Sunday, June 29, 2008

Some thoughts on marriage, and the nature of rights

I had a thought earlier, and it was on the nature of rights- the right to act automatically includes the right not to act. In certain contexts, it is easy to conceptualize: the right to free speech includes the right not to speak; the right to privacy includes the right to be open (ever more relevant in this age of internet oversharing).

And then I thought about the right to marry. Same-sex marriage advocates argue (convincingly, in my estimation) that marriage is first and foremost a legal status that conveys rights and responsibilities upon the parties to the marriage. In a very real property law context, only married spouses can own property as tenants by the entirety, a status that allows the couple to own property as if they were a single (as in unitary) person.

If marriage is a fundamental right, as SCOTUS held in Loving v. Virginia, then it stands to reason that there is also a fundamental right not to marry, just as the freedom of speech carries with it the freedom not to speak. Couple who, for whatever reason, choose to remain unmarried are being discriminated against by the restricting entireties property to married couples only.

This distinction is ultimately just as arbitrary and artificical as the anti-miscegenation law at issue in Loving (and the laws barring same-sex marriage now at issue everywhere). Some committed but intentionally and happily unmarried couples will try to buy a home and demand the same benefits as married couples. I can think of no reason why they should not receive them.