RIghts and Wrongs

Spotty updates this week as I'm traveling to visit family for Thanksgiving.

I'm taking some time out of cooking--well, time out of helping my partner cook--to post a bit. To revisit briefly what I was writing about last time, though, just to complete a thought: Say what you will about or against the Manhattan Declaration (the right-wing Christian statement recently released), but it's not, as some have suggested, an unfair or illegitimate use of rights discourse.

For instance, the Declaration's authors to claim that their right to free expression of religion trumps the gay or lesbian person's right to have their unions recognized as marriage or to be free from discrimination on the basis of their orientation. The authors would argue, for instance, that a tax-exempt, faith-based charity ought to be able to refuse service or hire to a lesbian since non-closeted lesbian identities violate conservative Christian precepts. To forbid the charity from making such decisions in the name of non-discrimination policies is, in the Declaration's logic, to violate the charity-workers' rights to free expression of religious conviction.

The authors apply similar logic to the case of a physician or pharmacist faced with a patient or client who wanted an abortion (or "the morning-after pill"). The physician or pharmacist must, in the authors' eyes, be allowed to deny service in such cases. One can imagine (and the Declaration itself suggests) other cases where professional or governmental duties interfere with a person's perception of religiously mandated acts. The recent news I mentioned briefly about military personnel proselytizing overseas, much to the embarrassment of the military and US foreign policy. In these and other situations, the Declaration insists that the right to religious liberty--the freedom to express and live by the dictates of (conservative Christian) conscience must remain paramount.

Critics have countered that the authors have a warped view of the right to religious expression. Yes, Christians may privately believe that homosexual behavior is wrong, that abortion is immoral, or that the gospel needs to be spread in every situation. The US guarantees that people may believe these things and that people may act on these beliefs. But the Declaration's critics would argue that these rights obtain within strict boundaries, in relationship to other rights, and--crucially--in relationship to the rights of others. A religion might insist that its adherents kill anyone with a ponytail, and adherents are completely free to believe that. They are not, however, free to act on that belief. The ponytailed person's rights to life--to not be murdered--overrides the other person's right to religious expression.

Of course the Declaration calls for no one's death. But insofar as the authors maintain a right to (for instance) discriminate against GLBT people, critics make a similar argument: your religious freedom cannot override equal protection under the law. To claim otherwise, to claim in fact that First Amendment freedoms guarantee a right to discriminate against GLBT people--these are for critics spurious claims. They "hijack" the liberal discourse of rights.

But the problem is that liberal discourse does not provide a specific definition of rights to hijack. This is a persistent and powerful fiction of human rights language. We hold certain truths to be self-evident, that all people are endowed with natural rights--but in practice rights don't exist apart from active recognition by a community (specifically by a state). I can believe with all my heart that I have a natural right to yell fire in a crowded theatre, but unless the authorities agree with me, or unless at least a sizable group of people agree with me, then my right exists as a subjective opinion and little else. This is not to say I don't have that right; perhaps I actually do. But rights are primarily matters of practice and common recognition, not transcendent self-evidence or personal conviction.

As such, no one's claim to a particular human right can ever finally be proved or disproved, only fought for and agreed to by a critical mass of society's members--or not. I may take issue with the Delcaration authors' claim that they have a religious right to employment discrimination, but my disagreement can't consist simply of pointing to some list of self-evident rights and saying, "See? Not there!" After all, in the Declaration, GLBT people are the ones claiming a false right, a right to have their private sexual proclivities validated as "normal."

Because rights have no final content, situations in which rights appear to conflict or in which there's a disagreement about what rights exist are particularly vexing.

More tomorrow,

JF