“结婚权”是否是“天赋人权”的一部分？



我浏览了一下美国最高法院关于这次“同性婚姻是否合法？”的辩论和判决，发觉最关键的一条是赞成一方法官提出的，“same-sex marriage is a right”therefore, protected by United States' Constitution。



With all the respect, I dissent. Here is why.



“天赋人权”，是人的“自然权利”。也就是，人，生到这个世界上后自然应该有的权利。比如美国宪法里提到的“自由，财产，追求幸福”等等 - 注意，所有这些权利的特点是：完全从个人的角度出发，不涉及身外对象(所以无法或不应该被剥夺)。也就是说，如果人的行为必须涉及他人，则是完全两码事了。



婚姻和家庭的基础是什么？当然首先是性关系(注意：不是异性之间的关系)。那么

发生性关系是否是天赋人权的一部分？当然不是，因为它涉及除自身之外的一方。如果对方是另一个人，则自己必须征得别人同意。否则，强奸犯罪就不存在了。



那么，如果性关系非天赋人权，婚姻和家庭如何成为“天赋人权”呢？这显然逻辑不通。再者，个人或少数人的性取向，是“个人或少数人的需要”；而婚姻和家庭，是“社会多数人的需要”，也就是法律。个人/少数人需要怎么可以强加于多数人的需要呢？既，个人/少数人需要怎么可以获得同社会多数人需要一样的平等权利呢？(见我前面讨论过的“婚姻和家庭成立的二个要求”)美国国父们是对的，只是到了今天遇到了“歪嘴和尚”- 念错了经。



基于上述原因，I BEG TO DIFFER.





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FYI:



The Supreme Court justices in their own words



A sketch showed civil rights lawyer Mary Bonauto (right) argued before the Supreme Court during its hearing on same-sex marriage in April.



Dana Verkouteren/AP



A sketch showed civil rights lawyer Mary Bonauto (right) argued before the Supreme Court during its hearing on same-sex marriage in April.

By Laura Amico Globe staff  June 26, 2015



Many of the main questions the Supreme Court grappled with in the oral arguments of Obergefell v. Hodges — the landmark case that extended same-sex marriage rights to all — made appearances in the Court’s summary.



Below are key points from the summary of the opinion released today as well as audio excerpts from the justices’ questioning during oral arguments in April.



How marriage has changed over time



“The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed definitions of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.”



At oral arguments, this question was posed by Justice Anthony Kennedy, who was widely seen as the swing vote in the case and did, in fact, side with the majority and wrote the opinion. Justice Stephen Breyer, who also voted in the majority, asked about tradition as well.



Justices Samuel Alito and John Roberts, both of whom dissented, also spoke about the history of marriage, foreshadowing what became a 5-4 split on the decision.



On the privilege of marriage



“The petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect-- and need-- for its privileges and responsibilities, as illustrated by the petitioners’ own experiences.”



In oral arguments Kennedy spoke about the “nobility and sacredness of marriage,” saying that same-sex couples could uphold that.



Is marriage a Constitutional right?



Justices Sonia Sotomayor and Elena Kagan, in oral arguments, spoke forcefully about the Constitution and marriage rights. Both sided with the majority in the ruling.



The opinion said simply:



“The Court has long held that the right to marry is protected by the Constitution.”



And later:



“The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.”



Four ‘principles and traditions’



In the summary, four “principles and traditions” supporting same-sex unions were outlined, all of which had been key discussion points during oral arguments. Said the opinion:



“Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy...



Sotomayor addressed this point in oral arguments.



“A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals...



Alito, who voted against extending same-sex marriage rights, spoke about point two in oral arguments:



“A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser...



Again, Sotomayor:



“This does not mean that the right to marry is less meaningful for those who do not or cannot have children...



From Kagan:



“Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order... It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purpose of marriage.”



Was same-sex marriage a question for the Court or the states?



The justices’ major dissent came on the issue of the role of the Court in what could have been a matter of states.



From Justices Roberts and Scalia at oral arguments:



Even Breyer, who sided with the majority, questioned whether the Court had the responsibility to intervene.



But the majority found that waiting for states to take action would be harmful.



From the opinion:



“While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not wait legislative action before asserting a fundamental right.”



More coverage of the gay marriage ruling：

Supreme Court rules same-sex marriage is a right