Voting is a Right; Marriage is Not
by Kyle Scott on March 27, 2013 at 2:05 PM
Voting is a right; marriage is not. The case of Hollingsworth v. Perry currently before the Supreme Court raises the question of whether California’s restriction on gay marriage is constitutional. However, a question just as large looms in the background and could be even more damaging to the nation if the Supreme Court moves to strike down Proposition 8. Proposition 8 was approved by a majority of California voters through a referendum in the 2008 elections. The question before the Supreme Court is not just whether gay marriage is constitutionally protected by the Fifth Amendment but whether we still live within a republican system of government. If the Supreme Court decides to overturn Proposition 8, it will have violated the rights of California voters for the benefit of a small minority whose rights were never at risk.
Judicial review is a fundamental part of a republican system of government as it allows for the minority to have recourse when its rights are trampled by the majority. And restricting the majority from taking advantage of the minority is one of the benefits of a republic over a democracy, and a republic is what we were given by our founders, which was nowhere more clearly explained than in James Madison’s Federalist Paper #10.
But this is not what the Court is being asked to do in this case. The Court is being asked to overturn a law that does not threaten or strip any group of a right.
In order for judicial review to serve its purpose, and not step into the area of judicial activism, the Court can only overturn popularly enacted laws when those laws violate rights. However, not everything qualifies as a right. Just because a person or a group wants something does not mean it is a right.
The clearest definition of rights can be found in an Aristotelean understanding of human nature which serves as the basis of virtue ethics and serves as a foundational aspect of the philosophies of Thomas Aquinas and St. Augustine. Moreover, the Aristotelean justification of rights is what our natural law understanding of rights is built upon as it was handed down to us by our founders, most especially Thomas Jefferson.
Aristotle determined that man was by nature a political being because he needs to communicate and reason. Thus, a person, to reach their full personhood and live naturally, must be free to communicate and reason. Rights are grounded in this understanding of human nature. A right is something that allows a person to communicate and reason. Voting is a right because it allows an individual to communicate with the political establishment. Censorship is a violation of one’s rights because it stifles a person’s ability to reason and communicate. Coercion, compulsion and bribery are unethical because they deny a person’s ability to reason and think freely.
Marriage is not a right because it does nothing to stop reason or communication. And because it is not a right, the Supreme Court should restrain themselves and let the voice of the majority in California stand. In fact, the Supreme Court would violate the rights of the voters of California by overturning Proposition 8.
In this instance, gay and lesbian couples have not had their rights violated; they simply lost on a policy issue. Had the voters of California denied gays and lesbians the right to vote in the 2008 elections when Proposition 8 was on the ballot, or if California passed a law that would only allow heterosexuals to vote or have the freedom speech, then an appeal to the Supreme Court could be justified. But in this instance there has been no violations of rights which would make any decision to overturn Proposition 8 an abuse of our republican system of government.