Rights Positive Or Rights Negative

Apologies to any who care, but I have next to no time to blog recently.

Certain arguments have always mystified me.  I tend to chew on them a while, and then reconcile.  But some just need to be exposed for the bullshit they are.  Take this, for example.  The other day, in a generic links post, Jay offered up a cornucopia of good reads.  What was not among them was any link concerning Gay rights, or so one would think.  What was among them was a link about Colorado legislators thinking that AIDS was cool, and homosexuality is murder.  I would treat with those claims individually, but you'll notice that the tags to this post do not read "The Deeply Stupid".  No, what caught my eye was a response from sydney@alias, lying about the left since 2001.

(A side note.  Seriously sydney, consider how much time your brethren call 'the left' out for 'lies' .  You claim that you have been - Keeping the Left honest since 2001 .  Doesn't that mean that you really suck at your job?  You should be fired.  Hell, I'd fire you for incompetence.)

Sydney says:

Gays already have equal rights.

Notice, that's a complete non-sequiter, but it is telling about the right's view of rights.  Hence, this post.

I don't think one need go too far out to say that syd was claiming that gays have all the rights that straights do.  They can own guns, speak freely without government control, not be required to house troops in their homes, get married ... whoops.  No they can't.

Now, I'm certain that syd would argue that gays can get married as long as a gay man marries a woman or that a lesbian marry a man.  In plain simple speak, gays have the right to do what they have no desire to do.  That is a rather simplistic and stupid 'rights negative' view.  Our rights are meant to protect us from doing what we don't want to do.  Obviously, many of our enumerated rights are that very thing.  We cannot be forced to give up our weapons, or be forced to quarter soldiers.  In similar vien, we cannot be forced to marry someone we don't want to marry.  That is all well and good.

Our positive rights are enumerated as well.  We have the right to keep and bear arms.  We have the right to a speedy exposition of justice, we have the right to representation under the law.  We had all the rights of Habeus Corpus, but a particularly dick-headed President didn't think that gave him enough power, so we'll see what happens.  These are positive rights, things we are owed, things we deserve without qualification and things that cannot survive challenge against them.  These are things that add benefit to our lives as Americans, and the courts have supported these things positively as Americans.  Among these is an unquestioned right to get married to whom you choose ... unless you're gay.

There's a bit of a conflict here, don't you think?  A positive right that cancels a negative right is of no consequence at all.  It is not a right at that point, but a tautology.  You are allowed to get married to whom you choose (positive), but you are protected from marrying whom you don't choose to marry (negative).  The negative really has no meaning because you've already been given the right to supersede it.  That's fine, unless whom you choose to marry you are prohibited from marrying.  Defining a right such that it negates the positive is often a source of outrage.  Being forced to marry whom you don't wish?  A HORROR!  And well it should be.  Being given a right to do what you don't want is a dismissal of the positive, if the positive is negated by that thing, and tells you that you don't have that right at all.  Telling people they are welcome to quarter troops in their home negates the right not to quarter troops in their homes, if it also says they have no right not to quarter troops.   Being able to marry only the one you don't want to marry negates the right to marry whom you do if that law or statute says that you can't. 

So lets bring this back to syd, and her lack of honesty.  Yes, gays have the right to marry as they don't want.  But they have no right to marry as they wish.  Straight people do not suffer from this negation of a positive right.  Syd is quite clearly wrong.  Gay people do not have equal rights because gay people do not have the positive right to marry who they wish.

I can't be the only one (and I'm certainly not) to have noticed that miscegenation laws failed for the very same reasons.  prohibiting people from accepted positive rights is just bullshit.  Hiding behind the negation of accepting negative rights is just masquerade.  Gay people do not have equal rights.

Comments

[Steve]

You have an interesting point here, although your term "positive rights" has a slightly different meaning in constitutional law studies. We the people are the sovereigns who give to the government limited authority. Certain "rights" are really a withholding by us, of powers that we do not allocate to the government.
As to your post, nowhere in any copy of the Constitution does it even mention marriage. Why the government thinks that they have any need to regulate is beyond me. In fact, it is the attempts at regulations that causes courts to create rights where none are needed, which then leads to opposition to the court imposed "rights." As vicious a circle as has ever been invented.
Let's just fall back to the constitutional protections of the right to assemble, from which is also the right to association. The government cannot regulate who you want to associate with, even if that association is in the form of gay marriage. There is no good reason to prevent marriage between people, even polygamy if all of the parties are consenting. It is none of the government's business, nor anyone else.
The only argument that can be made for preventing gay marriage is that it leads to gay divorce.

[Amerith]

Should we prevent straight marriage to prevent straight divorce? There are other rights that are contingent on marriage, like the right to visit a spouse in the hospital and make decisions for her/him, the right to survivor's benefits, tax benefits, and being covered by a spouse's insurance. If you deny gay couples legal marriage you deny them those rights. That is why government has to step in and make gay marriage legal.

[Eric Coobs]

As usual Rob, you are wrong.

"Gay people do not have equal rights."

Yes - they do -

If I decide to turn gay tomorrow I would have exactly the same rights I have today -

BTW - I'm not planning on it -

What the militant gays are promoting, is special rights for gays -

such as extra protections against discrimination, and 'victim status' so that if you hit a queer you go to jail, etc.

