Privileges and Rights

[swan_tower]

With various responses to the Prop 8 decision floating around out there, I was particularly struck by this tweet, which articulates a divide I've been chewing on for some time: Californians knows that marriage is a civil right, not a privilege.

"Privilege" is a word that's seen widespread use lately, in the context of society's treatment of different groups of people: white privilege, male privilege, straight privilege, able-bodied privilege, etc. There are many lists out there pointing out what kinds of advantages a person is likely to enjoy if they fit into the preferred group, and how many of those advantages aren't even the kind of thing you think about in your daily life (unless you don't have them). But I think there's a blurring that happens in some of those lists, which I want to look more closely at: the difference between privileges and rights.

Privilege is, literally, private law. It's a special exception made for favored individuals or groups. Centuries ago, a nobleman might be given the privilege of hunting deer on the king's land; today, I pay for the privilege of checking books out from Stanford's libraries, which is otherwise reserved only to their students and staff. If the king decides he doesn't want anybody shooting his deer, or Stanford decides they don't want to deal with outside users, then they can take that privilege away.

A right, on the other hand, is something everybody has, unless we permit laws or behaviors that exclude disfavored individuals or groups from it. Voting is a right belonging to all U.S. citizens, unless they're children (excluded on the basis of immaturity) or incarcerated felons (excluded as part of their punishment). Freedom of speech is a right. Fair trials are a right. You can't take somebody's rights away without a damn good reason.

The distinction is important because it affects how a problem can best be solved. One of the white-privilege lists I saw mentioned the privilege of being able to walk around in a store without the employees watching your every move to make certain you aren't going to steal anything. I had a visceral reaction to that: for god's sake, that should be a right! Our default should be to assume that a given customer is not a criminal, unless we have evidence to the contrary. (Evidence other than skin color, which doesn't count.) You don't fix that problem by telling your employees to give every customer the hairy eyeball; you fix it by telling them not to discriminate against the black (or Latino, or etc.) customers. On the other hand, being able to make an offensive joke about a member of a disfavored group and not suffer any consequences for it? That's a privilege. You fix that by calling people on it, making sure there are consequences; the privilege harms other people, and so you take it away.

Both of these are important things. But I don't want to lose sight of the rights, in all the talking about privilege; it downplays the importance of the former, while creating the sense that the only solution is to take things away from the advantaged groups. Sometimes that is the solution -- but sometimes it's better to share the advantages with everybody. Improving the world doesn't have to be a zero-sum game.

In the case of Prop 8, you don't resolve the situation by making civil marriage a privilege, granted by the government to those (heterosexual) couples of which it approves. You resolve it by acknowledging that marriage is a right, which cannot be withheld simply because the couple is same-sex -- or mixed-race, or one or both parties are incarcerated felons, to choose a few of the relevant legal precedents. Nobody has to lose anything for other people to gain.

Comments

[cepetit.myopenid.com (from livejournal.com)]

I can't put my fingers on my copy of it at the moment, but Ursula Le Guin made much the same point about freedom of speech in one of the essays in The Language of the Night.

One of the problems with taking privilegio too literally, though, is that the medieval/renaissance privilegio primarily related to private actions that would otherwise have been reserved to the ruler (I'm hesitant to say "crown," as the most-significant development of privilegio was in renaissance Italy). For example, privilegio was the doctrine that allowed rulers to issue letters patent, thereby allowing the private party inventor to step into the ruler's shoes and prohibit another private party's economic activity without reference to a contract between them, or to a specific piece of land or personalty (personal property). And similarly, privilegio is one of the ancestors of copyright and trademark.

Conversely, the dubious "right" to discriminate comes more from plenary indulgences (at least in the West) than anything related to privilegio... because the ruler had the "right" to discriminate only by sufferance of the Church in the first place, going back into the 1430s explicitly and implicitly as far back as Charlemagne's misbegotten sons (think of Lear's children, then add another helping of viciousness... and subtract any competence).

[swan-tower.livejournal.com]

I don't want to lean too hard on the origins of the words, no. I brought it up mostly because I think there is a bit of the aristocratic whiff still hanging around the word "privilege" -- the privileged few get to do this or that, etc. And I've got enough revolutionary in me to want to knock the privileged elite down a few pegs, while lifting up everybody else through acknowledgement of what I consider to be basic rights.

