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Thursday, July 2, 2015

After Obergefell: Can You Be Forced To Marry?

This recent Supreme Court case may illustrate the prime characteristic of bad law: unintended consequences that can really go haywire.

The headline value of the Obergefell v. Hodges decision issued June 26th is that same sex couples may get married in any state and be recognized as a legal married unit.

But what exactly is a right to marriage?  And what is a "right"?

The classic meaning of a right is something which is inherent in one's existence and - and this is crucial - imposes no burden or duty on another.  

That means in simplest terms that anything which is a right is something which does not require a cost, obligation or action imposed on or by anyone else.

But the Supreme Court's declared right to marry is precisely that. This is so because a marriage involves more than one person. (Warning: Polygamy is coming.)  That means that marriage requires an act by another to trigger and fulfill the "right" of the first person. 

That is not a right. That is a contingent achievement, insofar as a person has successfully found another person who agrees to marry.

A marriage requires a unit. There may be a right to marry by a unit, of more than one person, but then the right is held and exercisable only by the couple. The individual cannot exercise the right without first achieving the membership in or admission to a couple. So how is there an individual right to marry when the ability to marry requires becoming a couple and finding a willing partner?

Nor can marriage be an entitlement. Not unless we wish to declare that some of us are obligated to get married.

That is because an entitlement by one person involves, and requires, an obligation to act by another. It involves a duty and a compulsion to act. 

This is how the right to marry can result in legal shotgun marriages where people are forced to couple up. This is not merely a return to the custom of arranged marriages in many societies; it is in effect a return to slavery where the owner could create and destroy familial relations through his entirely illegitimate property right.

The right to marry goes hand in hand with an imagined right to be fulfilled. We all have the right to try to achieve marriage, but we do not have the right, nor the guarantee, to achieve it.  This is what is meant by "the right of...the pursuit of happiness." You have the right to the pursuit, the chase, if you will. That requires no one else's cooperation, no compulsion, no coercion, just your own effort. 

We all want opportunities. But no one is simply entitled to have the outcome they want. Not even if we dress it up and play games with the meanings of words and call it a right. 






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