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The liberties that individuals have
to pursue life and their goals without interference from the government and
other people are referred to as individual rights. As stated in the Declaration
of Independence, individuals have rights which include the right to life, to
liberty and the pursuit of happiness. In the Declaration of Independence, the
Fourteenth amendment includes the Equal Protection Clause and the Due Process Clause
which support and help protect individual rights and are cited in many Supreme
Court cases.


A right defines and sanctions a
persons freedom of action in a social context. The right to live
your own life is a fundamental right.8 The right to life is the
freedom to pursue and engage in actions that will support the fulfillment and
enjoyment of ones’ life.  For every individual, their rights are
specified by action, so individual rights are the freedom of individual action.

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This freedom allows for the pursuit of whatever actions that will bring
fulfillment and enjoyment of ones’ life without the physical
compulsion or interference by others.


An individuals right is the sources
of all other rights as well as the right to property. A large clarification can
be made in references to the right to property. This concept can also be
applied to other rights that we have has individuals. The right to property is
a right to action, like the right to life, as the right is not in reference to
the object but rather the action of obtaining the property.8 As
rights are rights of action, an individuals right to life must not have
restrictions placed by others that would interfere with an individuals freedom
of action.


When drafting the Declaration of
Independence Jefferson urged others to clearly identify the rights of the
people. Many of the founding fathers, like Jefferson, feared giving the
government absolute power. As a way to counter balance the power given to the
federal government, the Bill of Rights was created to protect the people and
limit the federal governments power. The Bill of Rights clarify the basic
privileges of all United States citizens and all amendments reflect the close
balance between personal freedom and democracy.1 While some rights
have had their definition changed due to an ever evolving society, the
tradition of individual rights is uniquely American and reflects the history of
how the country was founded.  


The Fourteenth amendment is a
heavily cited amendment and is used prominently in a variety of landmark cases.2
The Fourteenth amendment granted citizenship to everyone born or naturalized in
the US, forbids states from denying any person life, liberty, or property
without due process of law or to deny to any person within its jurisdiction the
equal protection of the laws. The pursuit of life and individual goals are
individual rights that the Fourteenth amendment helps protect from being
limited and restricted by the government.


The Equal Protection Clause and the
Due Process Clause are two important clauses that have come from the Fourteenth
amendment. The Equal Protection Clause forbids states to deny any person that
it in its territory equal protection of the laws. It notes that the state must
treat each individual person in the same manner as any other in the same
circumstance and condition. This clause forces states to govern impartially and
to not draw distinctions between individuals based on differences irrelevant to
a legitimate governments purpose.3 The Equal Protection Clause also
helps protect individual rights as by forcing states to apply their laws
equally among the people, an individuals freedom to act is not hindered unequally
by others.


The Due Process Clause is the legal
obligation of the state to ensure that the rights and the equality of all
citizens is met. The Supreme Court has used the Due Process Clause to protect
rights that are not specifically mentioned in the US Constitution. The Supreme
Court has also used the Due Process Clause as a path for the incorporation of
the Bill of Rights which is a practice known as “incorporation”.4 The Due Process Clause like the Equal
Protection Clause aids in protecting individual rights as it ensures the states
will enforce the rights and equality its’


In 2015, the fundamental right to
marry was guaranteed for same sex couples. The Obergefell v. Hodges case challenged the constitutionality of individual
state bans on same sex marriage or the refusal to recognize legal same sex
marriage that occurred in another state that allows same sex marriage. It was
argued that the states with the marriage bans violated the Due Process Clause
and the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court
ruled that the fundamental right to marry is guaranteed for same sex couples and
overturned the Barker Decision.5


The Justices in the Obergefell case determined that the
banning of same sex marriage and the refusal to acknowledge it violated the
Fourteenth Amendments Equal Protection Clause and Due Process Clause. In
referencing the Equal Protection Clause, the ban on same sex marriage was in
violation because by denying same sex couple to marry it would deny the couple
equal protection under the law. Based on precedent, the right to marry is
considered a fundamental liberty because it protects the most intimate
association between two people, it is inherent to the concept of individual
autonomy and it safeguards children and families by according legal recognition
to building a home and raising children. The Due Process Clause of the
Fourteenth Amendment was also cited. It was determined that because there are
no differences between a same sex union and an opposite sex union in reference
to the listing previously on fundamental liberty, the exclusion of same sex
couples from the right to marry was a violation on the clause.


In the Obergefell v. Hodges case the justices decided 5-4 for Obergefell.5 The 4 dissenting Justices cite multiple
reasons against lifting the ban on same sex marriage. One of the reasons the
Justices cited was that the Constitution did not address it there for it is
beyond the purview of the Supreme Court to decide for the states. The Justice
noted that the Constitution and judicial precedent clearly protect a right to
marry and require states to apply laws equally but the Supreme Court can not
overstep its bounds. The Justice found no reason to alter the definition of
marriage and did not see precedential support for making a state alter its
definition of marriage.


