of which is that Seagrave does not seem to flesh out why, if he is intent on distinguishing "fundamental rights" from "constitutional" or "legal" rights,  his post seems to reference a need for correction to constitutional interpretation. Another is that I would like to see further development on the idea of individual rights versus the collective references in the Constitution - the right to free assembly, rights reserved to states, freedom of the press, and so on. "Freedom of religion," taken as an individual right, would seem to play into the argument that, being individual only, corporate religious norms (such as those practiced by Hobby Lobby) would seem to fall before the claim that no group can have a religious identity and, as such, religious freedom. Moreover, I wonder about the implications this has for contract - if there is no "right" to enforcement of contract, as it too is a relationship between or among people... 

However, my biggest issue is the interpretation of fundamental rights as pertaining only to individuals, and not to groups, especially in regarding marriage. I have already indicated my discomfort with Seagrave's (likely) framing of things like a "right to assembly" and "freedom of religion" in individual terms; I have quibbles with his philosophical claim that, categorically, marriage must be excluded from fundamental rights because of its status as a "relationship."

At the roots of Seagrave's formulation sits "no-fault divorce." In the past (apologies for the broad signifier of "the past"), divorce was granted only on a showing of some fault on the part of one party or the other. Example included abuse, adultery, abandonment, and other, similar, occurrences. This was true in colonial and post-colonial America. Based on Seagrave's thinking, the move to no-fault divorce was necessitated by a limitation of fundamental rights to individuals only - there can be no right to stay married, especially when one partner desires to terminate the marriage, for that is a relationship, and therefore, not fundamentally pertaining to an individual who wishes to stay married against the others' wishes.

Moreover, I must wonder what will happen to the idea that parents have a right to parent their children, or that children have a right to be raised by parents. This, too, is a relationship, established by biology or law (in the case of adoption), and proven again and again to be critical in the life of a child. That said, I am not sure how one goes about defining the rights of children. Under Seagrave's formulation, it would seem like a child has no right to being raised by biological parents, or parents a right to parent their children. This is a right, too, that has been established in Supreme Court cases, and has proven a bulwark, and may again, against incursion by the State into the arena of the family without great cause and need.

I believe there is an older tradition - one which was ignored by Locke and those that followed him in the liberal tradition. This "natural law" tradition incorporates not solely the individual as an object of right and dignity, but relationships among individuals; society and man as a social animal. In his extremely important work The Decretum, Gratian states:
Natural law is common to all nations.  It has its origins in nature not in any constitution. Examples of natural law are the union of men and women, the procreation and raising of children, the common possessions of all persons, the equal liberty of all persons, the acquisition of things that are taken from the heavens, earth, or sea, the return of property or money that has been deposited or entrusted. This also includes the right to repel violence with force.
These ideas did not originate with Gratian - here, he strongly echoes (copies?) the Etymologies of St. Isidore of Seville (c. 615-630) - nor do they stop with him. St. Thomas Aquinas and others pick up the idea of marriage as a natural (and divine) institution. St. Thomas, in his Summa, argues:
At the commencement of the Digests it is stated: "The union of male and female, which we call matrimony, is of natural law." Further, the Philosopher (Ethic. viii, 12) says that "man is an animal more inclined by nature to connubial than political society." But "man is naturally a political and gregarious animal," as the same author asserts (Polit. i, 2). Therefore he is naturally inclined to connubial union, and thus the conjugal union or matrimony is natural.
Further, the Church carried this idea up through the centuries, with (for instance) Pope Pius XI stating in Casti Connubii:
To take away from man the natural and primeval right of marriage, to circumscribe in any way the principal ends of marriage laid down in the beginning by God Himself in the words 'Increase and multiply, is beyond the power of any human law.
And thus, in the issue of marriage and of bearing children, comes the very sword of modern rights jurisprudence. According to the philosophers and theologians, even among the ancients, but also in the history and tradition of the Church, marriage and begetting of children are among the most basic of rights, included among the rights of self-defense, of bailment, and of acquisition of property by labor. Locke and his followers, generating the modern liberal tradition, reduced any corporate rights to secondary status, seeing only an individual and the State. I believe this was itself a categorical error - the reduction of human flourishing to individual pursuit; the reduction of mankind's status as a social animal, desiring to live in society, to homo economicus, of whatever stripe, an individual with certain inalienable (individual) rights, but none pertaining to his status of an animal that desires friendship, love, and companionship.

And, so, yes, I do believe that there is a "right" to marry, arising out of the natural order of things - out of human nature. Unlike modern right, however, this right exists circumscribed by nature and by revealed law, and, so one may not shout fire in a crowded theater, nor retain property of another without gift, so the right to marry must be and is limited to a male and a female.

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