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

[Bryan_Ekers]

@sewalk

Every citizen can vote until a court says otherwise. That is the most general definition of a right you can have.

Saying it loud doesn’t make it true. A sixteen year-old can be a citizen, but doesn’t have the vote, for example. The state legislatures have set up classes of citizens who have the vote, typically any legal resident over 18, though some also require no felony convictions and residency in the state for some minimal length of time, plus they can require registration procedures (though they’re forbidden from blocking a voter because of an unpaid poll tax). The constitution bans certain types of exclusion, but nowhere does it say that all citizens can vote.

[Gfactor]

A summary of my previous posts:

1. Hohfeld defines a right as a legal relationship where a party has a claim to X and another party has a duty to give X. He also points out that usage of the term is very sloppy. Much of his theory is based on contractual rights.
2. Supreme Court early twentieth century: If it is a right, it can’t be taken away by the state (or federal government) without due process; if it is a privilege, the state (or federal government) can refuse, modify, or terminate it without due process.
3. Holmes: Right/Privilege is a legal conclusion. If the court decides that you were owed due process, then it was a right; if the court decides you the state could take it away arbitrarily, then it was a privilege. In other words, rights are either predictions about (in the case of rights that have not yet been established) or descriptions of (in the case of rights already enforced) behavior of courts. There is no substantive content to the concepts. They are transcendental nonsense. *And see, * Felix S. Cohen, Transcendental Nonsense and the Functional
   Approach, 35 Colum. L. Rev. 809 (1935).
4. Modern Supreme Court:

The constitutional challenge cannot be answered by an argument that public assistance benefits are “a privilege' and not a right.’” Shapiro v. Thompson, 394 U.S. 618, 627 n. 6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551 (1956). 9 The extent to which procedural due process [397 U.S. 254, 263] must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss,” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961), “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” See also Hannah v. Larche, 363 U.S. 420, 440 , 442 (1960).

5. Scalia: nuh-uh

[Gfactor]

More on Hohfeld:

1. Apparently, he died in 1918, so he wasn’t writing about rights in 1919, but one of his works was published in 1919.

2. He claimed that legal relationships between individuals could be broken down into eight terms. The terms could then be paired as correlates: Right and duty, privilege and and exposure, power and liability, immunity and disability. If I have a right to Y against X, then X has a duty to give me Y. If I have a privilege to Y against X, then X has an exposure to me doing Y. If I have an power to alter privilege Y with respect to X, then X is liable to my altering privilege Y. And if I have an immunity from X changing privilege Y, then X is under a disability from altering privilege Y with respect to me.

Hohfeld’s right and privilege, then, are opposites. If I have a privilege to do Y with respect to X, then X has no right that I not do Y. And if X has a right to Y with respect to me, then I have a duty to give Y to X.

aow-2-2-98.pdf

Rights, privileges, powers and immunities are social/legal/moral benefits. Duties, derogations, liabilities, and disabilities are social/legal/moral burdens. 2. Rights, duties, privileges, and derogations may be either legal or illegal, either moral or immoral. Same with powers, liabilities, immunities and disabilities. 3. A derogation is a suspended right. A disability is a suspended
power.
Human rights of the innocent not to be bombed sometimes suffer derogations due to the privilege of the military to exercise its power exposing us to the liability of being indebted to it for giving us immunity against the attacks of the enemy thus forced to operate under a disability.

http://www.ipfw.edu/phil/faculty/Butler/h.r.hohfeld.PDF

[sewalk]

@Bryan Ekers

Saying it loud doesn’t make it true.

Read my entire post, please, before making such comments. The right to vote is innate in citizenship. Citizenship is not fully vested until a person is of legal age. I made that point of legal age quite clearly in my first post in this thread:

All citizens are born with full authority to exercise them once they reach legal age.

If some people around here would learn the difference between due process and legislation, I wouldn’t feel the need to shout.

Jumping in on one post to make a snippy comment doesn’t make you right, either.

[Gfactor]

1. ;j How responsive is this argument to the OP?
2. For those who are interested, one of my old professors has developed a modal logic game based on Hohfeld’s work.

http://cgi2.www.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=107
http://www.murdoch.edu.au/elaw/issues/v5n3/allen53.txt
http://thinkers.law.umich.edu/files/law.htm

Enjoy!

