Proposition 8: Where Do Rights Come From?

California State Capitol.

Comment On Proposition 8

The purpose of this post is to examine the merits of one statement among many made in the comments of my post entitled Yes to Proposition 8 — No to Same-Sex Marriage Instruction. The statement is as follows:

Prop 8 is simple: it eliminates the rights for same-sex couples to marry. Prop 8 would deny equal protections and write discrimination against one group of people—lesbian and gay people—into our state constitution. (Rickety blog comment)

All other arguments would seem moot once it is established whether or not there is a right to same-sex marriage. And so with that intent we will proceed.

Where Do Rights Come From?

First let us look at two sentences from the Declaration of Independence, written by Thomas Jefferson and signed by 56 influential men.

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. (Declaration of Independence)

We can identify from the Declaration that unalienable rights are given to us by our Creator. These unalienable (or inalienable) rights are natural rights which do not depend on laws or beliefs. They are always present and are universal. We also observe that governments derive their power from the governed and are to protect these natural rights. Government also passes laws to give legal rights (also called civil rights) which are not absolute but relative.

Is Same-Sex Marriage a Natural Right?

So is same-sex marriage a natural right? Let us examine these natural rights, those rights that come from God, for any clues. From the following scripture we can see that God meant for man and woman to be one flesh (married) and that man was not to break that union:

And he answered and said unto them, Have ye not read, that he which made them at the beginning made them male and female,
And said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh?
Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder. (Matthew 19:4-6)

Marriage between a man and a woman is a natural law. It is approved by God, is universal, and has been practiced from the beginning. Now consider the following scriptures:

For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature:
And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet. (Romans 1:26-27)

It is obvious from the above scripture that God does not approve of the act of homosexuality. This is not an isolated scripture. In the following scripture “abusers of themselves with mankind” refers to the homosexual act:

Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind,
Nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God. (1 Corinthians 6:9-10)

“Effeminate” in the above scripture refers to Catamites, adolescent boys in a sexual relationship with an adult male. Obviously in the following scripture “them that defile themselves with mankind” refers to homosexuality:

Knowing this, that the law is not made for a righteous man, but for the lawless and disobedient, for the ungodly and for sinners, for unholy and profane, for murderers of fathers and murderers of mothers, for manslayers,
For whoremongers, for them that defile themselves with mankind, for menstealers, for liars, for perjured persons, and if there be any other thing that is contrary to sound doctrine; (1 Timothy 1:9-10)

It cannot be said that same-sex marriage is a natural law. It certainly does not come from God.
Arnold Schwarzenegger, 38th Governor of California.

Is Same-Sex Marriage a Legal Right?

As of May 2007, twenty-six states have passed constitutional amendments explicitly barring the recognition of same-sex marriage, eighteen of which, including Utah, prohibit the legal recognition of any same-sex union. Nineteen additional states have legal statutes that define marriage as a union of two persons of the opposite sex. As of October 10, 2008, Massachusetts, California and Connecticut permit same-sex couples to marry. In 1996, the United States Congress passed the Defense of Marriage Act defining marriage as a union between a man and a woman amongst other stipulations.

So whether one likes it or not, in Massachusetts, California, and Connecticut couples have the legal right to a same-sex marriage. We are concerned with California so we will look at a little of her history:

Since 1977 the California Civil Code has defined marriage as:

…a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.

Here we see that marriage is defined as between a man and a woman hence same-sex marriage was not a legal right. It was non-existent. I will however make an important point: if same-sex marriage was a natural right then we could claim that the government was suppressing a God-given inalienable right. But no such natural right for same-sex marriage exists.

At the March 7, 2000 primary election Proposition 22 was adopted by a vote of 61.4% to 38%, thus adding § 308.5 to the Family Code, largely replicating the 1977 enactment. The one-sentence code section explicitly defines the union of a man and a woman as the only valid or recognizable form of marriage in the State of California. With Proposition 22, the majority of voters effectively determined that same-sex marriage was not a right.

On May 15, 2008 the California Supreme Court struck down California’s existing statutes limiting marriage to opposite-sex couples in a 4-3 ruling. The judicial ruling overturned the one-man, one-woman marriage law which the California Legislature had passed in 1977 and also Proposition 22. For more details see Same-sex marriage in California.

Now same-sex marriage is a legal right in California, even though the majority had previously said it was not. And so we arrive at Proposition 8. If it passes, then there will be no legal right to a same-sex marriage. It will be as if the right never existed. Except of course the constitutional amendment will likely not be retro-active and therefore some Californian same-sex marriages will still exist. It was unfortunate, and in my opinion irresponsible, that the judges did not stay the implementation of their decision until after the November election.


