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.

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