I recently read an article in which the author, Conor Gaughn, asserts that homosexuals in many states across the country are being denied “the fundamental human right to marry”.1 Whether or not one is sympathetic to the overarching spirit of Gaughn’s view, the veracity of his claim can be assessed only if we first understand what it means for something to be a “fundamental human right.” Given my understanding of what it means for something to be a right, and a fundamental right in particular, I contend that no person—gay or straight—possesses a fundamental right to marry. I shall now explain how I understand the notion of rights, making it clear precisely why marriage cannot be a fundamental right of anyone.
What are rights? I am talking here of what might be deemed natural rights, not legal rights. Legal rights exist only within a certain framework, namely one in which laws (of a certain political sort) exist. Natural rights exist independently of political structures. Some natural rights may be context-dependent—parents might hold certain rights pertaining to their offspring, for example, whereas those without children do not possess those rights or possess them only in potentia. But natural rights do not entail the existence of any particular legal rights, nor vice versa. In order for something to be a legal right, it must be decreed by a sovereign, a governmental institution, or some kind of political authority. Natural rights exist by nature. If you are a human, then in virtue of being a human, you possess any natural human rights that exist. Because legal and natural rights come about in different ways, legal rights may or may not be in harmony with natural rights. When legal rights and natural rights diverge, social unrest can result. Many view the tumult surrounding same-sex marriage in today’s society as a consequence of such divergence. Segregation and slavery provide historical examples of the discord that can sometimes exist between natural and legal rights.
Again, what are rights (in the natural sense)? I believe all claims about (natural) rights can be reduced to claims about morality. In essence, to say that someone has a right to x is to say that it is morally wrong of anybody else to prohibit that person from x-ing. Perhaps there is more to it than that, but I believe all rights claims say at least this much. Now, not every instance of immoral behavior is an instance of infringing upon a person’s rights. It may be immoral to fantasize about murder (is it?), but it isn’t clear that fantasizing about murder tramples upon anyone’s rights. Even so, claims about rights tend to be moral claims. Perhaps they are moral claims of a very special kind. Maybe claims about rights are strong or adamant moral claims, such that to say “it is Sally’s right to x” means something like “it would be very wrong to prohibit Sally from x-ing” or “only in the most extreme circumstances would it be morally permissible to disallow Sally’s x-ing.” I think this view is more or less correct. Consider the right to life, which many take to be a natural right of human beings. We certainly feel it is very wrong to deny someone of life, and we certainly feel that to deprive someone of life is morally permissible only in the most extreme circumstances (such as when that person threatens to take your life or do even more egregious harm). Thus, I believe I have captured something correct about how we think about rights, even if such thinking is not generally made explicit.
What of fundamental rights? As I see it, fundamental rights just are natural rights. I believe the terms are interchangeable, and in fact synonymous. I am not sure we use them in the exact same way, but I think they amount to the same thing. What else could a fundamental right be other than a natural right? What else could a natural right be other than a fundamental right? Consider again the right to life. Once we grant that the right to life is a natural right, it seems to me there is no longer any question as to whether or not it is a fundamental right. It plainly is. Could it be both a natural and a fundamental right? I am not sure anything is gained by claiming it is both, rather than that we can identify it as belonging to one and the same category of rights by using two different descriptions. I remain open to the possibility that a subtle distinction exists between fundamental rights and natural rights, but I feel quite confident that the former are always a subset of the latter. Thus, if I can show that marriage is not a natural right, we can immediately dismiss the notion that it is somehow a fundamental right.2
I said earlier that natural rights entail nothing about legal rights. This is true. One can have the natural right to life, and yet in some bizarre culture or anarchistic society, one may not have the legal right to life. Murder may be legally permissible. Hence, the natural right can exist where the legal right does not. Might it yet be true that a person can have a natural right to having a legal right? The idea is very strange, and it may be easier to approach it first in the opposite direction. That is, let us first consider whether a person can have a legal right to having a natural right. What would this mean? Well, let us suppose that a sovereign has decreed that all of the citizens under his rule are legally entitled to having the right to life. Notice that the sovereign has not yet decreed that the citizens have a legal right to life. He has decreed only that they have the legal right to holding the natural right. Question: does the sovereign’s decree enable any of his citizens to have any natural right that they didn’t already have? Does the decree give any citizens even a shred of choice in the matter as to whether or not they have the natural right to life? The answer to both questions is ‘no.’ Now, suppose the sovereign had judged differently and declared that it is illegal for his citizens to hold the natural right to life. Could this decree make any difference as to when, why, where, or how the natural right to life is held by the citizens? Again, the answer is ‘no.’ If the sovereign makes any decree whatsoever concerning the legality of holding a natural right, he does nothing more than express his willingness to subjugate his people. Making the choice between legally allowing and legally prohibiting the possession of a natural right is tantamount to deciding whether or not a citizen may be punished arbitrarily. And this is because no matter what a law purports to make the case, natural rights can be neither prescribed nor proscribed.
