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68 Mont. L. Rev. 335 (2007)
Privacy and Same-Sex Marriage: The Case for Treating Same-Sex Marriage as a Human Right

handle is hein.journals/montlr68 and id is 339 raw text is: PRIVACY AND SAME-SEX MARRIAGE: THE CASE FOR TREATING SAME-SEX MARRIAGE AS A HUMAN RIGHT* Vincent J. Samar** Members of the Montana Law faculty, distinguished visiting scholars, students, and guests, let me begin by thanking the mem- bers of the Montana Law Review for inviting me to speak at this symposium on privacy and same-sex marriage. I am truly honored. Having joined others who have written about this topic in the past, I was wondering, as I prepared this talk, what I could say that might be new. Then it occurred to me that not too much has been said specifically on why marriage generally, or same-sex marriage in particular, ought to be thought of as a human right. Since the institution of marriage provides a forum for some of the most private and intimate of human actions to occur, perhaps it is not surprising that the private side of the institution should provide the constitutive elements for why the right to marry is a human right. This is the side of the institution of marriage on which I will focus. The perspective I will adopt is from morality and law, but not specifically religion. My argument will defend same-sex marriage as a human right not for any group, but for distinctive individuals. It will also show that efforts to exclude same-sex couples from marriage, as exhibited in a recent New York Court of Appeals decision, may undermine the value of mar- riage for everyone. My talk will have four principle parts. Part I explains why I believe the right to marry, including same-sex marriage, should be seen as a human right. Part II then explains why the recent New York Court of Appeals case that limits marriage to only its exter- nal attributes demeans human dignity. Next, Part III shows how human rights and, in particular, human dignity, are served by fo- cusing on the internal benefits of marriage as a practice. In part * Editors' Note: This Article is an edited, annotated transcript of the author's speech presented at the Montana Law Review's Honorable James R. Browning Symposium, The Right to Privacy, held at The University of Montana School of Law on October 11-13, 2006. ** Vincent J. Samar is Adjunct Professor of Law at the Illinois Institute of Technology, Chicago- Kent College of Law, and Adjunct Professor of Philosophy at Loyola University Chicago and Oakton Community College. The author wishes to thank Professors Martha Minow of the Harvard Law School and Mark Strasser of Capital University School of Law for their helpful comments and suggestions. This Article is dedicated to Mark Strasser and his partner George, living proof of a commitment based in love and dignity.

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