NOM BLOG

There is a Fundamental Marriage Right

 

In a recent article from The Public Discourse, Adam MacLeod, author of Property and Practical Reason, explains that there is not only a fundamental right to marriage, but that we, as Americans, have the responsibility to preserve it:

ThinkstockPhotos-168759151Adam Seagrave recently argued that there is no fundamental right to marry. He criticized Supreme Court decisions to the contrary on Lockean grounds. Fundamental rights are rooted in self-ownership, Seagrave argues, and are therefore inherently individual rights. The right to marry is not an individual right, is relatively new, and is inconsistent with America’s political tradition.

Whether or not Locke would approve of it, there is a fundamental marriage right. It is ancient, not recent. And it secures the integrity of the natural family. Seagrave’s resistance to the Court’s expansive substantive due process doctrine, which secures what Justice Brandeis called “conditions favorable to the pursuit of happiness,” is laudable. But his proposal to dispose of the Court’s marriage jurisprudence would throw the baby—and the baby’s mother and father—out with the bathwater.

Like the rights to life, liberty, and property, which Seagrave affirms, the right of marriage is a so-called negative right—a liberty secured against outside interference by a perimeter of claim rights. It correlates with the duty of those outside the natural family, including the state, to abstain from interfering with marital and parental rights and duties, absent an adjudication of divorce, neglect, or abuse.

. . .

Nothing is more fundamental to our legal edifice than the ancient liberty of the natural family. The new right of “same-sex marriage” will undermine the rational bases for many of our positive laws governing marriage. But it cannot undermine the fundamental liberty of the biological family, because it cannot eliminate the natural rights and duties in which that liberty is grounded. We should preserve the fundamental marriage right for the sake of our communities and the rule of law.

Full article can be accessed by visiting The Public Discourse.