A Primer on Rights, With Reference to Same-Sex “Marriage”

Of things that exist, some exist by nature, some from other causes.”  That is the famous opening of Book II of Aristotle’s Physics [1], and if you’re philosophically-minded it’s impossible to get that sentence out of your head.  It is the beginning of all correct reason.  A tree exists by nature, but a park is made by man.  For Aristotle’s “nature,” the Christian will substitute God, since the tree does not spring up ex nihilo; things that exist imply a maker, and Aquinas improves on Aristotle.  Thus of things that exist, some are created by God and some by man.  And since they are, in fact, created, it follows that they are created for a purpose.  It follows, too, that their purpose is defined by the maker alone.

With that in mind, let us turn to what Jefferson has to say about Rights in the Declaration of Independence.

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, that among these are Life, Liberty[,] and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men.

I.

THE ORIGIN OF RIGHTS: JEFFERSON V. PAINE

Note a couple of things in Jefferson’s discussion.  Note that he assigns the source of Rights to the Creator.  There is no debate that there is a Creator; indeed, Jefferson characterizes His existence as “self-evident” [2].

Note also what Jefferson says about the purpose of the State:  Its purpose is not to grant rights, nor to create rights.  Rights are already an “endowment” to all human beings from God.  Rather, the only purpose of the State is to secure rights.  It protects them; it does not create them.  Let us grant, if only for the sake of parallelism, that Jefferson was a Deist.  He was not a Statist.

I would also point out that foreign to Jefferson’s discussion is any notion that Rights exist of themselves.  Rather, they have a source, which is God.  Since that is the case, it follows that, to understand the nature of what our Rights are—and just as importantly, what they are not—we have to understand the nature of God Himself.  This is an important point; I shall be returning to it.

Apart from the Declaration, the other important passage about Rights among the Founding Fathers comes from Thomas Paine, who most certainly was not Christian.  In The Age of Reason (1793-1794), Paine says of his religious views:

I do not believe in the creed professed by the Jewish church, by the Roman church, by the Greek church, by the Turkish church, by the Protestant church, nor by any church that I know of.  My own mind is my own church.  All national institutions of churches, whether Jewish, Christian, or Turkish, appear to me to be no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.

For Paine, religion may not have been the opiate of the masses, but it was certainly the terrorizer of the masses.  Rather than worship God, Paine worshipped himself—specifically, his own intellect.  For him there was no question of Rights coming from God.  Hence in The Rights of Man (1791) [3]—wherein Paine set out to defend the French Revolution against British statesman Edmund Burke’s criticisms of it in Reflections on the Revolution in France (1790)—Paine says the following on the question of Rights and whence they originate:

It is a perversion of terms to say that a charter gives rights.  It operates by a contrary effect—that of taking rights away.  Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few.  … The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a contract with each other to produce a government; and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

The differences between the American and French Revolution are too complicated and apart from the purpose to get into here.  What I want to point out are the differences between Jefferson’s view of the origin of Rights and the purpose of the State, and Paine’s.  For Jefferson, the source of Rights is God—they are an endowment; for Paine, they are “inherently in all the inhabitants”—that is to say, they exist of themselves.  They don’t have any source; they just are.

But, of course, if they just are, there is no point in talking about what rights an individual does or does not have.  With respect to rights, an individual is “his own … sovereign,” in Paine’s words.  The only thing he does not have a right to, is what he has specifically contracted with the government to take away from him.  The State, in Jefferson’s view, exists to secure Rights that have their source in God; but in Paine’s view, the State can only take away Rights that have an existential reality of their own.  For Paine, the only authority the State has to take Rights away—indeed the only authority the it has to exist at all—is because of the social contract.

II.

TED OLSON AND S.E. CUPP: LIBERTARIANS ON SAME-SEX MARRIAGE

Jefferson’s understanding of rights, having been the one articulated in the Declaration of Independence, won out over Paine’s in the course of history and the American philosophy.  Which is how it should have been, because Paine was wrong about the origin and nature of Rights, and he was wrong about the French Revolution [4].  I take the time to go into this because there are many today who bring the understanding of Paine, or even Ayn Rand, to bear on the discussion of Rights; and that is particularly so with respect to the topic of same-sex marriage.  To cite just two examples: S.E. Cupp and Ted Olson, though normally described as conservatives, are on this topic very much libertarians—which is different.

