The liberties that individuals haveto pursue life and their goals without interference from the government andother people are referred to as individual rights. As stated in the Declarationof Independence, individuals have rights which include the right to life, toliberty and the pursuit of happiness. In the Declaration of Independence, theFourteenth amendment includes the Equal Protection Clause and the Due Process Clausewhich support and help protect individual rights and are cited in many SupremeCourt cases. A right defines and sanctions apersons freedom of action in a social context. The right to liveyour own life is a fundamental right.8 The right to life is thefreedom to pursue and engage in actions that will support the fulfillment andenjoyment of ones’ life.
For every individual, their rights arespecified by action, so individual rights are the freedom of individual action.This freedom allows for the pursuit of whatever actions that will bringfulfillment and enjoyment of ones’ life without the physicalcompulsion or interference by others. An individuals right is the sourcesof all other rights as well as the right to property. A large clarification canbe made in references to the right to property. This concept can also beapplied to other rights that we have has individuals. The right to property isa right to action, like the right to life, as the right is not in reference tothe object but rather the action of obtaining the property.8 Asrights are rights of action, an individuals right to life must not haverestrictions placed by others that would interfere with an individuals freedomof action.
When drafting the Declaration ofIndependence Jefferson urged others to clearly identify the rights of thepeople. Many of the founding fathers, like Jefferson, feared giving thegovernment absolute power. As a way to counter balance the power given to thefederal government, the Bill of Rights was created to protect the people andlimit the federal governments power. The Bill of Rights clarify the basicprivileges of all United States citizens and all amendments reflect the closebalance between personal freedom and democracy.1 While some rightshave had their definition changed due to an ever evolving society, thetradition of individual rights is uniquely American and reflects the history ofhow the country was founded.
The Fourteenth amendment is aheavily cited amendment and is used prominently in a variety of landmark cases.2The Fourteenth amendment granted citizenship to everyone born or naturalized inthe US, forbids states from denying any person life, liberty, or propertywithout due process of law or to deny to any person within its jurisdiction theequal protection of the laws. The pursuit of life and individual goals areindividual rights that the Fourteenth amendment helps protect from beinglimited and restricted by the government. The Equal Protection Clause and theDue Process Clause are two important clauses that have come from the Fourteenthamendment. The Equal Protection Clause forbids states to deny any person thatit in its territory equal protection of the laws. It notes that the state musttreat each individual person in the same manner as any other in the samecircumstance and condition.
This clause forces states to govern impartially andto not draw distinctions between individuals based on differences irrelevant toa legitimate governments purpose.3 The Equal Protection Clause alsohelps protect individual rights as by forcing states to apply their lawsequally among the people, an individuals freedom to act is not hindered unequallyby others. The Due Process Clause is the legalobligation of the state to ensure that the rights and the equality of allcitizens is met. The Supreme Court has used the Due Process Clause to protectrights that are not specifically mentioned in the US Constitution. The SupremeCourt has also used the Due Process Clause as a path for the incorporation ofthe Bill of Rights which is a practice known as “incorporation”.
4 The Due Process Clause like the EqualProtection Clause aids in protecting individual rights as it ensures the stateswill enforce the rights and equality its’citizens. In 2015, the fundamental right tomarry was guaranteed for same sex couples. The Obergefell v.
Hodges case challenged the constitutionality of individualstate bans on same sex marriage or the refusal to recognize legal same sexmarriage that occurred in another state that allows same sex marriage. It wasargued that the states with the marriage bans violated the Due Process Clauseand the Equal Protection Clause of the Fourteenth Amendment. The Supreme Courtruled that the fundamental right to marry is guaranteed for same sex couples andoverturned the Barker Decision.
5 The Justices in the Obergefell case determined that thebanning of same sex marriage and the refusal to acknowledge it violated theFourteenth Amendments Equal Protection Clause and Due Process Clause. Inreferencing the Equal Protection Clause, the ban on same sex marriage was inviolation because by denying same sex couple to marry it would deny the coupleequal protection under the law. Based on precedent, the right to marry isconsidered a fundamental liberty because it protects the most intimateassociation between two people, it is inherent to the concept of individualautonomy and it safeguards children and families by according legal recognitionto building a home and raising children.
The Due Process Clause of theFourteenth Amendment was also cited. It was determined that because there areno differences between a same sex union and an opposite sex union in referenceto the listing previously on fundamental liberty, the exclusion of same sexcouples 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 multiplereasons against lifting the ban on same sex marriage. One of the reasons theJustices cited was that the Constitution did not address it there for it isbeyond the purview of the Supreme Court to decide for the states. The Justicenoted that the Constitution and judicial precedent clearly protect a right tomarry and require states to apply laws equally but the Supreme Court can notoverstep its bounds. The Justice found no reason to alter the definition ofmarriage and did not see precedential support for making a state alter itsdefinition of marriage.
