Free To Believe: The Battle Over Religious Liberty In America (Part 1/3)

Luke Goodrich works for the Becket Fund for Religious Liberty. He's won multiple Supreme Court victories for religious freedom. He has appeared on Fox, CNN, ABC, NPR, and been in the New York Times, The Wall Street Journal, and Time Magazine. He's also an adjunct professor at the University of Utah law school where he teaches constitutional law.  In other words he's qualified to speak on this issue.

I suspect he will also surprise - and challenge - both liberals and conservatives on this issue. While it's written broadly for people of faith and specifically for Christians, I think it also offers great food for thought for those who are not religious.

Don't assume I automatically agree with everything - I have some questions that remain (and perhaps even some points of dissent) that will emerge over the course of this three part series. Meanwhile, I would love to see a thoughtful conversation emerge from this book (and these posts).

I am going to blog a review/overview of his book in three installments that will match the three sections of his book:

1) What Is Religious Freedom
2) What Are The Most Serious Threats?
3) What Can Be Done?

What I blog will be a mix of direct quotes and paraphrases from his writing. I will try to note where I am stepping out of the book and offering my own commentary.

Let Them Bake Cake (Part 1/4): Pastries, Supreme Courts, And Same-Sex Marriage

The Supreme Court ruled 7-2 this week in favor of Jack Phillips of Masterpiece Bakeshop in Colorado, who declined to craft a customized wedding cake for a same-sex wedding ceremony. It was a "narrow" ruling that really sets no precedent, as it focuses on the process rather than the position. Mark Goldfeder gives a good summary for CNN:

"The Colorado Civil Rights Commission removed all nuance from the case: It literally and openly compared Phillips to those who would use religion to justify slavery or the Holocaust. In the words of one commissioner, "it is one of the most despicable pieces of rhetoric that people can use to -- to use their religion to hurt others."As Justice Kennedy explained: 

"To describe a man's faith as 'one of the most despicable pieces of rhetoric that people can use' is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical --something insubstantial and even insincere....This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law -- a law that protects discrimination on the basis of religion as well as sexual orientation...[t]he government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." 

And so, for this reason, among others, the court found on fairly narrow grounds that the Colorado Civil Rights Commission violated the baker's First Amendment free exercise rights. The government officials were required to give his claim religiously neutral consideration, and instead of being tolerant and respectful even while they may have disagreed with his position, they were overtly hostile to, and even questioning of, his sincere religious faith.

In addition, "the state law at the time afforded storekeepers some latitude to decline creating specific messages they considered offensive, and the Colorado commission had previously allowed three different bakers to refuse to put an anti-gay message on a cake."

What it left unresolved was "whether business owners have a free speech right to refuse to sell goods and services to same-sex couples." This doesn't address "'bakers, florists, photographers, videographers, calligraphers' and other businesses, 'where the government says, look, we don't much care about your religiosity. We just think you have to provide these services for same-sex weddings.'"

Who Best Understands Your Rights? (Trump And Clinton Through The Lenses Of Ethical Theory)

In the service of bringing clarity to our thoughts about this years' candidates, I am posting a number of articles that look at the candidates through the lenses of various ethical theories. So far, we have covered virtue ethics, deontological ethics, consequentialist ethics, Kantian ethics and Natural Law ethics. This sixth and final post will look at Rights-based ethics.

I am convinced that no one ethical theory does justice to the complexity of our world; nonetheless, I hope the process of viewing life through several different ethical lenses will bring increasing clarity. I should also note that my summaries offer a a broad overview that will not do justice to the complexities of these theories. I encourage you to read more deeply on your own.

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Rights-based ethics claims that we have a right to certain things because we are human beings. These rights create a moral responsibility in others to acknowledge and accept them. Two key examples of rights-based ethics in action are the Bill of Rights and the Universal Declaration of Human Rights. Rights-based ethics are built upon four key claims:

• Rights are “natural insofar as they are not invented or created by governments.” Natural rights pertain to us by virtue of our humanity; as such, they apply to all persons. 
• Rights are “universal insofar as they do not change from country to country.” Conventional rights are created by humans, generally within the context of social and political organizations.  Note the contrast between rights based on a social contract vs. natural rights, which in some ways relies on Natural Law. Conventional rights are not typically used to build rights-based ethics. 
• Rights are “equal in the sense that rights are the same for all people, irrespective of gender, race, or handicap.”
• Rights are “inalienable, which means that I cannot hand over my rights to another person, such as by selling myself into slavery.” 

These rights imply correlative duties. If I have a right, others have a duty to honor it. My right to freedom from physical harm imposes on others a duty not to physically harm me. My right to free speech imposes on others a duty not to prevent me from speaking. My property right in X imposes a duty on others not to trespass upon or interfere with my use and enjoyment of X. Lewis Smedes explains it this way in Mere Morality: What God Expects From Ordinary People:

"If one person has a right, someone else has a duty to honor it. If I have a right to stay alive, you have an obligation to keep your hands off my throat. If you have a right to your private place, I have a duty so stay away from it. If a stranger has a right to some food for his hungry child, someone has a duty to see that he gets it. Whenever someone has a right someone else is obligated to honor that right. If my right does not obligate anyone, it is only a piece of fiction."  