Let us return to our former question. Can a person have a natural right to having a legal right? As it turns out, this is an equally strange thing to imagine. It supposes that in virtue of one’s being a human being, a government structure should exist that enacts certain kinds of law to protect that person. To be sure, in most cases, the existence of such a structure may be ideal. But that is not what is being claimed when one asserts that a person has a natural right to having a legal right. What is being claimed is that a person possesses a natural right for a certain type of governmental structure to exist. This strikes me as a mighty tall order for a natural right. Suppose there is a planet somewhere on which a single human being resides. Presumably, there would not exist on this planet any of the laws with which we are presently concerned. In other words, there would be no legal rights on this hypothetical planet. Yet if human beings have a natural right to hold certain legal rights, then the non-existence of a government system on this planet would ipso facto violate the lone resident’s natural rights to hold those legal rights. It wouldn’t matter that legal rights are entirely unnecessary and useless, given the person’s solitary existence. It wouldn’t matter that the existence of legal rights would not, and could not, make one iota of difference as to how this person either can or does live, given that he is alone. The scenario is such that if humans have natural rights to hold certain legal rights, then the planet’s only human being is entitled to some sort of political system that legally recognizes certain of his natural rights—even if that person is, always has been, and always will be by himself. Because the required system is not in place, this person’s natural rights are automatically infringed. That is the consequence of the view that one can have natural rights to holding legal rights.
The problem with the proposed view is that something non-natural cannot be among the natural features of a thing. If something is non-naturally occurring, then whatever else it may be a part of, it counts only as a non-natural feature of that thing. Allow me to illustrate. It cannot be a part of the nature of grass that it gets cut by Toro brand lawnmowers. Even if every blade of grass in the world were regularly trimmed down by Toro brand lawnmowers, it would not change the nature of grass. At best, it would influence our concept of grass, such that we invariably associate grass with Toro brand lawnmowers. We may even think that grass should be cut by Toro brand lawnmowers, and we may yet think of grass merely as “green stuff that gets cut by Toro brand lawnmowers.” But we would be wrong to think that what is natural to grass is that it gets cut by Toro brand lawnmowers, as if the mere existence of grass is enough to guarantee that it will be trimmed by a Toro brand lawnmower no matter what else is true about the world. For similar reasons, casinos are not a part of the natural landscape of Las Vegas, cruise ships are not a natural part of the ocean, and corduroy pants are not a natural part of human existence.
Applying this to the issue of rights, a natural right cannot pertain directly to something non-natural. The term “directly” is of the utmost importance here, but I will return to that in a moment. First, let us recognize that laws of the kind we have been discussing—the kind that can be said to imbue someone with legal rights—are themselves non-natural. They do not occur naturally. They are human-made. Natural rights, on the other hand, occur naturally. They are a natural feature of certain naturally-occurring entities in the world (e.g. human beings). As natural rights, they cannot pertain directly to the legal—and thus non-natural—domain. Recalling the tie between rights and morality, it cannot naturally be the case that it is morally wrong to deny someone of something non-natural.
