Rights and Gay Marriage

As everyone in North America knows by now, a federal district court in California struck down the law banning gay marriage (popularly known as Proposition 8). This is surely to be hailed as an important blow for human rights and the rule of law in the United States, though of course the decision has already been appealed, and will no doubt end in the Supreme Court. Less well known, is that on Thursday the Supreme Court in Mexico also upheld the constitutionality of same-sex marriage in an 8-2 decision. Mexico is the third country, after Canada and Argentina, in the Americas to fully recognize same-sex marriage.

Yet amongst all the debate in the United States there continues to be confusion over the nature of the core issues invoked by the same-sex marriage cases. The New York Times editorial the next day reflected it perfectly, passionately asserting that "marriage is a constitutional right," while inside the paper was analysis of whether the political right to marry constituted a "civil right." Meanwhile on the right there are shrill screams that the Constitution contains no "right to marry," and that this is just more judicial re-writing of the constitution (continued....).

Rosa Parks

This all misses the fundamental point. The right in question is not a right to marry, but to be treated as an equal and not to be discriminated against on the basis of some shared personal characteristic that tends to be tied to a person's sense of identity - like race, ethnicity, religion, gender, and yes, sexual orientation. To discriminate on such a basis is cause grievous harm to the dignity of all those who share the characteristic.

When Rosa Parks helped launch the civil rights movement by refusing to get to the back of the bus, she was not claiming some constitutional right to sit in the front of the bus, or even to ride the bus. She was claiming a constitutional right to be treated as an equal and not to be discriminated against. Relegating people categorized by some shared characteristic to the back of the bus, or to separate schools, or different cinemas, is to identify them as being less worthy of respect and concern - basically, of having less value as human beings. And to deny a class of people access to a fundamental institution shared by the rest of society does the same.

The right to equality and to be free of discrimination is generally considered the most important of human rights. It is foundational, essential to the enjoyment of all other rights. Let us hope that the courts of the United States continue to recognize its importance in the context of efforts to deny homosexuals access to the institution of marriage, an institution that the conservatives all seem to agree is important. - Gamma.