Le Guin is not bad company to be in on this matter. :-)

[jsbangs.wordpress.com (from livejournal.com)]

I strongly agree with your overall point: there is a distinction between rights and privileges, and they shouldn't be conflated. The classic essay "Unpacking the Invisible Backpack" makes this point towards the end, stating that there are "privileges" that everyone should enjoy, and "privileges" that no one should enjoy, and it can be damaging for everyone to treat them the same. (In a related tangent vein, I think there's an important difference between justice and charity [in the old sense], and a failure of charity is not necessarily a failure of justice.)

However, I actually disagree with the original tweet. I think that marriage has historically been treated more like a privilege than a right, as it's denied to all sorts of groups for all sorts of reasons (the closely related, those already married, those underage, and until recently those of different races or religions). Furthermore, the traditional secular purpose of marriage is precisely to privilege a certain kind of living arrangement that's believed to contribute to procreation and economic stability. Now, the practice of marriage and the shape of society have changed enough in the past century that I don't think these rationales really apply anymore, but this, for me, isn't a reason to haphazardly extend the marriage privilege to same-sex couples. I'd rather we eliminate secular marriage entirely or extend it to absolutely anyone. I don't see much sense in extending these privileges only to groups of exactly two people, and only if they claim to be having sex together.

[swan-tower.livejournal.com]

It's been a long time since I read the original "Backpack" essay; I'd forgotten it brought up the distinction, though I'd disagree with the use of "privilege" to describe both categories.

The reason I agree with the original tweet is that the trend in U.S. jurisprudence and legislation has been to affirm marriage as a right, denied only when the reasons against it meet a very strict standard. (As detailed in comments below.) You're right that across human history it's been a different matter -- just as the right to freedom of speech has been -- but when we're talking about U.S. law, it's increasingly been defined as a right, not a privilege, and to rule in favor of Prop 8 would be to reverse that trend.

[jsbangs.wordpress.com (from livejournal.com)]

I take your point about the direction of US jurisprudence.

Nonetheless, if marriage is a right then it ought to be a *right*, and not forbidden to siblings, polygamists, etc.

[ken-schneyer.livejournal.com]

Back in the days when I was writing law review articles, I tried to articulate why marriage mattered at all:

Personal commitment, sexual fidelity, sharing of property, and even raising of offspring can be accomplished without a wedding or marriage. The wedding does something more. [I]t signifies the involvement of a wider community in the relationship of the couple getting married. The community may be simply the families of the participants, implying the creation of new kinships -- parents acquire new children, siblings get new siblings. It may be the friends of the couple, implying a commitment to support not only each individual, but the two as a family unit. It may be a religious community, . . . signifying that the relationship fits within the faith or principles of a group of people who believe, to some extent, the same things. It may be a civic community, as symbolized by a marriage license, implying that the state will defend and enforce certain aspects of the relationship.

The involvement of the wider community implicates those people in the relationship without making them an indivisible part of it; the members of the particular community are involved, but they are not the ones getting married. The act of marriage, then, involves both the wedding couple and others; it is either the formation or transformation of a community; it defines more than two people. But there is no way to create a community with others without communicating with them. [C]ommunities are defined and created by language. Or, to put it a different way, the most private marriage is not a marriage unless somebody else knows about it.

"Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation," Rugters Law Review 46:1313, 1364-65 (1994).

I don't especially like the notion of marriage as a "privilege" either. But to call myself "married" is to demand the assent of someone else in the relationship. But to demand their assent is to implicate them, at least to a degree.

You mentioned a few of the relevant legal precedents. There were others you did not list: marriage between siblings; marriage between parents and children; marriage between humans and pets; marriage between adults and children beneath the age of consent; and so forth. (Please don't think I'm going down the stupid slippery slope that says, "If I give rights to gays and lesbians, then I have to give rights to rapists." I'm not.) If I think of marriage as a right, something to which I can demand assent of the community, then the community has no justification in denying that assent. Once we say, "The community may deny assent under X circumstances," then, indeed, we are talking, to some extent, about a privilege rather than a right. The battleground becomes which circumstances permit the community to deny assent.

These are deep waters.

[shadowkindrd.livejournal.com]

RE: Slippery slope issue: I think that's covered under the rational basis test, though. There are very good reasons for siblings, parent-child, et. al. to not marry, most of them involving health and/or free will (animals can't consent, neither can children under a specific age, etc.). Walker addressed this issue pretty clearly in the judgement.

The one thing that this kind of ruling does leave open under the rational basis is polygamy and/or group marriage. All adults, free will and consenting to be part of a legal marriage with each other. But that's another generation's battle, no?

