Mitch addressed my response to the Elon poll. However, I view this as a “teachable moment” on something that I consider critical: positive v. negative rights. Some may argue that these distinctions are simplistic (I don’t have time to dispute this), but it is a very useful framework for understanding legal and policy issues.
A negative right is a right that the government can’t interfere with–for example, I have the right to bear arms and the government can’t infringe with that right.
A positive right is a right that imposes an obligation upon the government to ensure that individuals enjoy the right. For example, if gun ownership was a positive right, the government would be required to ensure that individuals possess a gun.
Generally, the United States Constitution is comprised of negative rights–individuals have rights and the government may not interfere with those rights.
Liberals start pushing “positive rights” such as a right to health care or a right to education. As we have seen with NC Constitution’s provision dealing with education, positive rights as a practical matter create numerous problems. The judiciary has to act like a policy-making body to examine whether the government is doing what it needs to to ensure that the positive right is being protected.
The public inherently understands these distinctions and realizes that there’s something fundamentally different from something like a right to health care (positive right) v. a right to be able to choose one’s health care provider (a negative right). It is important and useful to understand these key differences in both law and policy.
Applying all of this to the marriage issue, I’d imagine that a negative right on same-sex marriage, such as the government can’t interfere with same-sex marriages would probably get a decent amount of support.
On the flip side, a positive right, which same-sex marriage advocates want (they want the government to recognize the same-sex marriage) is clearly opposed by the public. The proposed amendment is simply written in a way to make it clear that the state has no positive obligation. Same-sex marriages still can occur, but they will not receive the recognition of the state.
In very simple terms: The public is probably fine with same-sex marriage, but if you want the state to sanction the same-sex marriage, that’s a whole other story.