Ms. Cupp, who as far as I am aware has not written anything on the subject but has only engaged in sound-bite-level discussion (in deleterious venues like MSNBC), constantly urges the Republican party to become more of a “big tent.”  She says that “Conservatism and gay rights should be … natural allies—keeping the government out of people’s lives.”  Like many today, she confuses conservatism with libertarianism—i.e., Paine’s view of rights existing of themselves, inherent in the person (or what Cupp deifies as “people’s lives”).  Cupp, being an atheist, does not share Jefferson’s view that Rights come from the Creator instead of, somehow, existing on their own, by nature.  And she seems to think that, if you have a view that’s different than hers about homosexuality, that’s all well and good, but you should keep it to yourself and not attempt to advance those views publicly.  She gives no such advice to proponents of same-sex marriage.

But it is worth pointing out—and I hope the reader has noticed—that neither Aristotle nor Aquinas, with whom I began, had any notion of things which exist on their own.  If Rights exist—and no one is questioning that they do—they come either from God or from the state.  There is no other option.  But the libertarian, or the atheist, like S.E. Cupp, is necessarily in the position of having to attribute Rights to a class of things that exist of themselves.  The state, in her view, should stay “out of people’s lives.”  She concedes that the state is not in the business of granting rights; it’s job is simply to not take them away.  Thus in her view same-sex marriage is a right that just exists out there, on its own—it is neither created by the state, nor does the state have any business taking it away.

Ted Olson, who argued the case for same-sex marriage in Hollingsworth v. Perry, wrote an op-ed for Newsweek (found at the Daily Beast), titled “The Conservative Case For Gay Marriage.” What he in fact articulated, like Ms. Cupp, was not a conservative but rather a libertarian understanding of Rights; in his case, with some admixture of statism tossed in.  (That he titles his op ed a “conservative” case is one more example of the inability to be be truthful with language, no different than the use of the expression “marriage equality.”)  Referring to same-sex marriage as an example of “basic American principles” (an assertion that leaves me gasping in incredulity), Mr. Olson begins the heart of his argument thus:

Th[e] bedrock principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike.  The dream that became America began with the revolutionary concept expressed in the Declaration of Independence in words that are the most noble and elegant ever written:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty[,] and the pursuit of Happiness.

Mr. Olson quotes Jefferson to his aid here, but as we read his piece further we’ll discover that his understanding of “the principle of equality” is closer to Paine than Jefferson.  Mr. Olson seems fond of meaningless expressions that are nevertheless intended to stir emotions—pablum turns of phrase like “the dream that became America.”  Like hope and change, you can define that any way you want, because it has no clear meaning in the text.  Of course, the “dream,” if you want to be clear about it, was of a people who had the political freedom to pursue God.  But as we read on we’ll discover that the pursuit of God is not the context in which Mr. Olson discusses or understands the question of Rights.

As he proceeds, Mr. Olson attempts to ground his discussion of gay and lesbian rights in the context of the fight for civil rights, though he does not explain how a personal characteristic one is born with and did not choose (the color of the skin) is akin to a question of personal behavior (homosexual sex).  The only reason to make any such comparison is because you think that, by alluding to to the fight for racial equality, and stirring up people’s emotions and yearning for justice that way, you can somehow stop critical thought on a question of behavior.

Mr. Olson goes on to say that “The very idea of marriage is basic to recognition as equals in our society,” though he makes no attempt to explain how such a statement means that marriage can be defined any way a person likes.  No one is denying anyone the right to marriage, correctly understood.  (And that same-sex marriage is an oxymoron is a point I will take up in more detail in a later post.)  Mr. Olson says that, without the freedom to marry, “There can be no true equality under the law.”  That is difficult to argue against, except that he makes no attempt to explain why such a freedom should include the freedom to redefine words.  What he does say is this:

[T]he underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.  [I]n some … cases [it is] a religious sacrament.  [But mainly i]t is a relationship recognized by governments as providing a privileged and respected status, entitled to the state’s supports and benefits.

