Does Society Have "Rights"?

This is an odd question and one that would have been answered differently in the past. If we were to go back into the not-too-distant past, we would find that important conservative thinkers -- such as George Grant -- argued that it did. They would not have used a different language but they would have used words like "public good" and "nation" in place of rights and society but we would be in the same ballpark. It was precisely for this reason that Canadian governments undertook economic development projects or promoted electrification or better roads. The basic idea was this: society (the nation, the province, the people) had interests that transcended those of individuals. It was these bigger issues (national defence, for instance) that we could think of as a proper -- but not the only -- sphere for government acting for society, or the common good. 

Today, we have run into serious problems with this line of reasoning. Part of it is what Michael Ignatieff called "rights talk" that is: a form of discourse suggesting that if rights can simply be respected and enhanced, all of our political or economic or social problems will be solved. I'll address this contention in a more sustained way in a future post because it has taken on odd forms and so reviewing what we can see as some of the limits of right is worth doing. For now, however, let's content ourselves with a different kind of question: does society have rights? 

At its worst, discussions of "society," what it does, its effects, etc., have become a bit of a caricature. The idea that "society" is responsible for crime or other social problems has been pilloried by neo-liberals and right wing populists to the point that it is difficult to have a conversation about the subject. References to something being "society's fault" are often dripped in sarcasm.  It is a short step from a rejection that there could be social determinants of, say, behaviour, to rejecting the idea that society has interests that should be respected. Under Covid, we have seen some extreme forms of this (a subject I've been trying to address in other posts). Here, the opponents of public health measures have tried to argue that they should have no force and effect because they infringe on individual rights. This argument is constitutionally shaky. It is not a good argument and has very little to recommend it in terms of constitutional law. The key point, however, is something different: we have seen that there is a very small but significant body of people who believe that their rights as individuals must necessarily stand above and nullify collective rights, including provisions for public safety. 

We don't have time to over everything that could be wrong with this subject and I want to approach it from a different direction, anyway. Instead of asking if this is true, what I want to ask is this: do you believe that there is no such thing as the public good? I can almost hear someone say "sure, but public good is best realized through individual rights. Circumventing or limiting individual rights harms the public good." Let's not dismiss that argument because there are merits to it. Due process of law, for instance, is vital to the public good and it is an individual right. Free speech is vital to the public good and it is an individual right. Equality is an individual right and vital to the public good.

I want to make these arguments because I have often worried about the reverse argument: that we need to discriminate against specific people in the public good. Those who are old enough will remember that this was an argument often used to justify discrimination against gays and lesbians. We can't have equality in marriage because it is not in the public good. I've heard people argue against settlements for the victims of residential schools, and humane policies for refugees on very similar grounds. I recall in college a particularly horrible moment where a friend argued that a group of refugees should be deported (regardless of their future life prospects) on a similar ground (it was not in the public good to accept refugees). In each of these instances, breaches of equality, or rights, or simple humane behaviour are justified in the name of the public good. And, have you noticed that in each of these instances, and many others I can think of, the public good is defined in a way that reinforces the inequality of already marginalized groups: Indigenous Peoples, refugees, members of the LGBTQi community. 

It seems to me very important to bear this in mind before we too quickly reject arguments about individual rights. I don't. In previous posts, I've tried to argue for individual rights but also for what I would contend is a correct understanding of individual rights. Individual rights, I have argued, are not licence to do whatever you want. There are limits to them and those limits are reasonable and widely accepted. The key example that is always used is "yelling fire in a crowded building" when there is no fire. In this instance, needlessly endangering the lives of others for one's own amusement is not a right, but (a) a threat to others rights (their life, safety) and (b) a crime (making a false statement that recklessly endangers others' lives). Likewise, an example I've used before is that I cannot use my free speech to spread lies about my neighbour because, say, I don't like her business and want to drive her into bankruptcy. Here again I am treading on her rights and breaking the law. 

