August 11, 2010

Horse 1097 - There Is No "Right to Marry" In The First Place

One of the things that I find most disturbing is the deliberate confusion and blurring of the lines, with regards the definitions of things. What I find particularly weird was a tweet that I received in reaction to Horse 1096. The tweet was subsequently deleted I notice, and my reply wasn't duly answered, but it left me with an intriguing question, and that is to do with the so-called "right" of same-sex couples to be married.

The really weird thing is that I wonder if the right to marry, is in fact a right in the first place.

If you read through the contents of the Marriage Act 1961, there actually isn't any mention of whether or not a "right to marry" exists, so this is of no help. There is also no mention of the so-called "right" in either the Bill of Rights 1689, or the Scottish Claim of Right 1689. Therefore, the only place where the "right" is mentioned at law with regards Australia, is the Universal Declaration of Human Rights as adopted by the UN in 1948; Article 16 does mention marriage.

Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

As I said in Horse 1096:
I believe that the main reason for the institution of marriage is to do with the formation of families; this includes fairly obviously, the raising of children, though isn't exclusively so.

Not only does the UN agree with me, but in consequence they happen to have stated that the family is also entitled to protection by society and the State. Curiously, the Universal Declaration of Human Rights does not mention either what the definition of a marriage actually is, nor do they indicate if the state should be forced to recognise something.

Now although I was married in the United States and specifically in the State of California, it could have just as easily been done in Australia. Since it is the state who happens to recognise the validity of a marriage, then this implies that it is the state which is charged with the governance of the laws with regards it.

Marriage itself is governed with the issuing of a Marriage Licence or the notice of an intent to be married and hence application of the state to recognise it. Either way, a licence or and application beforehand does NOT imply a right, but rather a permission granted by the state or a privilege granted by the state, with all the consequences applied therein and after.

Because marriage is governed by the issuing of a licence and a subsequent certificate that it has been authorised by the state, by very definition the state has conferred permission for people to marry, and therefore be recognised by the state.

There lies the answer. It is the state who gives permission whether it will recognise marriage, therefore "the right to marry" does not in fact exist.

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