May 12, 2013

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

Thomas Jefferson, by Rembrandt Peale (1805)

Thomas Jef­fer­son, by Rem­brandt Peale (1805)



F 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.  (Note my emphases through­out this post.)

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 …



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.




EFFERSON’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.

Athe­ists and lib­er­tar­i­ans are in the posi­tion of hav­ing to ascribe Rights to a class of things that exist of themselves

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.

Mr. Olson does not explain why the free­dom to marry includes the free­dom to rede­fine words

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.




F 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.

You must decide where Rights come from in the first place

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.



[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.