Somewhere, Heinlein must be laughing.

[swan-tower.livejournal.com]

I personally would have no problem with legalizing polgamy, if all the people involved consent knowingly. As far as I can tell, managing a group marriage is geometrically harder than managing a binary one -- but that's their lookout, ain't it? Sure, it can lead to abuse, but so can monogamy; and a decent portion of the abuse happens in part because those communities exist on the fringes of society, away from outside eyes. If you live among other people, it's harder to get away with marrying a twelve-year-old or depriving your wife of her legal rights.

[jsbangs.wordpress.com (from livejournal.com)]

Is there really a rational basis for forbidding sibling marriage anymore? Fertility can be easily and permanently avoided, and the presumption of procreation within marriage has been steadily eroded since the beginning of the 20th century (when the first reliable contraceptives became available). The recognition of same-sex marriage would seem to be the last legal remnant of that regime, since we're now sanctioning relationships that are definitionally infertile. (Are siblings of the same gender allowed to marry?)

I wouldn't be surprised if there were a successful legal challenge to incest laws in my lifetime.

[cepetit.myopenid.com (from livejournal.com)]

With due respect, I think that second-to-last sentence misstates what is at issue, both in Perry and regarding same-sex marriage in general. The problem is not "which circumstances permit the community to deny assent" (italics Mr Schneyer's, bold mine), but "regardless of the purported circumstance asserted to bar assent, what kind of rationale may be used to bar assent."

Judge Walker's opinion contains a very interesting signal of what he believed is really going on: For the proposition that fundamental rights are not subject to voting control, he didn't cite Lawrence (the relatively recent case striking down Texas's criminal sodomy laws), or Loving (the 1968 case striking down Virginia's ban on interracial marriage), or even one of the "separate but equal" education cases — all of which contain more-ringing prose on the issue. No, he cited Barnette — a 1943 case that denied West Virginia the right to punish a disfavored religious minority (Jehovah's Witnesses) for following their religious doctrine and refusing to allow their children to salute the flag and recite the pledge of allegiance. In short, he flipped the religious rationale in favor of Proposition 8 on its head, implying that upholding Proposition 8 would harm religious freedom.

Then, too, Judge Walker's findings are not about the rightness or wrongness of marriage, or legitimate restrictions on marriage. They are about whether this particular restriction on marriage was adopted for a constitutional purpose, and is rationally related to a legitimate interest of the State.

[ken-schneyer.livejournal.com]

I see that I have misled some of you. My article was primarily about constitutive rhetoric rather than constitutional reasoning, although constitutional reasoning did fit into it.

My point wasn't about the validity of Judge Walker's rationale, which I'm sure is fine. It was about Bryn's distinction between rights and privileges in a philosophical context. I agree that it's possible to draw reasonable lines between different kinds of denials of assent to marry, and I agree that issues of consent are a good place to do so. My point is that the very act of drawing those lines implies a grant, or consent, from the state.

[swan-tower.livejournal.com]

I do think there's a difference, though, between a situation whose default condition is set to "yes" (a right) and one whose default condition is set to "no" (a privilege). I have the right to freedom of speech, unless specific conditions apply; I do not have the privilege of using lethal force, unless other conditions apply. In the case of marriage, the trend in U.S. policy has been to define it as a right rather than a privilege, and that's a definition I support.

[davidkudler.livejournal.com]

I agree with everything you so eloquently said. And you certainly know the law here far better than I do.

But I will say that in each case that you mentioned (marrying pets, children, close relatives, etc), there are compelling legal, medical and societal reasons to outlaw them. Marriage, as you said, is a social act, but first and foremost it is a binding legal agreement between consenting adults. That lets out minors, pets and personal computers. (A lady did recently ask for a license to marry her iPhone, if I remember correctly.) And incest has both genetic and psychological payloads that society has a legitimate interest in avoiding.

Homosexual marriage doesn't run afoul of either of those challenges—homosexuality hasn't been considered a disease by the APA since 1973, and if there's ever been a scientific study that's proven that society has suffered when adult same-sex couples have made lives together, I haven't heard about it. By definition, it has the same requirements as any other marriage: both parties need to be consenting adults.

The only problem with gay marriage, as I said on my LJ, is that many cultures—and in particular many religions—consider it taboo.

But that's not the same thing, and that, I think, was the basis for the ruling.