[Little_Nemo]

Consider the Florida election fiasco of 2000 (gay marriage and the 2000 election - is this thread heading for the Pit or what?). The Florida Board of Elections initiated a program of ensuring that ex-felons were not allowed to vote. As part of this program they put out lists of ex-felons. It was subsequently found that some people, who were not ex-felons and had no legal barrier to voting, were not allowed to vote because they had the same name as people on the list. There was no due process, no requirement for proof that the person couldn’t legally vote - it was just “if your name’s on the list, stay home”. If voting was a right, there is no way this would have stood up in court.

[NillyWilly]

@cainxinth

No, that is not true. No state government can revoke the right to drive without cause, and I just explained why in the previous post.

First, driving is a privelege. If I said it backwards before, my apologies.

Second, an individual’s rights may be abridged with cause and due process. It is the revokation of the rights of the population that is prohibited and would probably lead to insurrection.

[sewalk]

I am of firm opinion that the felon list tactic in Florida was illegal on its face. The state election board was within its duties to remove felons from the rolls. Due process demanded it. Removing false positive matches was not within its duties and was wrong. Creating an intentionally obfuscated process to reinstate disenfranchised voters was just sickening. These lists were also not applied in this arbitrary fashion. Only certain counties got the blanket disenfranchising treatment, counties with heavy black populations. This smacks of all the things white segregationists have done since Reconstruction: poll taxes, literacy tests, grandfather clauses, and the like.

In other words, voters were denied the right to vote without due process. I was taught that this is unconstitutional.

Have we rewritten federal law in this respect? Gfactor keeps making posts that fly in the face of what I was taught by an ACLU lawyer when I was a teen and asked the question in the OP at a little seminar one of my high school teachers had arranged (the lawyer was Michael Salem, the plaintiff’s attorney in the Bell v. Little Axe school prayer case which was still in appeal at the time). Have the courts destroyed that disntinction now? How long until breathing becomes a privilege?

[samclem]

I feel it’s my right to move this one to Great Debates. And I feel privileged to do so.

samclem GQ moderator.

[Bryan_Ekers]

@sewalk

Read my entire post, please, before making such comments. The right to vote is innate in citizenship. Citizenship is not fully vested until a person is of legal age.

That’s the narrowest possible definition of citizenship, and doesn’t match the 14th amendment, which reads in part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

There’s nothing in there about it not counting until a person if the age of majority. In fact, the age of majority isn’t specified anywhere in the constitution except in saying that for voting purposes, 18 is the maximum. A state could easily extend the vote to 16 year-olds (and this wouldn’t mean 16 year-olds in other states were being denied their right to vote) if it wanted, and other non-18 age-defined legal barriers not related to voting are common, i.e. the legal purchase of alcohol.

If some people around here would learn the difference between due process and legislation, I wouldn’t feel the need to shout.

You never have a need to “shout” in this forum. I believe there’s a presumption that the membership will respond to well-presented facts over loudly-presented facts.

Jumping in on one post to make a snippy comment doesn’t make you right, either.

No, my supporting facts make me right (or to be more accurate: accurate). Although some amendments make reference to the “right to vote” (in saying that such a right cannot be abridged on account of race, sex, etc…) exactly who can vote is the province of the individual state legislatures who can deny a citizen’s vote at will except where limited by the constitution. I don’t see anyone arguing that a convicted felon loses his citizenship (assuming he was a citizen before conviction) yet he can lose his vote. If voting is to be considered a right, then it’s not quite as strongly protected as, say, freedom of expression, which cannot be abridged by a state legislature.

And had my entire original response been simply “saying it loud doesn’t make it true” and nothing else, it could be reasonably called “snippy”. I de-snipped it, though, by following it up with supporting argument. Fact is, the use of “look at me! look at me!” oversized fonts does not, I’ve observed, play well with this crowd and your argument is flawed anyway.

