Marriage is centered around a choice. Two individuals meet, court, and decide to wed. The actual marriage, whether it is religiously based or civilly based requires the willingness of each individual. In a civil marriage, the two individuals consent to the marriage by signing a contract. In a religious marriage (Roman Catholic is used in this example) the individuals are each asked if they consent to the marriage. If both individuals do not consent, marriage cannot occur. The choice of marriage is whether or not each individual is willing to marry the other individual and it is in this choice that marriage is constructed.
The individual has the ability to choose who his or her marriage partner is if the partner also consents. In fact, an individual can choose not to enter into any marriage at all. This does not preclude the possibility of that individual's marriage, but recognizes that the individual has no one who he or she would consent to marrying and would also consent to marrying the individual. All people have the ability to make the choice of to marry another individual or not.
This in turn leads to the question of how can marriage be considered a right if it is centered on choice. A right is "legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society" (Wikipedia). Marriage can only be a right if it is not a duty or a privilege. Because someone can choose never to marry, marriage is not a duty because it is not all individuals enter into it. It might appear that marriage could be considered a privilege as individuals are limited in who they can marry.
Marriage is commonly not allowed when one or both of the individuals is under the age of consent. The reason is that they are deemed to be incapable of consenting properly to the union of the two individuals because they lack the maturity and understanding to enter into such an agreement. In fact, the younger individual may be more easily coerced into marriage. Not allowing such a marriage to take place, is not a prescription against these two individuals ever from marrying, but from the individuals marrying when at least one of them is under aged. Both individuals may choose to marry each other at some point in the future. The older individual may even consent to marriage with another of age individual. So society is seen as revoking marriage when it is not able to receive the valid consent of both parties.
It would appear now that for marriage to be a privilege, it is based on the consent of each individual. The marriage in that example was not allowed because of the age and subsequently the inability of one of the individuals to consent to the union. However, the idea behind marriage is that each party consents. In the example, the under aged individual was unable to consent so the marriage could not occur. Indeed, if it had occurred it would not be marriage as it is intended because of the lack of proper consent. We find that society here is enforcing the importance of consent in a marriage and not restricting marriages as they are meant to be.
Another example of a time when marriage is not allowed is same sex marriage cannot. Here, the ability for two individuals to marry is revoked because each is of the same sex. Each of the individuals can validly consent to marrying the other, but the marriage is still refused because of the restriction of sex. What made a marriage valid is present but the marriage is not allowed. The reason for the prohibition is that the two individuals are of the same gender. If one individual was to change genders legally, then the marriage could occur. The same individuals would have consented as the only difference is the gender of one individual.
This analysis presents two possibilities. Marriage could be a privilege only offered to heterosexual couples or it could be a right denied to homosexual couples. Homosexuals exist as a class of citizens as they share a common orientation. This class of citizens is singled out without regard to the individuals. It is seen through the fact that the consent of each individual in a same sex couple may consent to marriage, but would be denied that possibility because of only their gender. The important facts surrounding each individual’s decision to get married is not considered. It would be little different form saying that individuals with a height difference of 6 inches, tattoos, or blue eyes could not marry. The individual is lost in the class making it discrimination.
In the United States, privileges do not legally exist through discriminating against a group. Privileges exist through earning them and are lost by abuse or misuse. One has the privilege to get a driver’s license, but will loss this privilege upon repeated DWI offenses. In removing a privilege, the individual is considered. To say that anyone who drinks is not allowed to have a driver’s license would be viewed as unjust. In denying the ability for two consenting same sex individuals from marrying because they are of the same gender, the right of marriage is doing exactly that. Not allowing same sex marriage is denying homosexuals their civil rights because of the class of citizens that they belong to.
Marriage is constituted of the conscious and valid consent of two individuals forming a union. What lies at the heart of marriage is consent as is shown by what marriages are and are not allowed. One problematic marriage that is not allowed is that between homosexuals. Valid and conscious consent is present here, but the marriage is not allowed because the individuals are of the same gender. The question of whether marriage is a right or a privilege is present in this prohibition. Marriage is denied to homosexual couples not because of the individuals they are and the quality of their consent, but the class of citizens to which they belong. Because the class is being singled out and not the individual this is considered discrimination and is not considered a revocation of a right to marriage. This claim is strengthened by the fact that each individual could marry a person with a different gender immediately after their marriage refusal and assuming shared consent would be allowed to. As such, marriage exists as a right present to all individuals who can consent valid and it is denied to homosexuals because of the homosexual nature of their relationship.
1 comment:
Very nicely done.
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