Can Evidence Help Create Rights?

by Patrick Appel

Rod Dreher claimed that arguments for and against marriage equality are rooted almost entirely in first principles. I countered. Benjamin Dueholm complicates the debate:

"Is marriage inherently an opposite-sex institution oriented toward the creation of new life?" is not really liable to a data-driven answer. For that matter, neither is the question "Is same-sex marriage a fundamental right?" These … two questions can be answered logically, but not empirically.

Now contrary to Dreher, I think minds can change on these sorts of questions. And "evidence" can certainly come into play in terms of complicating the neat distinctions we get from whatever metaphysics we happen to be toting around with us. But we owe it to ourselves to understand that the evidence-based argument and the fundamental-right argument for same-sex marriage are, if not in fact contradictory, at least entirely unrelated. The whole point of a right, for good or for ill, is that it isn't granted or withheld based on good or bad consequences. Jefferson didn't say "We hold these truths to be sufficiently confirmed by rigorous statistical analysis of the data." And so no one who throws around a phrase like "fundamental right" has any grounds on which to accuse anyone else of, in Patrick's word, "fundamentalism." They're the same word for a reason.

There is some truth in this, but the fundamental-right argument and the evidence-based argument intersect in the court of law. The Prop 8 case is a perfect example of evidence helping to produce a legal right. Rights and evidence might be distinct, but they are hardly "unrelated." Dreher goes another round:

I’m fairly certain [Patrick] believes same-sex marriage to be a “right.” A right is something that is not up for negotiation. It exists prior to the state, and cannot be taken away. If social science were able to show, for example, that racial integration made black Americans unhappy, severely damaged their children, and was a grave threat to the social order, that would not matter. Black folks would still have the inalienable right to equal treatment under the law. Nobody would consider eliminating the right of straight people to marry simply because they make such a hash of marriage these days. If Patrick really has concluded that same-sex marriage is a right, then I would expect him to stand by that view even if evidence demonstrated that same-sex marriage was socially deleterious. Rights don’t exist only when they make people happy and prosperous. To say something is a “right” is to make an absolute moral claim on it — a claim that is not negated by instrumental reasoning.

I do believe that same-sex marriage is a right, but rights are not absolute. Both straight and gay couples should have the right to marriage. Opponents of marriage equality claim that same-sex marriage will destroy straight marriages, which, if true, would deprive straights of their marriage rights. Since there are many more straight marriages than gay marriages, it would make sense to protect the marriage rights of straight couples in this case. But, because there is no evidence that marriage equality actually harms straight marriage, there is no reason to deny the basic rights of same-sex couples. Roger, a commenter over at Dreher's blog, makes a good point:

I believe people of different races have the right to integrate at least in part because there is substantial evidence that integration is beneficial and no evidence that forced segregation is beneficial. Along the same lines, one of the main reasons I now support same sex marriage is because the evidence to date demonstrates no harm to society at large and benefits to gay and lesbian couples. In other words, analyzing the costs and benefits came before deciding whether something is a right. For so-called fundamentalists, no analysis of facts or evidence is required because their minds are not open to the possibility of change.