[Gfactor]

sewalk, have you read the cases that I cited? I think they pretty much tell the story. The Supreme Court has jettisoned (or mostly jettisoned) the right/privilege distinction in favor of a balancing test based on property interests, which some would argue requires procedural due process for more types of claims than the previous standard.

http://www.cbsnews.com/htdocs/supreme_court_interactive/cases_goldberg.html

Before Goldberg v. Kelly, particularly during the era of McCarthyism and disloyalty accusations, these distinct questions were conflated and answered as one, and the answer was fairly clear and uncluttered. There was liberty or property requiring a full adversary hearing whenever the individual interest amounted to a right under traditional common law understandings of liberty or property. Other individual interests were mere privileges insufficient to trigger due process safeguards.

The rights-privilege doctrine waned in the 1960’s and received its official burial in Goldberg v. Kelly, which held that welfare benefits constituted property warranting a full measure of due process protection. Perhaps because the defendant did not seriously argue against welfare as property, the Supreme Court was both cryptic and ambiguous in its explanation for this far reaching conclusion.

http://www.naho.org/NL-6-99.htm
BTW, when I studied for the bar exam, they told us that on the Constitutional Law questions on the Multistate Bar Exam, an answer that invoked the right/privilege distinction was always a surefire loser.

[Gfactor]

Responding directly to the OP, which was:

@stpauler

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?

There is no meaningful distinction between rights and privileges in this context. At least not one that is recognized by the United States Supreme Court. This is the wrong kind of case.

When the issue is the state’s police power, the first issue is whether the state action implicates a fundamental right or discriminates against a suspect class. If it does then it is subject to stict scrutiny, if not, it is subject to the rational basis test. In this kind of case, the court has never concluded that a statute was appropriate because it only affected a privilege instead of a right. The right-privilege cases mostly dealt with termination or denial of rights without *procedural * due process, and as I have pointed out, even that distinction no longer applies.

Here are some passages from some of the cases on point. None of them talk about the rights-privilges distinction.

The granddaddy of them all: Lochner

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578 , 41 L. ed. 832, 17 Sup. Ct. Rep. 427. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.

FindLaw's United States Supreme Court case and opinions.

Griswold

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

FindLaw's United States Supreme Court case and opinions.

Harlan concurring in Griswold:

In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 .

Loving

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State’s police power, Maynard v. Hill, 125 U.S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska, 262 U.S. 390 (1923), and Skinner v. Oklahoma, 316 U.S. 535 (1942).

. . . .

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U.S. 81, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.

. . . .

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

. . . .

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

FindLaw's United States Supreme Court case and opinions.

Roe

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

…

Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485 ; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307 -308 (1940); see [410 U.S. 113, 156] Eisenstadt v. Baird, 405 U.S., at 460 , 463-464 (WHITE, J., concurring in result).

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113

Roe (Rehnquist dissent)

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

…

I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth [410 U.S. 113, 173] Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this.

Bowers

Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325 , 326 (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither [478 U.S. 186, 192] liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are “deeply rooted in this Nation’s history and tradition.” Id., at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S., at 506 .

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots.

. . . .

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation [478 U.S. 186, 195] of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls for short of overcoming this resistance.

FindLaw's United States Supreme Court case and opinions.

Bowers dissent:

Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

Romer:

The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271 - 272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. ___, ___ (1993) (slip op., at 6).

. . . .

We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . .” Civil Rights Cases, 109 U.S., at 24.

FindLaw's United States Supreme Court case and opinions.

Lawrence:

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers.

. . . .

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

. . . .

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

. . . .

The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

FindLaw's United States Supreme Court case and opinions.

Lawrence dissent

I do not quarrel with the Court’s claim that Romer v. Evans, 517 U. S. 620 (1996), “eroded” the “foundations” of Bowers’ rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting).) But Roe and Casey have been equally “eroded” by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are " ‘deeply rooted in this Nation’s history and tradition’ " qualify for anything other than rational basis scrutiny under the doctrine of “substantive due process.” Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation’s tradition.

. . . .

Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection–that is, rights which are " ‘deeply rooted in this Nation’s history and tradition,’ " ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental” (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’ … but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.

[troy33]

@alice_in_wonderland

Marriage is a privilage.

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

Wrong!!! Marriage is a right under the First Amendment. A privilege is a statutory rule which a government’s legislature can revoke. Natural rights can never be revoked by governmental fictions…

[Bone]

troy33, Welcome to the Straight Dope.
I’m closing this zombie as the landscape has changed significantly since the thread’s beginning. A new thread is welcome if desired.

[/moderating]