Same-Sex Marriage and Individual Rights

The United States government was founded on the principle of protecting individual rights.  The Declaration of Independence says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights…”  People have rights as individuals, and do not derive their rights from being a member of a group.

The United States Constitution reaffirms this, saying, “No title of nobility shall be granted by the United States,” preventing some citizens to be designated as royalty and others as commoners, as was the case in Britain. In principle, individuals do not gain rights, nor lose them, because they are members of a group.

In a more modern context, the idea that rights are individual rights lays a foundation to oppose policies like affirmative action which gives people rights based on membership in a group.  Supporters of affirmative action would argue that President Obama’s children deserve special consideration that my children do not, because of his children’s race.  The president’s children would not get the special consideration affirmative action now gives them if the law considered them as individuals rather than as members of a group.

I use this example of affirmative action to illustrate the difference between individual rights and rights accorded to people based on group membership, like royalty in Britain, or racial minorities in the United States.  The example also illustrates that while the views I express are based on the principle that all individuals should have the same rights, not everybody agrees with this, and supporters of affirmative action are an example.  I accept the principle that the law should treat everyone as individuals and not as members of a group, and consider the implications for same-sex marriage.

If the government protects individual rights, then government should have nothing to say about marriage.  Marriage is a contract between two people, and if the contract is entered into voluntarily, the law should recognize and enforce it.  What those people call the contract is irrelevant.  If they want to call it marriage, or domestic partnership, or anything else, that should be up to them.  Marriage, as such, should be no business of the state.

In today’s United States, it is the business of the state because marriage accords special privileges (and sometimes costs) to those who are bound by a marriage contract.  In one case now before the Supreme Court, a woman is liable for estate taxes on her deceased partner’s estate, because her partner was another woman; therefore, the government did not consider them to be married.  Federal income tax laws also provide differential rates for married versus single taxpayers.  These are but two examples of the way current law treats people differently based on their membership in a group — in this case, as a married couple — than it treats others who are not members of a group.

If the government provides differential rights to people based on their contractual status with others, a government that protects individual rights should not discriminate against people because of their gender.  If a man and a woman can contractually form an agreement that provides them with certain benefits, two people of the same gender should be able to enter into the same contractual arrangement.  Government violates individual rights by failing to recognize same-sex marriage.

Part of the issue is that the contractual arrangement is called marriage.  One way to remove that emotionally-charged element from the debate would be to drop the term marriage and replace it with domestic partnership.  Marriage would be one type of domestic partnership, but people could enter into others, and have the same privileges and obligations as people we now call married.  The law would recognize domestic partnerships, but would have no opinion on whether people were married.  This is semantics, to be sure, but it would avoid government determination of who is, or is not, married, and would treat all individuals equally, regardless of their gender.

With regard to Windsor v. U.S. on the constitutionality of the 1996 Defense of Marriage Act, the implication is that the Act is unconstitutional because it violates individual rights that are constitutionally protected.  Ideally, the Court would recognize in its opinion that the privileges and obligations federal law recognizes as going with marriage are really privileges that accord to contractually agreed-to domestic partnerships, and marriage is one type of domestic partnership.  Any rights accorded to one type of domestic partnership — marriage — should be afforded to all domestic partnerships.

Randall G. Holcombe is Research Fellow at the Independent Institute and DeVoe Moore Professor of Economics at Florida State University. His Independent books include Housing America: Building Out of a Crisis (edited with Benjamin Powell); and Writing Off Ideas: Taxation, Foundations, and Philanthropy in America .
Full Biography and Recent Publications
Beacon Posts by Randall Holcombe | Full Biography and Publications
  • Catalyst