In recent discussions about new laws in North Carolina and Mississippi, the issue of gay marriage decisions by SCOTUS arose. One commenter stated that SCOTUS had granted a right never before held by gay people, the right of same-sex couples to marry. The comment I specifically object to said this:
"It is a right that nobody had before gay marriage passed. "
This comment is a frequent misconception about human rights and the role of the courts and the Constitution in the area of human rights. Conservatives and Liberals often share the same "shorthand" discussion when they talk about rights being "granted" by SCOTUS. SCOTUS does not grant any human right.
I feel compelled to expound a little further in this article in order for future discussions to reclaim the original intent of the Founders as to the existence of basic human rights and how and when those rights are acquired.
When the idea of a United States of America, independent of Britain, was being formulated, numerous philosophies and ideas about government and the rights of the governed were hotly debated and codified. John Locke's treatises on government and his other writings were the major source of inspiration. Locke had synthesized many other Enlightenment ideas, and Jefferson and others relied on these writings to construct the Declaration of Independence.
Locke describes the purpose of government as protecting rights that humans already possess and that cannot be denied by government, including "life, liberty, health, and indolency of body; and the possession of outward things" (A Letter Concerning Toleration) , as well as "a careful and constant pursuit of true and solid happiness" (Essay Concerning Human Understanding).
After debates, especially about the role of property, Jefferson wrote it like this in the Declaration: "We hold these truths to be sacred and undeniable; that all men are created equal & independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness..."
Human rights are therefore part of a human's existence when they are "created" and the rights are granted by being human. Rights are not conveyed by a religion or a government or a Constitution or any other power or document.
"I am, therefore I have basic human rights." (apologies to Descartes,"Cogito ergo sum" ).
That is why I wrote this in response to this erroneous way of discussing rights as being granted by SCOTUS:
"The courts, including SCOTUS do not grant rights nor can they take them away. The body of Common Law and the Constitution describe how rights may be restricted (or not) by government. Human rights are inalienable and existed long before Common Law or the Constitution."
Therefore, SCOTUS did not grant anyone the right to same-sex marriage. The right to be independent of government in the basic human right of marriage has always existed as part of the "pursuit of true and solid happiness" as Locke put it. What SCOTUS did was reaffirm that right and to set limits on how government may restrict marriage. SCOTUS specifically decided that states were violating the protections of our human rights in the Constitution that requires due process and equal protection under the laws as part of any restrictions placed on rights that already exist from "creation".
My recommendation (and plea) is that future discussions refrain from stating that courts had "granted" basic human rights, since, in our philosophy of government and the rights of the governed, they do no such thing. They only protect the rights that we already have from restrictions that violate those rights.