Rights are then (a) vital to the health of society (and often a needed protection for marginalized social groups), but (b) not a licence to engage in any behaviour one happens to want.

Where does this leave a discussion of society's rights? In several places. First, I suspect that my discourse is weak and inhibiting my ability to make the points I want to make. If you have suggestions to improve it, I will take them. Second, it leaves us thinking about boundaries and limits. Does a social perspective necessarily harm the rights of others. It clearly can. Those people who tried to turn back gay marriage because they believed it harmed society were clearly saying that we should not respect the equality of certain people. These people will be lesser citizens that do not enjoy the same rights as straight people. But do all limits have that effect? Could some be reasonable and could some even help advance individual rights? 

In a previous post, I tried to make precisely this point. Collective actions -- taken by society through the state -- can become a mechanism to enhance individual rights. In other words, counterposing individual rights against collective action mystifies an important link between the two. Let's take due process of law as an example. It is a good example because due process of law (the right to trial, to know charges against you, to defence, against arbitrary imprisonment, etc.) is rightly widely viewed as fundamental a democratic order based on the rule of law. 

Yet, in this example, you can see that the individual proclaiming their right by themselves won't get very far. In point of fact, we have an entire apparatus of state that is set up to ensure the smooth functioning of due process. We have lawyers and crown attorneys, legal aid, written judgement, independent police forces that are not run by crown attorneys, autonomous judges, the news media, etc. It is all of these social actors -- of this collective action -- that makes due process of law (and likely much more that I have not thought about) a reality. Without it, it could quickly descend into wishful thinking. Don't believe me? It has happened elsewhere. 

I'll leave off on this point and address other issues in subsequent posts. What it means, however, is that we need to protect society's rights (only some of which I have listed above) in order to ensure that individual rights are protected. We need to ensure vibrant social institutions and legal institutions. Individual rights don't ipso facto make for a good society. But, without protecting these elements of our social order, individual rights would remain at best fragile.  

Parental Rights and Tough Love

In my last post, I tried to argue that parental rights are not absolute. This much I will take as evident even if we don't talk much about it. Parental rights are bounded for two reasons: the fact that children are people and not objects that one owns; the fact we live in communities with other people who also have rights.  Moreover, I tried to argue that we are responsible for the reasonably foreseeable consequences of our actions.

There is nothing shocking here. We just don't normally apply this standard to child rearing which is often treated as a purely private matter.  I might point out that what I am saying is neither shocking nor new. I am not inviting the state, say, into a new realm of power. We have operated with these principles for a very long time and the world has not fallen apart.  And, it has not because these things make sense. What I'd like to do in this blog is continue this argument and loop back into a consideration of how this applies to tough love.

The idea that we are responsible for the reasonably foreseeable consequences of our actions should not shock people either. Responsibility can take several different forms. We often think of it in terms of legal responsibility (who has to pay the piper, as it were, if something goes wrong). I'd argue that this is both an important and limited way of thinking about rights and responsibilities. There are a bunch of other reasons why we might want to think about the consequences of our actions outside the framework of legal responsibilities. For instance, we basically use this standard with our own kids when we tell them to do their homework. We do so because a reasonably foreseeable consequence of not doing one's homework is that one will fail.  We teach our kids to have enough money in the bank for rent or mortgage because the reasonably foreseeable consequences of not doing so is that one will get thrown out of one's apartment or lose one's house to the bank.

One of the problems I have with "tough love" (and, to be frank, I have several) is that it reduces the scale of parenting to a relationship between a parent and a child. It pretends that there are no reasonably foreseeable consequences to parenting actions.  Let me immediately qualify what I am saying. I am *not* arguing that most of the time there are serious consequences whereby parenting strategies spill out of control and cause problems. Kids make mistakes. They cause problems. Hockey balls and baseballs break windows, bikes drive over plants, gardens get squished, cars get bumped. This is all the normal stuff of childhood and, most importantly for my argument, there is no ill intent here. It is impossible to foresee every problem that a child can cause just by being a kid and doing kid-like things. In instances where kids cause problems doing kid-like things, there are other non-legal responses that we should use.  Those might even be something to consider in some future post.