Some may think there are clear cases in which a person’s natural rights have been violated by denying that person something non-natural, and some may consider these cases to be counterexamples to my view. Take Rosa Parks. When Rosa Parks famously refused to give up her bus seat in December 1955, some might think that by her remaining seated, she stood up for her fundamental right to sit in the foremost section of the bus. Few of us would reject this assessment of Rosa Park’s behavior in casual conversation, but literally speaking, it is not quite accurate. Human beings aren’t born with the right to sit in the foremost section of a bus. Cavepersons didn’t have the right—natural, legal, or otherwise—to sit in the foremost section of a bus. Buses didn’t exist, so neither could the right. Likewise, if the day should come that buses are no longer found upon the earth, it will not be the case that the natural rights of every human being in existence are being violated in virtue of the fact that those people can no longer sit in the foremost section of a bus. The same thing can be said of marriage. Marriage is non-natural; it is a socially- (if not politically-) constructed institution that does not occur without purposeful human intervention. Thus, there cannot exist a natural right to marry. Whether you believe that Adam or Swamp Thing was the first human being on the planet, this human being did not show up with a natural right to marry. Marriage did not yet exist. It cannot be morally wrong to deny someone of something that doesn’t exist, and so it was not morally wrong for Adam or Swamp Thing to be denied marriage. Even if Swamp Adam and Swamp Eve climbed out of the sludge at the exact same moment, they did not come fully equipped with all the bells and whistles of a natural right to marry. It makes no sense to speak of their right to marry if marriage itself did not yet exist. And yet, if the right to marry were a natural or fundamental right of human beings, then Swamp Adam would have had it. He couldn’t have avoided it. The right would have come naturally.
There is something yet to be said about natural rights and non-natural, social institutions. Don’t natural rights bear on how we should treat other people, even when our interactions with those people take place within a non-natural system or setting? Absolutely, which is why I denied only that natural rights apply directly to the non-natural. Rosa Parks may not have possessed a fundamental right to sit in the foremost section of a bus, but this doesn’t mean that her natural rights weren’t being violated in some manner or another when she was instructed to move to the back of the bus. As I and many others see it, it is morally wrong to discriminate against another in an arbitrary or irrelevant fashion. That is, it is morally wrong to treat two beings differently if there is not some relevant reason for doing so. I would go so far as to say it is a fundamental human right not to be discriminated against in this way. If I am correct, then we can make sense of how fundamental rights play into Rosa Park’s decision to remain seated. When the bus driver told Rosa Parks she had to change seats, it was because of her skin color. But the color of a bus passenger’s skin has no bearing on the operation of the bus. The bus can work equally well, regardless of what skin color its passengers have and where those skin colors get dispersed within the bus. To deny Rosa Parks a seat in the foremost section of the bus because of her skin color is not to infringe upon her natural right to sit in the foremost section of the bus. Instead, it is to infringe upon her natural right not to be discriminated against in an arbitrary and irrelevant fashion.
There may be, and undoubtedly are, similar concerns when it comes to same-sex marriage. The issue is a moral one, not because human beings possess a fundamental right to marry as Gaughn would claim, but because there is a genuine possibility that a certain group of humankind is being discriminated against in an arbitrary and irrelevant manner. Those who want to forbid same-sex marriage must make it clear why such a prohibition is not arbitrary, if they wish for their goal to be regarded as a morally upstanding one. I put this on the table without taking a position on whether or not such an argument can be made successful. For now, I can say only that whether you are gay or straight, I do not believe you have a fundamental right to marry.
2 If there is a difference between fundamental rights and natural rights, it might be that the former are less context-dependent than the latter. Perhaps fundamental rights are natural rights of all humans, regardless of circumstance. If so, then maybe parental rights are natural rights in that they are naturally occurring, and yet they are not fundamental rights in that they do not belong to all humans everywhere at every time. I believe this theory ultimately collapses, as any natural rights associated with parenthood can be regarded plausibly as fundamental parental rights. The distinction between fundamental rights and natural rights then seems empty.