What's the legal difference between a privilege and a right?

Is there one? In debating gay marriage, I’ve run across people that say marriage is a privilege and not a right. Is there a difference?

(If need be, please move this to GD)

Marriage is a privilage.

Not being descriminated against because of age/sex/orientation/race, etc is a right.

Generally, a right is something you have by birth (the right to life, liberty, and the pursuit of happiness; the right to vote) and which cannot be taken away from you, while a privilege is something granted to you by a civil authority, and which theoretically can be taken away.

The clearest example of a privilege is a driver’s license. The ability to vote is a right.

Why? What makes it legally a privilege?

A privilege is something which is conferred upon someone by an authority. For example, driving is a privilege which is granted, and can be revoked by the government through licensing. There is no “right to drive.”
A right is more murky, but usually referred to as something which is inherent and “inalienable,” meaning you’re born with it, and it cannot be justly taken away by anyone.

The practical distinction between the two is less clear, since it’s really a matter of opinion in most cases whether one is inherently entitled to something or not, and legally it comes down to whether the government recognizes something as a “right,” which contradicts the idea that rights are not conferred. For example, this distinction is a major point contention underlying the gun control debate.

Under that definition, it seems that it’s a privilege. Don’t some US states revoke a felon’s “right” to vote indefinitely, until the it pleases the governor to restore it?

Isn’t it always just a matter of semantics? I don’t believe that there is any legal distinction under US law. Posters to this thread have said that “rights are something that can’t be recoked,” but every single example they have listed are things than can be limited and/or prohibited under the law.

Well, a right can be conferred, though. For instance, in 1215, King John conferred on the City of London the right to elect a mayor In 1920, women got the right to vote in US Federal elections. I think the big difference is that a right belongs to a group of people, whether it’s Londoners, American women, or human beings…you have the right to do something because you’re a member of that group. A priviledge belongs to an individual. In order to drive, you have to pass a test, prove you’re worthy of being allowed to drive, etc.

er, “recoked” should be “revoked”

must remember to preview before posting)

How about this: A “right” you have by default. A “privilege” is something you might be able to obtain by taking the appropiate action. I was born with a right to free speech. And I was born unmarried. If I suddenly find that I was married, I would protest that my rights were violated. :smiley:

Larry, that’s a good objection, to which there is no cut and dried answer. Basically, a right does not have to be absolute for it to be nonetheless a right. I agree that in practice the distinction is largely a semantic one.


I agree that in practice rights are conferred. In fact, I’d say that the abstract, but commonly used, defintion of a right as something “inherent” is essentially vacuous except as a rhetorical device, and in practice “rights” and “privileges” are equivalent, or at best, rights are a class of privileges which, once conferred, are more difficult to revoke.

As a minor correction, there isn’t really a “right” to vote in the United States conveyed automatically on all citizens, hence denying the vote to felons is not an infringment. By Article 1, section 2 of the Constitution, whoever is eligible to vote for his state’s most numerous branch of the State Legislature (typically the state’s house of representatives/assembly/whatever, though I suppose it might vary) is also entitled to vote for his federal congressman (and senator, as per the 17th amendment). Thus, the state could, if it wanted, extend or restrict the vote as it chose.

Later amendments, though, declared that certain grounds for exclusion were unacceptable. The 15th said a state couldn’t bar a voter simply on the basis of race, the 19th by sex, the 24th by nonpayment of a poll (or any other) tax and the 26th by age (for citizens 18 and over). These are limits imposed on the states, though, which is not quite the same as investing rights on the citizens. If a state decided to deny the vote to people born on Tuesdays, there’s nothing stopping them. Similarly, if a state wanted to extend the franchise (say, to 16 year-olds), there’s nothing stopping that, either.

It’s getting into semantic territory, to be sure, and just to muddy the waters even more, the 14th amendment states, in part:

I’d’ve thought a “right” and a “privilege that cannot be abridged” (at least by state governments) were damn-near identical, thus proving the law is not an exact science.

The distinction between right and privilege is a philosophical one, not a legal one. The “Privileges and Immunities Clause” is usually regarded as referencing rights, not “privileges” in the sense antithetical to rights.

In any case, Loving v. Virginia affirmed that marriage is a fundamental right, which may not be denied by a state on the basis of diversity of race. While some schools of constitutional interpretation may object to the thesis which C.J. Warren espoused in Loving, the fact remains that it is good law at present that marriage is a fundamental right, albeit one regulated by the state. It is reasonable, therefore, to presume that state regulations must conform to one of the standards called for by one of the levels of scrutiny.

I’d say this is a bad argument. All states have consanguinity restrictions on marriage. In something like 12 states first cousins can marry, and the rest they can’t. How young one can marry also varies from state to state. Race is only not allowed as a basis for restriction because of the Constitution. There is nothing in the Constitution that prohibits gay marriage. In fact the Founding Fathers would have considered gay marriage unacceptable.

We may be heading for GD territory here, but I have to say it: Cite?

My cite would be the absence of any laws in the late 1800s in the US that allowed gay marriage anywhere. And the absence of numerous FFs being quoted as saying gay marriage should be allowed. Back then it was thought common sense that marriage couldn’t be between 2 people of the same sex.

I suspect that this might be an equal protection problem

I’m may be too late, but can we please keep the gay marriage question out of this thread? If that’s not possible then I suggest this thread be moved to Great Debates before things get too overheated.
FWIW, I think “Loving v. Virginia” turned on the 14th Amendment of the US Constitution’s equal protection and due process prohibitions against RACIAL discrimination, as opposed to discrimination against homosexuals. In Loving an interracial marriage was criminalized. To me, it is a huge jump to say that because it is unconstitutional to criminalize conduct constituting a black man marrying a white woman or visa versa that therefore gays have an inherent right to marry.

Sorry, but the fact that something was unconventional doesn’t prove to me that the founding fathers, a notoriously freethinking bunch, would have found it unacceptable. The fact that there were no laws permitting SSM is irrelevant, since I was asking about your claim that the FFs would have opposed it, not what might or might not have passed a legislature of the time.

But we’re hijacking this nice thread.