What I am interested in here is not finding some ways to criminalize ordinary kid stuff or hold parents criminally responsible for a window broken by a neighbourhood baseball game (although parents should warn kids of possible dangers and problems). There is a difference between an errant throw accidentally going through a window and someone intentionally throwing a projectile at house to indicate, oh, I don't know, political disagreement or something like that.  One is an accident; the other is intended as a violent statement.

What is interesting is that the standard I am trying to stake out seems to apply here. The problem with mistakes is that, by definition, it is difficult to foresee the consequences because ... well ... they involve what are unintended consequences that, by definition, cannot be foreseen. Don't believe me? How many times have your heard someone say "that was an accident" as a way of saying "I can't be held responsible." (Even in instances of accidents, you might want to do something for someone who has suffered as a result of an unintended consequence but, again, a discussion for another day). Under law, in most instances, you are not responsible for an accident. If I mistakenly take a packet of, say, bolts from the store that is something different from intentionally robbing the store.  I should still return the bolts -- because, the act of keeping them after I discover my error is theft! -- but the act of taking them is, in itself, not a crime because I lacked the necessary intent.

A consequence that is reasonably foreseeable, it seems to me, falls somewhere between accident and intent.  One of the reasons that we don't criminalize the actions of kids is that they lack the necessary mental capacity to consider the consequences of their actions. Playing baseball is fun so you play baseball without thinking that you could break a window. Adults are different and this is one of the things that makes people adults. Adults can and so should consider the potential implications of their actions (and we teach kids to do so, as I noted above). As a society we have a whole group of crimes (called negligence) that involve the consequences of actions people should have foreseen.  So ... my point: nothing particularly radical or unusual here.

How does this relate to tough love? This way: I have found in discussions with tough love proponents that they don't really think through the implications of their actions.  They focus only on the immediate problem which is, in one form or another, a disobedient child. I've had a number of conversations that answer this question: what does one do with a disobedient child?  Of course, the answer depends completely on how disobedient. In instances where children have really misbehaved -- and have no illusions, the examples I heard involved some pretty serious stuff -- one of the responses was that the child cannot live under your roof. You've heard this before: "my house, my rules."

I will leave to one side the efficacy of that. I find it more of a slogan than a good way to run a family, but ... perhaps another day. Let's allow that one accepts that injunction: you follow my rules or out you go.  What happens next?

When I talk to tough love advocates they fall into two camps. Some treat this as something akin to a game of chicken with one/s own children: '"they'll blink and in the child's tearful remove, the parent's authority is re-established."  The child will go away and learn the lessons of hard knocks, returning later perhaps understanding the rules and accepting them, even if grudgingly.

These things can happen but there are other reasonably foreseeable consequences. What happens, one might ask, if you deny a person shelter? What is the reasonable and foreseeable consequence? Well, one option is that the child breaks down and accepts their place in the pecking order. The other is that they will seek shelter elsewhere. Likewise, what happens if you deny someone food? They could beg you for food, or they could seek it elsewhere. I don't think this is an economic calculation. I think it is built around emotion. But, particularly in instances of significant age differentials like a parent/child relationship there are uneven burdens of understanding the implications of actions. After all, the adult is the adult and a child is a child.

What does it mean to seek shelter. Well, one could sleep on the streets, one could go to a homeless shelter, but in my experience there are two other common results that tough love advocates don't discuss:

1. Couch surfing, whereby your child lives with others (or bunch of others who feed, cloth, and shelter them, who provide a shower, sometimes council, entertainment -- TV -- and social interaction). 
2. Break and enter: now homeless youth seek out shelter, warmth, food, hygiene by breaking into homes that they believe are empty. 