While the Constitution may not
directly address the details of marriage, the Due Process Clause can be used to
protect rights that are not specifically mentioned in the Constitution. This
means the address of marriage can look towards the Supreme Court rather than
individual states. I believe that the right to marry and the requirement that
state apply the law equally is not being put in to practice as the states in
question have a current restriction on marriage. The restriction itself is in
direct opposition of the statement of the state applying laws equally. By not
allowing a certain group of people partake in a law, in this case marriage,
equality is lost. I believe that our individual right to pursue life is being
infringed upon by the restriction on marriage as marriage is a step that many
believe has significance in a relationship. By denying this significant
stepping stone in a relationship you restrict an individuals ability to pursue
life and their goals.


A second Justice joined in the
dissent and his reasoning was the question of same sex marriage should be one
decided by the state. He believes that political change should not occur
through the Supreme Court but rather an elected judges as policy making sure
occur though the votes of elected officials.5 This reasoning would
have the majority opinion seen as favored and have the majority opinion pushed
through without the opinions of the minority to be heard. I believe this would
be a great disservice to the rights of the minority as their rights would be
pushed aside in favor of the majority’s
point of view.


Tyranny of the majority is also a
blatant problem in letting the majority elected judge decide the fate of the
minority. Tyranny of the majority is a weakness in a democracy where majority
rules and the majority elects the person in power at the expense of the
minority. John Stewart Mills describes “the tyranny of the majority” as
generally included among the evils against which society requires to be on its
guard.7 The second Justices belief that having the states decide
marriage would not allow the minority to have their voices heard and is an
examples of how tyranny of the majority would not let the minority express
their individual rights.


The banning of same sex marriage is
also an infringement on individual rights. The restriction of individuals being
able to pursue their life and their goals by the government and their policy’s is a violation that must be checked. In his work “What Rights Do We Have?”, Ronald
Dworkin being up the idea that we do not actually have any right to liberty. Dworkin
explains that while the idea of a right to liberty is vast, he believes the
argument is misguided. He brings an example of the New Deal and the
unionization movement and explains many were opposed on the grounds that the
plans infringed on the right to liberty.9 As the tug and pull
between what is favored between liberty and equality, Dworkin asks the question
of whether we have the right to liberty as Jefferson and others supposed. I
believe that we do have the right to liberty and that the freedom to act
individually is a good balance between equality and liberty.


I believe that the support for same
sex marriage is stronger than the argument against allowing same sex marriage.

The Fourteenth amendment and the Equal Protection Clause and the Due Process Clause
of the Fourteenth amendment are strong enough arguments for overturning the
previous laws in place banning same sex marriage and its recognition. By
denying marriage and its recognition for same sex couples you are denying the
couples from life and liberty. Preventing marriage for certain people also
contradicts the equal protection clause of the Fourteenth amendment.


Discrimination based on sex does
not align with equal protection under the law, which is what denying same sex
couples marriage and recognizing it is. David S. Cohen, JD Associate Professor
at the Drexel University of Law gives a simple example explaining how the
banning of same sex marriage is discriminate based on sex. He says to “Imagine three people –
Nancy, Bill, and Tom… Nancy, a woman, can marry
tom but Bill, a man cannot. Nancy can do something (marry Tom) that Bill
cannot, simply because Nancy is a woman and Bill is a man.”10 This shows clearly how denying same sex
couples marriage and allowing opposite sex couple to marry is discrimination
based on sex and sexual orientation. Both of these of which are protected by
the Fourteenth amendments Equal Protection Clause and the Due Process Clause.

The Bill of Rights also protect individuals from discrimination and protection
of civil liberties. Richard Posner, a US Seventh Circuit Court of Appeals Judge
wrote that the same sex marriage bans “discriminate
against a minority defined by an immutable characteristic.”11


One of the most frequent arguments I
hear for the support of banning same sex marriage is that religion says it’s a sin. I believe that religious should not be taken
literally and that the times have changed from when it was written so the text
needs to be reinterpreted rather the same arguments be hashed. While some
religious leaders have come out to publicly support same sex marriage, I
believe that religion and religious views have no place in policy making. I am
glad that some religious figures have become more open in their views a
majority of religious followers have not joined in.


The United States Constitution’s first amendment notes through the Establishment Clause and
Free Exercise clause that Congress can’t
touch religion in relation to making laws. The separation of church and state
has been derived from this wording and can be traced back to Thomas Jefferson. Jefferson’s idea that there should be a wall of separation between the
church and the states has been cited by the United States Supreme Court.  I do not believe that the church should have
an influence on the decision of whether or not same sex marriage is legal. The religious
argument against the allowance of same sex marriage violates the First
amendment and encroaches of individual freedom.


The banning of same sex marriage encroaches
upon an individual right, and also the rights listed out in the Fourteenth
amendment through the Equal Protection Clause and the Due Process Clause. The
continued argument in support of the ban on same sex couples marrying also goes
against the first amendment and the idea of the separation of Church and State.

The banning of same sex marriage does not allow individuals to pursue their
life without interference of others and limits their actions in regards to how
they are able to pursue their life goals. Citing religious text against the
support of same sex marriage violates the separation of church and state that
the First amendment has been interpreted to mean. I believe that the argument
for the support of same sex marriage is stronger than the one against it is and
is backed by the legal documents. 

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