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

Phantom Menaces and Rights Squabbles

I'm afraid I let loose a bit too much yesterday, knocking down (well, as much as one can on a short blog) some of the logical/theological inconsistencies riddling the "Manhattan Declaration"--the recently released salvo by a group of Orthodox, Catholic, and evangelical conservatives.

In the interests of critical generosity, I should note one piece of rhetorical ground on which I think the Declaration isn't as vulnerable as some of my liberal-progressive comrades seem to believe. One site I viewed gave a fairly thorough rundown of the Delcaration's many problematic features. The commentary led, however, with an allegation to the effect that the religious right was once again "hijacking" civil rights language. While I have a lot of problems with their stances, I don't think that they're misusing civil rights language--at least no more than any liberal-progressive group does.

I assume that the reviewers meant the Declaration authors' section about "Religious Liberty." That section, the third major point (after the "culture of life/anti-abortion" section and the "marriage culture/anti-gay" sections), begins with a brief reaffirmation of the wrongness of religious coercion. The point, however, isn't "don't force conversions" but "government shouldn't prevent people from expressing disapproval of abortion and glbt identities." The authors castigate "those who today assert a right to kill the unborn, aged and disabled and also a
right to engage in immoral sexual practices, and even a right to have relationships integrated
around these practices be recognized and blessed by law" (6). Mind you--this bears repeating--the Declaration offers no proof that anyone seriously asserts a right to kill the aged and disabled. These are phantom menaces, conservative-Christian boogie-men lumped together with doctors who endorse a woman's right to choose in order to make abortion (all abortions, apparently, performed for any reason, even to save the life of the mother) seem horrible.

The authors go on to cite several anecdotes that purport to illustrate a general decline in religious liberties--mainly religious organizations who have their tax-exempt status threatened for not complying with anti-discrimination statutes. Against such a threat, the authors promise civil disobedience, a la Martin Luther King, Jr. "Unjust laws degrade human beings," write the authors. Thus laws that are unjust must not be obeyed.

Of course, by "unjust laws," the authors mean "laws that remove the privileged status granted to religious organizations when said organizations choose to claim exceptions to the rules everyone else has to follow." To receive tax-exempt status, a charity organization must not, for example, refuse to serve members of a particular race, religion, creed--or (in some instances) sexual orientation. A private charity is of course free to follow the dictates of its conscience and not serve, say, communist Baptists. It cannot, however, claim federal recognition or receive the unearned privileges regularly extended to faith-based organizations if it does so.

Thus there is a bit of, well, disingenuousness in the Declaration's claim to being discriminated against because of their choice to discriminate. Tax-exempt status is always already a special regard, not an essential right of religious organizations. If it were a right, then religious organizations would be able to discriminate against anyone for any reason.

Clearly, though, the Declaration's authors consider the removal of tax-exempt status for, specifically, discriminating against heterosexual-only policies as of the same species of oppression as prosecuting people for expressing disagreement with pro-gay-inclusion policies. Again, the authors cannot point to any kind of grand campaign to force pastors to marry gays or lesbians; none exist. Another phantom menace. The authors' bold statements that they will not be forced to bless homosexual unions, then, strike me as so much hot air.

Nevertheless, beneath the big read devils they put on display, the authors do locate a legitimate conflict. They are correct, for instance, in framing their disagreements as a conflict of differing conceptions of civil rights. The state's protection of the right to religious expression does conflict with other rights--the right to equal treatment under the law, for example, or the right to autonomy of self. For instance, were the state to declare (as it has not in most cases) that same-sex couples have the same set of rights as married couples, this declaration--this new definition of rights--would in fact violate the religious convictions of many people. Moreover, by recognizing the right of same-sex couples to be married, the state basically prioritizes the protection of that right above the hetero-only conviction.

To be sure, making same-sex marriage legal does not mean that rights to religious expression are therefore nullified; people who believe in hetero-only marriage do not face the choice of ceasing that belief or being prosecuted. What such people lose is instead the expectation (which they may have thought of as a right) that the state match their faith-based convictions about sexuality. Expressing their beliefs may not win them a night in the Birmingham jail, but neither will it win them approbation from government. Indeed, if they want to access government funds or if they wish to serve as a representative of the state, they must set aside their faith convictions insofar as those convictions violate the government's official stances.

Example? If the government recognizes same-sex marriages as equivalent in every respect to heterosexual marriages, then no judge or justice of the peace (or clerk granting marriage licenses) has the right to deny same-sex couples the documents or recognitions heterosexuals enjoy. The civil servant in question loses the right to both be employed and express their religiously based discrimination at the same time.

In this sense, then, the government's establishment or recognition of some rights (e.g., a woman's right to choose abortion, same-sex couples' rights to marriage protections) does result in a practical reshuffling of rights priorities. Religious convictions may not prevent the state or its representatives from enacting its protection of other rights. A conflict does in fact exist.

The easy response to this conflict--the response taken by the liberal-progressive reviewer I mentioned above--is simply to say that the Declaration's authors are simply misusing the whole notion of rights, fabricating some fake right to have the state endorse their anti-gay or anti-abortion attitudes.

I disagree.

More tomorrow,

JF