No one is saying these are the only responses and that is not my point. My point is that they are reasonably foreseeable consequences, even if we don't talk about them. It is not difficult to see how, say, a fairly young person (say, late teens as an example) if deprived of shelter might end up doing things that they would not have done under other circumstances.  If someone were cold and hungry, it is foreseeable that they will take actions to be warm and not hungry even if those actions move them outside the boundaries of the law or into a situation where they need to rely on the kindness of other people. The target, in the case of breaking into someone's house to look for food or something to rob or even a place to sleep if the person were away, will likely be a target of opportunity; that is: their action will not be something that is well planned out. And that simply highlights the randomness of the crime for those whose house is, say, robbed. 

In both instances, the discourse of tough love and its supposed merits fails to grapple with this. I do know there are worse things that can and do happen in instances of homelessness, but let's stick to this point to finish off the argument. In both instances, the tough love advocate has ignored a reasonable consequence. When they say "my house, my rules" and suggest that showing a disobedient child the door, they don't also say "my house, my rules and by following my advise, you could be creating a situation where your wayward child will rob your neighbour or break into their house." Instead, they paint the act of forcing homelessness on a child as one that is, more or less, consequence free. The worst that will happen, this discourse implies, is that your child will be lonely and sad and uncomfortable for a night. You will have either (a) taught them a lesson or (b) removed a dangerous (in the case of a seriously disobedient child) problem. All you need to do, I've heard tough love advocates suggest, is have the will -- the internal fortitude -- to take this action.

My point is that that is a limited perspective. Even if a parent were going to take this action, they should be fully aware of its potential consequences.  IOW, you should take the action knowingly because, in effect, what you are being urged to do is not just make someone comfortable, but to offload your problem onto someone who, chances are, you don't know. Imagine a particularly grave situation: a child is stealing from you to support their drug habit. What do you think happens if you refuse that child entry to your home? Do you think their drug habit stops? Do you think they stop stealing? Is it, say, equally foreseeable that they will steal from someone else? I am not trying to say that these are not difficult decisions for parents, or anguished. But, in this example, the act of forcing homelessness on the child is taking a chance with other people's property. You are gambling that the action you have taken -- turning a thief lose on your neighbourhood -- will not cause problems. 

My argument has problems. I don't want to disguise that.  If you are not going to throw your son or daughter out of the house, what are you going to do?  How long is an adult responsible for their child? What of adult children still living with their parents? Should one leave one's self in a potentially dangerous situation to protect others who might not even need the protection? 

My discussion of this point has been far from perfect. I don't have easy answers as to how to deal with disobedient children. What I am arguing is that tough love is wrong (in an ethical and potentially legal way) because urges people to offload their problems and not think about the consequences. It ignores that fact that the actions you are taking have foreseeable consequences for other people.  While I don't have easy answers to the problems our kids might have, I do think that this is not the right approach. I don't think it is the right approach for the child and I don't think its right to offload a problem onto some other person who does not know that the problem is even coming. 

The Nobility of Right, or why discrimination and bigotry suck as rights

Somewhere, and I forget where, Joseph Heath mentioned a concept which he called something like "the nobility of right". It was not a key concept in his thinking but I want to argue that it should be. The idea is that rights reach their fullest potential and greatest effect when they are used to defend and promote noble principles and ideas. For example, rights become noble when they extend democracy, address marginalization, provide security, end bigotry. These is a nobility in working to promote a good cause that enhances life for citizens: that creates the circumstances in which an individual can live a fuller and more meaningful life. Conversely, rights lose their nobility if they are used to defend and promote the opposite of noble causes: if one uses rights to marginalize, deny equality, oppress or harm. Heath suggested, if I am remembering what he said correctly, that this distinction, in fact, might help us in determining whether we felt the articulation of a particular right was a good idea or not.