Mind, I'm still trying to think through the question that John Kerry asked back when all of this mess got started in 2004: what the heck is the government doing licensing a religious ceremony?

[ken-schneyer.livejournal.com]

I was trying to avoid the slippery-slope argument. *sigh* I shouldn't have brought it up.

Kerry's perspective is very interesting. In the scheme of my 1994 argument, he's suggesting that the religious community is the only (or the most) relevant one. The answer to his question, though, is this: the state grants certain privileges to persons who are "married" that it does not grant to others. Consequently the state wants a say in deciding who those are.

[kizmet-42.livejournal.com]

The government is making money by licensing not only the ceremony but also (in some states) the authority of those performing them.

[swan-tower.livejournal.com]

I know there are reasons that instituting this change now wouldn't work -- but we could have avoided a good chunk of the trouble, I suspect, if "civil marriage" had been called something else from the start, way back when. If marriages were a religious matter (as confirmation is, frex) and civil unions were a legal matter (as the age of majority is), then there would be less of a sense that one affects the other: what God and your priest think of your living arrangement would be more clearly separate from your right to visit your S.O. in the hospital.

[ken-schneyer.livejournal.com]

Excellent point.

[jsbangs.wordpress.com (from livejournal.com)]

Indeed, and this is why my favored policy would be civil partnerships open to all comers, separate from the religious concept(s) of marriage.

[rachel-swirsky.livejournal.com]

Speaking of the slippery slope argument--why exactly isn't "taboo" itself a slippery slope argument? There's at least one culture wherein het sex is considered totally dangerous and to piss off the gods, and consequently tabooed more often than not. If some cultures and religions get to legislate their illogical taboos, why not that one?

And why exactly is it legal for people to eat ham and shrimp? Or cheeseburgers?

[ken-schneyer.livejournal.com]

Hm, do I answer as a lawyer, or as a rhetoretician?

From the standpoint of the rational-basis test for 14th Amendment jurisprudence, your argument (in the first paragraph, anyway) is a strong one, and I agree with it. The strongest counter-argument is that when you're interpreting a 140-year-old provision (as the 14th Amendment is), it's not irrational to take into account what the legal assumptions of its authors were. Unquestionably those who enacted that provision in 1868 were concerned with race, and any other sort of differentiator (sex, religion, sexual orientation, etc.) has an uphill battle demonstrating that it should be included in the mix. And certainly they did not have same-sex marriage at the time. In a common-law system, inertia always has a presumptive advantage.

Rhetorically your point is also strong. The community surely has a right to define itself, and could (I guess) define itself in an exclusionary manner. But we have already defined our community (in such documents as the Declaration of Indpendence and the First Amendment) to be inclusive rather than exclusive on matters like religious tradition.

The second paragraph, sheyna meydl, is answered by saying that no one has enacted legislation to make it so. But you knew that. ;)

(Tangential point, related to kashrut: I think that the separation of church and state (the "non-entanglement" doctrine from the Lemon case) is easier to apply cleanly for religious mandates that have no other function. Take, for example, the legality of putting the Ten Commandments on the front lawn of a municipal building. It seems obvious to me that "I the Lord am your God who brought you out of Egypt; you shall have no other gods before Me" is purely religious, and simply can't be part of an American governmental structure. But it seems just as obvious "You shall bear no false witness against your neighbor" has a clear civic function (a clear jurisprudential function, even) and it's hard to see why a courthouse wouldn't want it there.)

[swan-tower.livejournal.com]

Other people have already hit the "slippery slope" point, so I won't bother.

You're right that there is a societal component to marriage; it isn't just about the two people involved. But this is where it becomes comparable to other civil-rights issues: there are points at which it better serves society and the dignity of individual humans to say that yes, like it or not, you have to share this country with other people. I might disapprove of some neighbors of mine who went through a marriage arranged by their parents*, but that doesn't give me the right to say their marriage isn't real. The law says I have to assent to that relationship.



*Not a real example. Arranged marriages aren't always a great idea, but neither are they always a bad idea -- which is also true of non-arranged marriages. Either way, it's a matter of my personal feelings, not their legal rights.

[rachel-swirsky.livejournal.com]

Or you could extend the rights to tax advantages and health insurance to everyone, regardless of whether they want to screw one person or many people or no people, in committed relationships or informally.

[swan-tower.livejournal.com]

It would be a beautiful, beautiful thing if we could reform our tax code and health insurance situation into actual sanity.