The commenter says that passage of Proposition 8 would discriminate against gays. By definition the state constitution cannot deny equal protections or discriminate because the constitution is the supreme law and defines the rights for the state. As shown, same-sex marriage is not a natural right. It can be a legal right depending on the will of the people. Where the people’s vote decides there is no legal right there cannot be any discrimination. The right simply does not exist, natural or legal.

Related Articles

Same-Sex Marriage and Proposition 8. Includes LDS documents, interviews, video, and links to websites.
Rickety signature.


  1. Thank you for your post. I agree that every child should have a mom and a dad. I liked your website, full to the brim with very informative posts. I hadn’t read Orson Scott Card’s piece on same-sex marriage, it was a good read. I didn’t know about France banning same-sex marriage, and for very good reasons too. Unfortunately I live in Utah so I cannot vote, but nevertheless Yes on Prop 8!

  2. Children have a right to a mom and a dad. The state of California allowing same-gender marriage may seem progressive to some– –but what it says to me is that the state of California sanctions a relationship that does not best serve children.

    While no heterosexual parents are perfect, and some situations are down right abusive and traumatic, the response is not to eliminate a child’s right to a mom and a dad. The response is to better educate, better encourage, better help parents be better.

    While a lesbian couple or a gay couple may provide a stable home, love, and support to a child. By definition, a same-gender marriage cannot provide them a mom and a dad. Every child has the right to a mom and a dad.

    Society should sacrifice for the health and well being of its children.

    This is why I am voting “yes” on prop 8 (on my absentee ballot).

    yes on prop 8!

  3. The same-sex marriage activists hide behind the language of civil rights to obscure what they are really seeking–society’s stamp of approval for their chosen lifestyle. They don’t want us to consider that their definition of marriage is drastically different from marriage as it has always been known and understood–the union of a man and woman which perpetuates society through the bearing and rearing of children. We cannot allow true marriage to be redefined and undermined. I have written several blog posts regarding proposition 8 and marriage, including this one:
    Thank you Rickety for you well-reasoned support of Proposition 8

  4. You have certainly laid out a good case for same sex marriage. It certainly is no trivial matter as there are firm beliefs on both sides of the matter. The difficulty is that there are so many people at stake and there doesn’t seem to be any clear correct answer.

  5. The intent was to build a case in favor of traditional marriage. However, if laws are passed in favor of same-sex marriage then the laws should be honored unless they violate already enumerated constitutional rights. It is such a crock to put Proposition 8 in jeopardy after it was passed.

  6. Prop 8 takes thousands of rights away from same sex couples. There are over 1138 rights and privileges that gay and lesbian couples do not get to benefit from. It’s sad and a shame that they lose things such as rights to their own kids, hospital rights and so forth and so on. From a purely legal standpoint I have to disagree strongly with Prop 8.

  7. Talia,
    To simply claim that same-sex marriage is a right is not enough. A brother and sister could also falsely claim the right to marry. As I have explained in my blog, legal rights are defined by the people and/or their elected representatives. Proposition 8 passed and the will of the people upheld. Even the same body that erroneously allowed same-sex marriage to temporarily become legal quite rightly bowed to the people and reversed their decision. In states where same-sex marriage has become legal, then fair enough it is the law.

    As it cannot be shown that same-sex marriage is a natural law, then legally no rights have been denied in California.

  8. I dont even understand why this is still a question. Who cares if they get married, are we still living in the 18th century? Who are these biggets that care so much about preventing other peoples happiness

  9. It’s unfortunate that you discriminate against non-Christians in your definition of inalienable rights. The Constitution says they are granted us by our Creator. My Creator has no problems with homosexuality or same-sex marriage. I have the inalienable right to both. In my world, these rights are natural rights which do not depend on laws or beliefs. I admit I find it somewhat humorous that you dismiss my natural rights (which do not depend on beliefs) by citing your beliefs in the form of Christian scripture. I can quite easily demonstrate these are *natural* rights under my belief system.

    But ignoring that entire argument… If you and the other supporters of Proposition 8 want want to sanctify the word marriage and keep it between a man and a woman, so be it. Then allow a civil union, which grants LEGAL rights to people who care about each other, for whatever reason. It’s ludicrous to say that two people who have lived together for 30 years but aren’t related by blood or marriage should be denied basic legal rights that are granted a man and a woman the same day they sign a piece of paper and say “I do!”