While the Constitution may notdirectly address the details of marriage, the Due Process Clause can be used toprotect rights that are not specifically mentioned in the Constitution. Thismeans the address of marriage can look towards the Supreme Court rather thanindividual states. I believe that the right to marry and the requirement thatstate apply the law equally is not being put in to practice as the states inquestion have a current restriction on marriage. The restriction itself is indirect opposition of the statement of the state applying laws equally. By notallowing 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 beinginfringed upon by the restriction on marriage as marriage is a step that manybelieve has significance in a relationship. By denying this significantstepping stone in a relationship you restrict an individuals ability to pursuelife and their goals. A second Justice joined in thedissent and his reasoning was the question of same sex marriage should be onedecided by the state.
He believes that political change should not occurthrough the Supreme Court but rather an elected judges as policy making sureoccur though the votes of elected officials.5 This reasoning wouldhave the majority opinion seen as favored and have the majority opinion pushedthrough without the opinions of the minority to be heard. I believe this wouldbe a great disservice to the rights of the minority as their rights would bepushed aside in favor of the majority’spoint of view. Tyranny of the majority is also ablatant problem in letting the majority elected judge decide the fate of theminority. Tyranny of the majority is a weakness in a democracy where majorityrules and the majority elects the person in power at the expense of theminority.
John Stewart Mills describes “the tyranny of the majority” asgenerally included among the evils against which society requires to be on itsguard.7 The second Justices belief that having the states decidemarriage would not allow the minority to have their voices heard and is anexamples of how tyranny of the majority would not let the minority expresstheir individual rights. The banning of same sex marriage isalso an infringement on individual rights. The restriction of individuals beingable 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?”, RonaldDworkin being up the idea that we do not actually have any right to liberty. Dworkinexplains that while the idea of a right to liberty is vast, he believes theargument is misguided. He brings an example of the New Deal and theunionization movement and explains many were opposed on the grounds that theplans infringed on the right to liberty.9 As the tug and pullbetween what is favored between liberty and equality, Dworkin asks the questionof whether we have the right to liberty as Jefferson and others supposed. Ibelieve that we do have the right to liberty and that the freedom to actindividually is a good balance between equality and liberty. I believe that the support for samesex marriage is stronger than the argument against allowing same sex marriage.
The Fourteenth amendment and the Equal Protection Clause and the Due Process Clauseof the Fourteenth amendment are strong enough arguments for overturning theprevious laws in place banning same sex marriage and its recognition. Bydenying marriage and its recognition for same sex couples you are denying thecouples from life and liberty. Preventing marriage for certain people alsocontradicts the equal protection clause of the Fourteenth amendment.
Discrimination based on sex doesnot align with equal protection under the law, which is what denying same sexcouples marriage and recognizing it is. David S. Cohen, JD Associate Professorat the Drexel University of Law gives a simple example explaining how thebanning of same sex marriage is discriminate based on sex. He says to “Imagine three people –Nancy, Bill, and Tom… Nancy, a woman, can marrytom but Bill, a man cannot. Nancy can do something (marry Tom) that Billcannot, simply because Nancy is a woman and Bill is a man.”10 This shows clearly how denying same sexcouples marriage and allowing opposite sex couple to marry is discriminationbased on sex and sexual orientation. Both of these of which are protected bythe Fourteenth amendments Equal Protection Clause and the Due Process Clause.
The Bill of Rights also protect individuals from discrimination and protectionof civil liberties. Richard Posner, a US Seventh Circuit Court of Appeals Judgewrote that the same sex marriage bans “discriminateagainst a minority defined by an immutable characteristic.”11 One of the most frequent arguments Ihear for the support of banning same sex marriage is that religion says it’s a sin. I believe that religious should not be takenliterally and that the times have changed from when it was written so the textneeds to be reinterpreted rather the same arguments be hashed.
While somereligious leaders have come out to publicly support same sex marriage, Ibelieve that religion and religious views have no place in policy making. I amglad that some religious figures have become more open in their views amajority of religious followers have not joined in. The United States Constitution’s first amendment notes through the Establishment Clause andFree Exercise clause that Congress can’ttouch religion in relation to making laws. The separation of church and statehas 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 thechurch and the states has been cited by the United States Supreme Court. I do not believe that the church should havean influence on the decision of whether or not same sex marriage is legal. The religiousargument against the allowance of same sex marriage violates the Firstamendment and encroaches of individual freedom. The banning of same sex marriage encroachesupon an individual right, and also the rights listed out in the Fourteenthamendment through the Equal Protection Clause and the Due Process Clause. Thecontinued argument in support of the ban on same sex couples marrying also goesagainst 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 theirlife without interference of others and limits their actions in regards to howthey are able to pursue their life goals.
Citing religious text against thesupport of same sex marriage violates the separation of church and state thatthe First amendment has been interpreted to mean. I believe that the argumentfor the support of same sex marriage is stronger than the one against it is andis backed by the legal documents.