Rights-based ethicists typically make a distinction between Negative vs. Positive Rights. Negative rights impose duties of noninterference on others. Thus, my right to life as a negative right is a right not to be killed. Positive rights impose duties of assistance on others (such as receiving food, money, or opportunity). For example, welfare rights impose on the state the duty to assist those who cannot provide for themselves; the state in turn imposes that on us through the taxation that supports the assistance.

The rights to be respected in Libertarian Ethics are negative or non-interference rights; specifically, the right to life, liberty and property. The only limit is interference with the similar rights of others. Libertarians generally reject positive rights. People have the right to assistance only if they have made contractual arrangements (insurance, for example). A semi-libertarian position argues that government ensures negative rights, but individuals have an obligation for positive rights.

Examples of what ethicists have offered as rights include the following: 

• The right to life
• The right to liberty
• The right to pursue happiness
• The right to a jury trial
• The right to a lawyer
• The right to freely practice a religion of choice
• The right to express ideas or opinions with freedom as an individual
• The right of individuals or organizations to express opinions or share information freely in written medium
• The right to come together and meet in order to achieve goals
• The right to be informed of what law has been broken if arrested
• The right to call witnesses to speak on one's behalf if accused of a crime
• The right of a person to be treated with respect and dignity even after being found guilty of a crime
• The right to freely live and travel within the country
• The right to work
• The right to marry
• The right to bear children
• The right to free education
• The right to join any peaceful parties or groups of choice
• The right to be free from slavery
• The right to not be tortured
• The right to be treated as equal to others
• The right to be considered to be innocent until proven guilty
• The right to personal privacy
• The right to own property
• The right to internet access

If you scan the previous list of suggested rights while considering the negative/positive and conventional/natural distinctions, you can see that there is room for disagreement about which ones should be included and how they should all be honored.

• Is the right to free education really on par with the right to be free from slavery? 
• Does my right to pursue happiness create a negative or positive obligation in those around me? Should they just leave me alone, or must they assist my pursuit?
• Doesn't my having a right work compel very different obligations than my having a right to marry? 
• Is being denied internet access really as morally unacceptable as being tortured?

There seems to be a sliding scale here somewhere. We have fought wars to end slavery; I don't think there has ever been a war fought over internet access. Why the difference? And if it's not worth laying down one's life, is that an indication that it shouldn't be on the list? However, in spite of disagreements and distinction, there is a shared commitment among rights-based ethicists to honor the rights best understood as inherent to all.

So, back to our candidates:

1. Do the candidates differ in their perspective on negative vs. positive rights?  
2. Which one is more likely to impose duties of assistance? 
3. Which is more likely to limit their agenda to duties of non-interference?
4. Which candidate supports the idea that rights are natural, universal, equal and inalienable?
5. Which candidate is more likely to establish or support rights that reflect the mood of the culture vs. rights that exist independently of the mere will of the people?

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To summarize this series: Are you voting for a virtuous candidate (virtue ethics) who is committed to using just means (deontological ethics) to accomplish the greatest good for the greatest number (consequentialist/utilitarian ethics), who values the intrinsic worth of people, who will enact laws and regulations that are universalizable, who seeks to enact legislation that overlaps with the telos of the world, and who recognizes the existence of natural, universal, equal and inalienable rights?

I hope this has helped you consider the candidates carefully. I'm not sure there is an easy answer in this year's election when the candidates are considered from all these angles. However, that does not mean no choice rises to the top.

Vote carefully and conscientiously.

May the better candidate win.

Slouching Toward "Project X"

"I think that people should really say what they feel... 

everybody has the right to speak their mind."

- Lenny Kravitz

That's a fascinating idea.  People should say what they feel.  In other words, people have the right to speak their mind and say exactly what they want to say.

If I understand how human rights work, an identified right brings with it an imposed obligation on others.  According to the United Nations, "Human rights entail both rights and obligations...The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others."

People have a responsibility - an obligation - to uphold the rights of other people.  

So if people truly have a right to say what they feel - without exception -  and I hinder or stifle their ability to speak their mind,  am I automatically a human rights violator?  I stifled my 16-year-old's speech just last week; am I a moral monster?  When people violate human rights, we put them on trial and punish them. I'm not sure that "Shut it! Don't talk to your brother that way!" is really that risable of an action. But, perhaps it is.  I decided to put this egregious error into the context of other well-known human rights violators:

• Slobodan Milošević -  human rights violator.
• Pol Pot - human rights violator.
• Saddam Hussein - human rights violator.
• Slave owners - human rights violators.
• Father telling his son to "shut it" - human rights violator.

As much as we (rightly) defend the ideal of free speech, I just don't think all speech (or all speakers) are inherently endowed with a level of freedom of expression that rises to the level of a fundamental human right.  Libraries don't stock every published work; bookstores hide certain adult books behind locked glass; TV and radio stations edit bad language; theater owners won't let you yell "fire" in a crowded room; you can't slander or defame others; you can't incite a riot unless you are at an international soccer game; and the Secret Service won't let you threaten the president, even if you are a hunter/gatherer/rock star.