And yes Rob, I'm still wondering why you decided to start championing their issues at every turn....

[Steve]

"Should we prevent straight marriage to prevent straight divorce?" Er, that was tongue in cheek. Sorry you missed it.
"That is why government has to step in and make gay marriage legal."
But isn't that the point? Why is the government involved at all? It's none of their damned business.
Most of the worst restrictions come in the form of hospital regulations instead of laws. It is the hospital who delineates which persons are allowed.
If I am in the hospital and I am dying and want my dog to comfort me, the only reason to prevent the visit is for the obvious amounts of hair that the dog would be bringing in. Gays should have no more problem than anyone that the hospital would allow in. Whoever the patient wants should dictate, not the hospital. And it is just these sort of petty tyrannies that we allow to be imposed upon ourselves that sell our freedom short. Do what I do, whenever there is a sign that says "Authorized Personnel Only" I immediately authorize myself.
As to the employment discrimination, I agree with it. If someone is straight, they have no claim if they are not hired. If some business declines to hire someone who is gay, they lose out. If they fire someone already employed, there are plenty of laws that protect the employee already, so employment is really a non-issue.

[Jay Stevens]

One small defense of syndey: I expect she (?) was responding to this comment: "And doesn't Representative Howard's self-righteous trilling on the Rotunda Report remind you of someone else who got mad? Does Representative Howard really want to discuss "character," after his party tabled a bill that would give gays equal protection under the law, and stalled a program that had support of 70 percent of the electorate?"

I was referring to the proposed change to existing hate crime legislation to include gays...

Still, only your segue was faulty. The rest is spot on.

[Tanaria]

Huh, funny, I could have sworn if you hit a straight person, you also go to jail, maybe I was wrong, maybe all of those criminal reports about such things happening are just the cops lying... Or maybe Eric Coobs is just a small minded nincompoop... Lets see, which is the more correct choice, let's use Occam's Razor... Which is the explanation that uses the least assumptions. Ah yes, that Eric Coobs is a small minded nimcompoop!

[Tanaria]

Oy yoy yoy steve, should've would've moronic have. I mean seriously, they shouldn't have more of a problem, means that there is no problem? Sounds like a pretty big reach to me. If you have to reach any farther you will be able to touch the moon. Just because there SHOULDN'T be a problem, does not mean that there ISN'T a problem. And nice, comparing gay people wanting to vist loved ones in the hospital to a patient wanting a pet in the hospital. Not the same thing in any stretch of the imagination. And quite frankly, most hospital security doesn't go for the whole, I say I'm important, ergo I am important. Quite frankly, I'm going to invoke Occam's Razor a second time, and say that you are being quite silly, which is a more reasonable assumption than thinking that just because someone says they are authorized, that hospital security will agree. And I like the whole victim's argument too. *shakes head* Really. We could make it so that loved ones can visit the patient in a hospital, and make it so that no hospital can deny this basic of human decency by simply writing a law. That way if I ever own a hospital that you have a loved one in, there will be no way to keep you from visiting them. Or do you really think that I would accept automatic authorization from someone like you, just because you say so. In fact, I would like to see you try to enter the patients records room with your "authorization" or maybe it will work if you go to one of the nuclear missile sites and say that you have authorization to enter them because you say so.

[Wulfgar]

Jay, I wanted to deal with the inclusion of gender in hate crimes legislation, but frankly you, myself and others have already made that argument so many times it has almost become pointless to keep trying. When one offers the blanket statement that gays already have equal rights, that I just wanted to tackle on it's face.

Steve, I agree with you in principle that the government shouldn't have any say in the social custom of marriage. But under law, marriage is a legal property relationship, with all the attended protections offered any other such relationship. Offering those protections to some and not others is a clear denial of rights. That is all I am arguing.

The libertarian take on that frequently is that 'the government is doing it wrong' in first place. That's handy, but it doesn't address the issue of whether the government is doing it *fairly and equitably* in the case that really exists.

Coobs, you remain an idiot. You can't 'turn gay' tomorrow any more than you could turn yourself into an toad (though most would likely not notice the difference if you did). Two things about my championing gay rights. 1) I have always championed gay rights. That you are just noticing shows your own ignorance, and nothing having to do with me. 2) Only an idiot such as yourself would question someone's motivation to do the right thing. Since your not really fooling anyone about it, why not display your bigotry openly and just call me a 'queer lover'? It'll make no difference to me either way, but at least you won't look like such a coward ...

[Matt Singer]

"So that if you hit a queer you go to jail."

Heaven forbid hitting someone should ever be a crime...

Anyways, I've wondered lately why some LGBT folks don't start holding marry-ins and have gay men marry lesbians with a marriage certificate and make a bigger mockery of the institution?

[Sheila N.]

You shouldn't be dissing toads that way Wulfgar - unlike Coobs, toads are cute (I have no clue what Coobs looks like on the outside but it's what inside that counts with people (haha) and cute is certainly not what Coobs is!). Also, toads are useful - they eat insects, grubs, slugs, worms and other invertebrates.