The Making of a Civil Right

Connor Ewing: Saying something is a civil right is to offer a description, not to provide a justification.

Same-sex marriage, Michael Bloomberg

Just hours after President Barack Obama expressed his support for same-sex marriage, New York Mayor Mike Bloomberg released a statement applauding the move. While Bloomberg’s support for the conclusion of the president’s personal evolution on the matter is anything but surprising, his views about civil rights are considerably more interesting because they are distortions of political history and symptomatic of the general muddled public thinking on civil rights.

His statement, in relevant part, reads:

This is a major turning point in the history of American civil rights. No American president has ever supported a major expansion of civil rights that has not ultimately been adopted by the American people—and I have no doubt that this will be no exception.

Notwithstanding Bloomberg’s confidence about the resolution of the marriage debate—the basis for which some might question, especially in light of very recent events—his characterization of civil rights history is, to say the very least, puzzling. By his estimation, civil rights are protections and entitlements whose moral and political authority depends on the power of the state. For those things yet to be codified in law, like same-sex marriage, it is just a matter of time before someone brave enough comes along to fight for their inclusion. Only by this understanding can the mayor look back on American history and tell his tale. Call it the Great Man Theory of Civil Rights: if not for the heroic actions of a courageous politician or activist, certain civil rights would languish in history’s legislative hopper, awaiting their elevation to law.

As dramatic and enchanting as this story may be, it’s just not an accurate account of what has happened. And that’s because civil rights aren’t what Mayor Bloomberg thinks they are. Far from the platonic ideals he fancies them to be, civil rights are simply those things the state has, through concrete political acts, decided to recognize and protect by law. This is not to say that civil rights are insignificant or any less worthy of protection, but only that they are fundamentally a matter of legal recognition. It is, therefore, a logical impossibility for the potential of state recognition to be a justification for state action. To call something a civil right is to describe it, not to provide an argument for it.

When its advocates claim that same-sex marriage is a civil right, what they are really saying is that it should be a civil right. And as a matter of political strategy they are wise to do so. By evoking America’s civil rights tradition, they are seeking to benefit from the political and moral victories that have secured equal treatment before the law regardless of race or gender. It was the burden of the abolitionists, the suffragettes, and the leaders of the Civil Rights Movement to build the political consensus necessary to gain civil recognition, to adduce the reasons why the power of the state must recognize the legal equality of men and women, blacks and whites. Their end goal was civil recognition. They got there not by appealing to the power of government, as Bloomberg does, but by forcefully asserting what it was incumbent upon the state to recognize.

It’s telling, and more than a little unnerving, that in our day we’ve elevated actions of the state to transcendent importance, that the strongest argument we can make on behalf of a public policy is that it should be recognized by law. We must remembered that there was a time, a shamefully long time, when women’s and minority rights were not legal guarantees—when they were not civil rights. And that is why the power of the state is an awfully weak foundation on which to ground something like marriage, an institution that both sides of the debate believe is quite more than merely a matter of legal recognition.