HENRY MATTHEW ALT

TO GIVE A DEFENSE

A primer on rights, with reference to same-sex marriage.

BY: Henry Matthew Alt • May 13, 2013 • LGBT Issues; Moral Theology; Politics

rights
Thomas Jef­fer­son, by Thomas Sul­ly (1821)
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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:

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.

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.

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, 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.

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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