Here’s an interesting question that no one seems to be asking in this enormous debate on gay marriage: do you have a right to get married?
Now if we were to go by the definition of a right that I have presented several times1"What are rights?" — March 4, 2010
"Do you have a right to healthcare?" — April 3, 2010
"Who grants rights?" — August 6, 2010, the answer is a definite No, you don’t have a right to get married at all because marriage is not really an individual right. Instead marriage is an extension of a right we all have: right of association — i.e. you have the right to pick your friends, lovers, acquaintances, and colleagues.
So how does marriage come into play?
Well marriage is a construct. It is not something that exists naturally; it is something that had to be created in order for it to exist. In modern society marriage is more a construct of law than a cultural tradition, and as such has the force of law backing it.
With that force of law come certain benefits to encourage individuals to seek out a partner and get married. These include:
- Rights of survivorship — property rights in everything you own automatically transfer to your spouse upon your death, unless otherwise overridden by contract (including a will or trust) or lien
- Power of attorney — if you are unable to make your own decisions regarding medical care, finances, and your estate, your spouse has automatic power of attorney, though this power must be exercised purely in and for your benefit, and this power can be overridden or stripped if not exercised appropriately
- Insurance and other employment benefits — your spouse can be included in your benefits, if you so desire, and in many States your spouse can take advantage of your benefits automatically for a period of time after your marriage without any additional incurred cost to the owner of the benefits
- Tax benefits — this is limited. If you file your taxes as the status "Married filing jointly", then you can take advantage of a higher standard deduction that could overall reduce your tax burden or increase your tax refund. This can be especially true if you or your spouse doesn’t work, or if there is otherwise a significant gap between incomes. But there comes a point with income where this benefit basically vanishes and the only benefit to filing jointly is reducing paperwork. I’ll explore this in a later article.
So as you can see there is a large legal framework surrounding marriage, providing many legal benefits to encourage others to get married. But it is still nothing more than a legal construct, a relationship status recognized by law instead of one that is readily recognized as a construct of nature such as the parent-child relationship. In creating this construct of law, certain "rights" were created as well.
However in the construct of law, it has been established to be immediately exclusive to only certain couples. Previously it used to be even more exclusive than it is today, not allowing for any non-white person to marry a white person, regardless of what the couple actually wanted, so-called anti-miscegeny laws. The one interesting thing about many anti-miscegeny laws is that non-whites could marry other non-whites, but whites could only marry other whites.
These laws were overturned unanimously by the Supreme Court of the United States in the case Loving v. Virginia2388 US 1 (1967). Today the exclusion rests only with couples of the same sex.
Albeit the exclusion is of couples recognized to be a minority, it is still exclusion, and this exclusion, in my opinion and recently the opinion of the United States District Court for the Northern District of California, is in violation of the Fourteenth Amendment to the Constitution of the United States.
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