    Your thread is nothing more than a veiled form of bigotry. Just because the majority wants something doesn’t make it right. Gay marriage harms neither you nor yours in any way. All it does is go against your belief system and so you and yours pass laws to force your belief system on others.

    And no. I’m not gay. And I’m not now nor have I ever been (and nor will I ever be) in a same-sex marriage. The difference between us is that I see freedom to worship who you will and live as you will as an inalienable right. You seek to force others to live only as you see fit.

    • It is the Declaration of Independence that states that men “are endowed by their Creator with certain unalienable Rights.” The Constition does not use the word “Creator” or “God.”

      Unalienable rights, or natural rights, are considered to be self-evident and universal. See Wikipedia: Natural and legal rights. If you choose to make up your own natural rights then that is your business. However, your credibility will be suspect, especially in claiming that homosexual marriage is self-evident. Also consider that the word “universal” has an element of time assciated with it in the case of natural rights. For thousands of years the institution of marriage has been between a man and a woman. Until quite recently, in a limited number of countries, there has been no such thing as a marriage between persons of the same gender. See Same-Gender Attraction.

      Answers to your questions about civil unions and if homosexual marriage is harmful to others are also answered in the above link.

      You write, “Your thread is nothing more than a veiled form of bigotry.” It is unfortunate that when individuals lack credible arguments that they resort to elementary propaganda tactics. Name-calling is a device to make us form a judgment without examining the evidence on which it should be based. Here the propagandist tries to appeal to our hate and fear. See How To Recognize Propaganda.

      When it comes to force, consider that if we are forced to accept same-gender marriage, then the traditional definition of marriage no longer exists. To have both would be a “definitional impossibility.”

      Thank you for taking the time to comment.

      • Same-Gender Attraction has arguments set forward by two mormons. Where is the balance in that? Glenn also makes a good point, which you have dodged, that you claim unalienable rights are given by God, as claimed in the Declaration of Independence. The fact that a creator isn’t mentioned at all in the Constitution is moot. In fact, since the Bill of Rights sets out your rights, including the right to freedom of religion, you’re going against that by setting a solely religious argument against the right to gay marriage.

        Also, ‘Love Thy Neighbour’? ‘Judge Not, Lest Ye Yourself Be Judged’? Even if these people are going to Hell for what they do, you have no right at all to tell them how their lives should be lived, and what they are and are not allowed to do.

        • The article was meant to show a small part of the religious evidence. Comments are open for others to express their views. What evidence do you set forth that homosexual marriage is a right?

          God is the judge. When a person quotes scripture clearly, showing God’s will, that is not judgment. Your statements could be viewed as judgments and not loving your neighbor, using your own criteria. However, I don’t see it that way, you are expressing your beliefs stemming from your world view. Nothing wrong or judgmental about that.

          We both advocate a definition of marriage. It has to be one definition or the other. One wins, the other loses.

          Appreciate your comments.

  10. i like this blog a lot.
    we are now facing the same issues here in belize.
    i’d like to say, let’s suppose that there is no God, then there could be no rights.
    see right comes from a system of belief that includes right and wrong.
    i cannot see the right to a wrong ever being passed.
    if you study the issue correctly this thing comes down to public safety, public health and
    the legal right.
    the spread of aids being predominantly spread by homosexual men.
    men having to wear diapers because they lose control of there anal muscles.
    e r trips because of light bulbs and foreign items being placed into anus’.
    i don’t believe it is a right.
    i agree with rickety/
    on the other hand, i’m not sure any of it is criminal either.
    morally worng yes but legally wrong, i don’t know but i sure do prefer that
    it stays the way it is becuase i have seen where it spreads over into many other issues and
    when the confusion takes over, we are all doomed with a dysfunctional society.
    there is enough dysfunction with sex to add a legal and acceptable unnatural act to be okay to me us just wrong and not right.

    • AIDS is not predominantly spread by homosexual men, that’s a myth. For a start, AIDS can’t be spread, HIV can be. AIDS is a syndrome caused by HIV, nothing more. HIV is spread predominantly by the sharing of needles among drug users, and by unprotected sex in general, something hardly limited to gay men. The number of cases of men having to wear diapers is utterly tiny, negligible in fact. Likewise with the hospital trips. The only reason you claim gay marriage to be wrong, as the argument always ends up being, is that God says it’s wrong, and God is the only one capable of transferring rights. Does that mean that atheists are anarchists, and don’t believe in their rights? People do not need God.

      If your morals tell you that gay marriage is wrong, then that’s fine. However, yours is not the only view, and many people will choose to disagree with you.

      /* Paragraph deleted by Rickety */

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