Here Mr. Olson gives lip-service to a sacramental understanding of marriage—describing it, instead, almost exclusively as a path toward a “respected status” in society and “the state’s supports and benefits.”  Marriage, for Mr. Olson, seems to be no more than a path to other rights recognized by the State.  Why marriage is necessary to obtain those rights, Mr. Olson does not explain.  Neither is this the Jeffersonian understanding of the state’s purpose, which Mr. Olson had previously appealed to; rather, it is the contractual understanding of the state articulated by Paine:  Although Mr. Olson’s quotation of Jefferson included his words about our rights coming from God, he was quick to dismiss any religious understanding of marriage, as applicable merely to “some cases,” and instead to discuss it as a path to “recognition,” “support,” and “benefits.”

Mr. Olson has more to say; I am going to return to his op-ed in later parts of this series, which will look at the topic of same-sex marriage from several different angles.  For now, I want to point out only how his understanding of the nature of Rights differs from the Jeffersonian view; although he somehow believes it to be in accord with his own.  But equality, for Mr. Olson, is not something that we are created possessing; rather, it is something we achieve through state recognition of our personal proclivities.  Where that is to be found in the Declaration, Mr. Olson does not say.

In truth, there is an odd mixture of libertarianism and statism in Mr. Olson’s article.  It is beyond my purpose to speculate how both philosophies manage to exist simultaneously inside his head.

III.

THE NATURE OF RIGHTS IS THE SAME AS THE NATURE OF THEIR SOURCE

Of things that exist, some owe their existence to God, and some to other causes.  That is how I would modify Aristotle’s words.  Rights, then, must either come from God or be granted to men by the state.  Atheists and libertarians treat rights as though they had a natural existence of themselves; the impossibility of that notion is a topic I will address in a future post.  For now, I want to end by making a simple proposition to be expanded upon as the series procedes.  I may state the proposition as follows:

If we assume that Rights are given to us by the state, then we must concede that they can also be taken away at the whim of whoever happens to be in power on any given day in time.  No right can long exist upon such a tenuous foundation, and that is precisely what our Founding Fathers intended to avoid by setting down an enumeration of political rights.  And no one, I believe, would argue otherwise.  For if a person were to do so, it would follow that of course the state can forbid same-sex marriage, if only because it can forbid any right that it wants (if rights have their origin only in the state itself).  But the argument that proponents of same-sex marriage make is, that to deny same-sex marriage is to deny someone his rights, which exist from a source prior to the state.  The state doesn’t grant them, it merely steps out of the way.

Thus the question becomes:  Where do our rights come from?  You could take the view of  Paine, or S.E. Cupp—that somehow they exist on their own, as a natural outgrowth of the individual, and that individual autonomy trumps all else.  But if you take that view, you are in a philosophical difficulty, namely, the difficulty of explaining, first, how, of things that exist, some exist because they were made, and some just exist of themselves; and second, how you know that Rights are one of the categories of things that exist on their own.  Again, this is a question I shall take up in a future post.

The only other option is to say, along with Jefferson, that Rights come from God.  That happens to be my own position.  But here the proponent of same-sex marriage is in a bit of a difficulty too.  For what God creates, He creates for a purpose; and He creates based on the nature of who He is.  If our Rights come from God, they can not possibly include the right to sin.  They can only include the right to do good.

One must make his choice here, and take with it the logical consequences that follow from that choice.

Part 2, “A Primer on Moral Law, With Reference to Same-Sex Marriage,” may be found here.

ENDNOTES

[1] Aristotle. Physics.  Trans. Robin Waterfield. New York:  Oxford UP, 2008.

[2] Note to anyone commenting on this post:  Every time a Christian writer brings up Jefferson, invariably there’s some smart-ass who comes along and says, “Well, Jefferson was a Deist, you know” and wants to get into a debate about the specifics of Jefferson’s religious views, as though a Christian in good conscience can’t cite Thomas Jefferson without being harrassed by the Jefferson-was-a-Deist proselytes.  Consider yourself forewarned:  That discussion is not to take place here.

[3] Paine, Thomas. The Rights of Man (1791). New York: Dover, 1999.

[4] In fairness, Jefferson was sympathetic to the French Revolution, too.  I use his words in the Declaration as a starting point for my discussion of same-sex marriage, without meaning to suggest that Jefferson would necessarily agree with every conclusion I reach.

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