Gay Marriage And The Nature Of Rights

 My reponse to this article at Reason: The Texas GOP Stands on a Platform of Ignorance

The sleight-of-hand in the gay marriage debate is the nature of the "rights" in question. The Bill of Rights is predominantly a charter of negative rights. All the rights enumerated in the bill of rights are of this nature: the government protects the right in question by simply not doing stuff to you.

There are no positive rights listed. Positive rights are "rights" where others are required to grant you something. They are popular in modern progressive Constitutions and U.N. charters: the "right" to health care (implies that someone has an obligation to provide you with health care whether they want to or not); the "right" to housing (implies that someone has the obligation to fork up the expense of housing you, whether they want to or not).

Libertarians are usually opposed to positive rights, because they require compelling the labor of others in order to provide you the "right."

Homosexuals already have the negative right of gay marriage. Just say "we're married." Nobody's stopping you.

The problem is that in the U.S., being married comes with a whole lot of "gimmes" that the government is obligated to provide: tax status, social security benefits, inheritance benefits, health care benefits, property rights.

All these are, if anything, positive rights, and can not be construed as the type of negative rights included among enumerated and unenumerated rights in the Bill of Rights.