I have been arguing that the notion of natural rights is incoherent and problematic because it is impossible to say what is a right by nature versus a civil right, a right created by society. Let’s take the controversial debate on same-sex marriage. Do we have a right in nature to same-sex marriage? To me, this is the wrong question. The question is really broader than this:
Is there even a notion of “marriage” in nature or is the very concept of “marriage” not already a religious conception imposed on a type of relationship that also contains sexuality. In nature, is “copulation” the same as “marriage?” Is there “marriage” at all in nature? When animals reproduce, are they married? Surely “marriage” is a concept that carries certain religious and cultural assumptions that arise from human communities and certain understandings of men, women, God, the sacred and so forth.
In what sense, then, can marriage be a natural right? And if it is instead a civil institution, then the specific society has in its purview the right to define it as it pleases including the right to eliminate the institution of marriage completely if it wishes. Marriage itself is a human institution so how can there be a natural right to it for anyone, including heterosexuals? Isn’t marriage then by definition either a religious right or a civil right? Even if one wants to argue, which I do not, that nature endorses reproduction, that does not mean that nature endorses the concept of marriage.
The point that I am making is that there is little clarity about which rights are natural and which rights are civil rights derived from society. The distinction between natural and civil rights which reaches back to the seventeenth century is problematic.
Indeed, I would argue that all rights are civil rights, for they are the rights that society picks out to affirm as most important. It is society that arrives at a notion of what’s natural based on a set of convictions and propositions about what it means to be human and what it means to be a member of that society. Each society has convictions that it develops about how what it sees as core rights should be implemented and extended for its particular social setting and moral commitments. This is why the notion of what are rights are seem to change over time, as we develop new ways of thinking about our situation, and our ultimate commitments.
So if we are going to debate whether same-sex marriage is a natural right, we should debate whether heterosexual marriage is a natural right as well. In the end, there is no stronger justification for heterosexual marriage than for same-sex marriage in nature. But there are good reasons to allow both as civil rights. I am for same-sex marriage and see no reason why all loving couples who want to commit to each other should not have the same benefits legally and why society should not call both heterosexual and same-sex marriage by the same name.