Finding the Rights Argument in the Same-Sex Marriage Debate

by
February 4, 2015

Over the past decade, traditional marriage supporters have been losing public support, with data from the Public Religion Research Institute showing anti more than 20 percent decline during the period. Evangelicals are also waning in their opposition to same-sex marriage most recently detailed in a Time Magazine piece. Yet, of late, traditional marriage supporters have been adopting a strategy that may improve their public case.

For years, same-sex marriage supporters have successfully framed the debate in terms of the “right to marry” and “marriage equality.” Rights and equality are the trump cards of political liberalism, and these are arguably the two most potent frames in American political discourse. Supporters of traditional marriage have lacked a counter-argument that could stand up to these effective declarations. Arguments regarding tradition, nature, and children seemed to lose to those of rights, especially for the young who are more susceptible to rights frames. Recently, however, activists have been reframing their support for traditional marriage using the language of rights, arguing that children have the “right to have both a father and a mother.” Some recent research suggests that this might be effective.

Individual rights are one of the touchstones of the American experience, central to both American culture and the U.S. Constitution. Discussions of rights profoundly affect our politics and our law, and the role of rights in law and politics has increased in the past century in what has been called the “rights revolution”.[1] Some, such as Harvard legal scholar Mary Ann Glendon, have criticized the growth of “rights talk” in American politics, arguing that rights-based arguments promote uncompromising issue positions that produce polarized politics and essentially cheapen fundamental rights.[2] Yet others, including UNLV political scientist Ted Jelen, have countered that rights based rhetoric is the most easily publicly accessible form of public discourse.[3]

Individual rights have long been the domain of liberals in American politics, but conservatives have increasingly wielded the rights sword with success.[4] For religious conservatives, the pro-life movement is the hallmark of this strategy. Pro-abortion supporters gained significant ground in political and legal debates by framing the debate in terms of the pro-choice rights of women, including the ubiquitous “woman’s right to choose”. Yet, pro-life supporters had their own rights-based claim, arguing for the “right to life” for the unborn child. From the beginning, many pro-life advocates framed their arguments in support of the inalienable right to life of the unborn, as seen in the founding of National Right to Life Committee in 1968. Yet, some prominent evangelical leaders, including Reverend Jerry Falwell, often cited feminism and sexual morality concerns, along with the right to life, in their abortion opposition throughout the 1970s,[5] cluttering public discourse. As the pro-life movement grew and evangelicals and Catholics became more unified on the issue, the right to life became the dominant theme of abortion opposition, serving as a compelling, rights-based counterclaim to abortion rights. Wielding this rights claim, pro-lifers have made great progress in the abortion debate, particularly among the young.

My co-authors and I have been examining the effectiveness of conservative rights-based claims on American public opinion. In September 2014, we published an article in Social Science Quarterly that analyzes the results of a series of survey research experiments conducted on college students across the United States.[6] The experiments present a hypothetical political candidate who expresses support for one of five conservative issue positions: 1) a ban on abortion; 2) support for the death penalty; 3) opposition to same-sex marriage; 4) opposition to nationalized healthcare; and 5) support for teaching creationism in public schools. For each category, the candidate expressed his position in terms of either public morality or rights. Consistently, college students rated the candidates that expressed their positions in terms of rights as less polarizing and less overtly religious. Opposing abortion using right to life language was the most effective at making the candidate seem more moderate and less religious, two qualities that are useful in political debates. In addition, non-evangelicals were particularly influenced by rights-based argumentation. Non-evangelicals who received the rights-based, pro-life argument were more likely to rate the candidate as being less conservative, and they were also more likely to view most of candidates that used rights language as being less religious.

Our study suggests that issue framing matters. In addition, contrary to those who are skeptical of rights talk, we find support for the suggestion that emphasizing rights can yield both political success and less polarizing results, especially for younger Americans. The one issue where we could not find support for a conservative rights claim, however, was same-sex marriage. We conducted this study at four universities in late 2010 and early 2011, and the arguments for traditional marriage did not feature an emphasis on rights. Our hypothetical scenarios had the rights-oriented candidate state that he opposed same-sex marriage because he supported the “right of communities to define marriage.” In our article, we suggest that this argument fails to generate success in public opinion because it is not at the forefront of the debate and because it is not compelling. The primary reason why it is neither prominent nor compelling is because this states’ rights argument does not tap into the American ethos—it is not an individual right.

Our research may lead some to suggest that failure is imminent for the traditional marriage perspective, as many others have proclaimed of late. In the past few months, though, prominent proponents of traditional marriage have tweaked their arguments. Individual rights have begun taking center stage, with advocates declaring that children have the right to a father and a mother. This rhetoric was central to the Vatican’s conference on the “Complementarity of Man and Woman” in November 2014 with Pope Francis declaring in his keynote speech that “children have a right to grow up in a family with a father and a mother capable of creating a suitable environment for the child’s development and emotional maturity,” and it has increasingly been used by Catholic and evangelical supporters of traditional marriage.[7]

This line of argumentation is nascent, and rights-based arguments for traditional marriage have not been empirically tested. Yet, they fit the pattern of success of other rights claims. The right of children to have a father and a mother is individual in nature, it is oriented toward the vulnerable, and it can be buttressed with data that supports the value of mothers and fathers. The best-case scenario for conservatives would be what happened with the pro-life movement, where a compelling rights-based argument coalesced with scientific data to serve as a formidable counterweight to a social and political movement—abortion rights—that many thought was a foregone conclusion. To date, the “right of children to have a mother and father” may be the best antidote to “marriage equality.”

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[1] See, e.g., Richard L. Pacelle, Jr., The Transformation of the Supreme Court’s Agenda: From the New Deal to the Reagan Administration (Boulder, CO: Westview Press, 1991).

[2] See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).

[3] See Ted G. Jelen, “Political Esperanto: Rhetorical Resources and Limitations of the Christian Right in the United States,” Sociology of Religion 66: 303-21.

[4] Prominent examples include: the right to free speech, the right to religious freedom, and the right to life.

[5] See Daniel K. Williams, God’s Own Party: The Making of the Christian Right (New York: Oxford University Press, 2010).

[6] Paul A. Djupe, Andrew R. Lewis, Ted G. Jelen, and Charles D. Dahan, “Rights Talk: The Opinion Dynamics of Rights Framing,” Social Science Quarterly 95: 652-68.

[7] See e.g.: Ryan Anderson and Sarah Torre. “The Right to Life and a Culture of Marriage.” National Review Online. December 10, 2014. John Stonestreet, “The Other Right.” Breakpoint. December 22, 2014.


Andrew Lewis
Andy Lewis is an Assistant Professor of Political Science at the University of Cincinnati. He is also a fellow of the ERLC Research Institute.