In the recent election, California voters narrowly approved a ballot initiative¹ to amend the state constitution to forbid gay marriage. One of my correspondents denounced the result as a product of homophobia. If you do the math, to have passed the initiative must have received support from at least 21% of the voters who also voted for Sen. Obama². In fact, Sen. Obama himself is opposed to gay marriage, and that had a strong influence on Black voters. If homophobia is at the root of it, then Sen. Obama and at least 21% of his California supporters must be homophobes. That is unlikely.

Further evidence is that when civil union is voted upon, Californians approve giving gays equal legal rights to those of married heterosexuals. It is not possible to reconcile that with a notion of mass homophobia. What is at issue in California is no more than use of the word marriage in a nontraditional way.

Some proponents say that gay marriage is a right, and therefore should not be a debatable issue. It should, they say, be guaranteed as equal protection under the law, and enforced by the Supreme Court as such. Is it possible that use of a word in a new way is a fundamental right? How do we know what is a right and what isn’t a right?

I will use the question to ponder the origin of rights for a bit. The Declaration of Independence held “truths to be self-evident.” In a previous post I argued that the Deist founders meant that to mean that rights could be derived by observing the nature of mankind. It is self-evident that people desire to pair up in long term relationships. Perhaps heterosexuals have not recognized that homosexuals desire to pair up as to heterosexuals, but they do.

However, government providing a legislative framework for pairing up is another question, and what the pairing up is called is another question beyond that. From the viewpoint of government, marriage is primarily a type of contract that the government recognizes as having certain enumerated privileges and responsibilities. The social implications of marriage are outside of the proper function government. I think that marriage as defined and codified by government is right for heterosexuals. Being able to pair up is a right, so a law that forbid pairing up would be a violation of human rights. However, have an official government contract recognizing the partnership is a convenience offered by government for the benefit of the citizens.

Having government recognize marriage partnerships is a good thing, but if for some reason government got out of the business in favor of having people sign a standardized marriage contract, society would not be overwhelmed by a violation of human rights. As far as I know, international human rights organizations are not upset by, say, native peoples in the Amazon not having government-issued marriage licenses. It is a useful convenience for many societies, but not a fundamental right.

The best available data is that about 4.5% of the population is homosexual. Is that enough to worry about providing the convenience a marriage-like contract? I think it clearly is, at least in our society where so much depends upon careful delineation of legal responsibilities. For example, gay people ought to be able to visit their partners in a hospital under the same circumstances as traditional married couples. California laws provide a variety of civil union relationships, such as for younger people taking care of older dependents, that conveniently codify the legalities of those relationships.

Doesn’t the U.S. Constitution guarantee equal protection under the law? Not with respect to gays and straights, only on grounds of race, religion, and ethnicity. In fact, it doesn’t guarantee equal treatment with respect to gender. The failed Equal Rights Amendment intended to change that lack of gender equality. Laws can do promote gender equality, but gender equality is not a constitutional guarantee. We have two government agencies promoting women’s health and none devoted to men’s health, and that is a matter of law and not the Constitution.

A large body of both law and tradition have been built around heterosexual marriage. This includes the precedents for divorce and child custody. I am inclined to think that law ought not be applied en masse to gay couples. The institution of gay civil union is too recent to say for sure that exactly the same rules ought to apply.

The gays who want to use the word marriage do so, I think, not to achieve equal rights, but rather to achieve equal social acceptance. If it were only a matter of equal rights, then civil union laws that provided equality would suffice. Co-opting the word is not a good way to achieve social acceptance. I do agree that civil union falls short as a description, in that it covers a variety of legally recognized relationships. Perhaps a new word can be invented or found in history that would uniquely define gay partnerships recognized in law.

I have claimed that rights are universal overarching principles governing society derived from the common nature of mankind. How do we know exactly what they are? There is no alternative but to vote upon them. Rights are designed to trump laws, so we ought to be very careful in deciding what a right is. It would, I think, be morally justifiable for, say, the United Nations to vote to invade a country on grounds of human rights abuse. (Not an obligation, but an option.) That means that extreme care ought to be taken in deciding what is a right and what should be left to laws or to society. The U.S. Constitution provides for amendment by two-thirds majority. That is an appropriate consensus for recognizing a new right.

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1. Proposition 8 (2008), Wikipedia)

2. Obama won the state with 61.1% of the vote to McCain’s 37.1% RealClearPolitics. If all the McCain supporters voted against the proposition, which is certainly a substantial exaggeration, then 12.9% must have come elsewhere. That would be about 21% of Obama supporters.