For a legal perspective on "Fundamental Rights," see Bill of Rights 2 and Glossary of Rights

Here follows a discussion of the notion of "fundamental rights," particularly as they have been considered in relation to same-sex intimacy and marriage.

An earlier Hawaii state court decision holding a same-sex marriage ban to be unconstitutional was based on equal protection analysis. But an Alaska judge seems to be claiming that the choice of an intimate adult partner (and in his mind even a marriage partner) might be viewed as a fundamental right.

1- "Fundamental" or "natural" rights are said to be self-evident. Their legal substance comes from the Bill of Rights, other amendments, state constitutions, statutes (state and federal) and case law. Some people feel they should be derived from "moral absolutes," which may well turn out to have a religious basis. Others emphasize that rights are not endogenous unless they do not depend on any policies of government which could intrude upon other comparable rights.

2- It could be claimed that the right to intimate contact or even cohabitation with an adult partner of one's choice is a fundamental right (even though Bowers v Hardwick denies this) even though the right to "marry" such a partner may not be. Why? Because partners of a marriage receive benefits from society (that is, the state) that as a matter of mathematical logic, others who do not or cannot "marry" must help subsidize and pay for. Marriage supposedly benefits larger society as well as (in any immediate sense) the individual participants. This would no longer fit into the realm of "fundamental rights." (Well, maybe it could because the Supreme Court majority in Hardwick had talked about fundamental rights as being deeply rooted in social tradition - like marriage and procreation, etc. - some rather careless reasoning). One can study a libertarian argument on the state involvement with marriage in "Licensed Expired" (G. Cisewski) in see March 1996 Quill). On the other hand, author and former New Republic editor Andrew Sullivan (Virtually Normal, Knopf, 1996) often talks about "marriage" as a fundamental right, despite his conservative approach to most legal and policy issues.

3- If a judge says that the state must show a "compelling interest" in dealing with a purported right, the inference is that the judge regards it as a "fundamental right." This appears to be the case in Alaska. However, this is the logical "converse" of the way this issue is usually presented: that a fundamental right invokes compelling state interest before it can be overridden.

4- We then seem to have some disagreement in our case law and even intellectual history: Are "fundamental rights" those that are self-evident and left to the people? (Ninth Amendment). Or are fundamental rights just those rooted in "tradition" that serve a larger purpose than just the individual. Boaz, Mayer (his book on Jefferson) and other libertarian writers have consistently argued the former. Can we get the federal courts to do so?

5- Then, given the uncertainty of #4, it's understandable that constitutional lawyers go after other arguments - equal protection (successful in Romer and now being encouraged in the military cases - Able - by Feldblum and others). This might work, but the problem in principle that I have with this is that we wind up with a social conviction that people get their rights by belonging to minority groups or other interest groups and bartering with the state or with other groups. This gets back to the "special rights" or 'privileges" idea which is paradoxically critical to "marriage "itself. Do we all have the same rights or don't we?

6- We can even throw one more wrench into this discussion: a notion of "exalted" rights. "Exalted" rights would be those activities which are held so important to "freedom" that not only must the government not interfere with them, but also the government must affirmatively support them by drawing a "moral" line that interferes with what otherwise seem to be legitimate (putatively "fundamental") rights. An obvious example is the right to life and therefore the limiting of women's privacy rights in trying to prohibit abortion. Another might be practice of religion, and giving religious organizations exemptions from civil rights laws (as well as other preferential treatments). "Family values" certainly invokes this concepts: if the (heterosexual) marital relationship is seen as a deeply rooted "exalted right" it may be reinforced at the expense to others: forcing people who don't beget children to help support parents who do. One can ask, why shouldn't the right to an adult significant other be similarly "exalted." This can provide a "conservative" argument for anti-discrimination laws protecting gays: one that is based on a right than on a membership in a minority group. The problem, for all of these rights, is that they do force the state to make, through representative democracy and "majority rule," sensitive moral judgments. Yet the moral issues underneath these problems still need to be faced and debated cleanly.

Copyright Bill Boushka Gays and Lesbians for Individual Liberty

Posted on queerlaw 2/28/98

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