The ways in which some people have recently been using religious freedom to defend their bigotry against the LGBTQ community is an example of the un-nobility of right. In other words, it is a misuse of rights because it impoverishes the very idea and concept of rights. It is an instance where rights are being used not to advance equality but to limit it; not to promote inclusion in the body politics but to exclude from; not to ensure the security of the person but to endanger it.

A good example of this comes from south of the border: the Trump administration's initiative to allow medical practitioners to deny care -- that is to refuse treatment -- to people on the basis of their sexual orientation. What is upsetting about this is not that there people who want to discriminate against LGBTQ people. I knew that already and I strongly suspect you did as well. What upsets me is that they are doing so by using a noble right -- freedom of religion -- to try to argue that their bigotry is just an exercise of their rights. As a Christians, I might pause to ask WWJD in this instance and I'd urge anyone considering denying service to the same thing. In other words, I'd argue that denial of service is not a defence of Christian beliefs but a contradiction of them -- but we can save that discussion for another day. Here, I want to address the issue of rights and whether or not we have a right to deny medical services (a dangerous step, to be sure) to individuals on the basis of their sexual orientation or gender identity. I am arguing no. There is no such right, in an ethical and moral sense and, moreover, this ethics has implications for other debates that surround freedom of religion.

Let's start with some basics. The key point here is that Heath is trying to disaggregate the concept of rights. Rights talk, for a very long time, has set up the concept of rights as absolutes. A right is a right is a right and, in fact, that is what makes them rights. This approach to rights may have been created for good reasons: because the prevailing view, back in the day, was that not everyone had, or deserved, rights. Women, for instance, or racialized minorities, it was argued, were incapable of full citizenship and so they could not be accorded equality with white men (nor the poor with the rich, etc.). In an effort to guard against this, I suspect, the idea of rights as an absolute developed. You either got 'em or you don't.

In more recent times, as Michael Ignatieff noted, rights talk has come to dominate public discourse. Ignatieff is not sure this is good, not because he opposes rights -- indeed, it would be a deep disservice to him to suggest that he did -- but because he believe that as a society we have substituted the language of rights for other languages that are more apt. We can leave off that discussion, too, except to note that it in no way lessens the significance of rights but instead points to a confusion of language. Things that people might want to do or wonder about or whathaveyou, come to described as rights when they are really something else.

Heath's point is that we need to look at rights and without minimizing their importance recognize that rights are not a monolithic category. We often hear about conflicts of rights (say, individual versus collective, freedom of religion versus gender equality) when this is not really what rights are all about. There is, for instance, I explain to my students, a difference between a law that is *intended* to promote equality and a law that is *intended* to maintain discrimination. Intentions, in other words matter.

Don't believe me ... why do people apologize? Because we understand that intentions matter: a mistake is something different from an intentional act. My daughter, when she was 2 or 3 took something -- a small bottle of shampoo -- from a store. It looked cute and she had not idea what stores we all about. She was not thrown in jail because intentions matter. It is, in fact, a basic element of law: a crime (excepting negligence) consist of two parts: intention and action.  We all know that intentions matter and I'd go so far as to suggest that it is the opposite point -- that intentions do not matter -- that should be under scrutiny. What does it take to argue such a point? I don't agree with this but is this not what each officer involved in the shooting of a young Black man in the US has argued: it was not *my fault* that I shot him.

One can agree or disagree with the law. That is another discussion. For example, consider a law that is intended to promote equality. One can argue about its efficacy, its morality, its usefulness, etc. These can all be valid discussions to have. But, we cannot suggest that the promotion of equality is the same thing maintaining inequality, we cannot say that one's intent does not matter. They differ intent and effect (inclusion, equality v exclusivity and inequality).  To use an example: getting rid of racism is not the same as racism.

I make this point because some disturbing things are disguised by their association with rights. If someone says "I have a right to my freedom of religion," we tend to agree because control over one's spirituality is an important thing.  When we think of freedom of religion, we think of the need for it: for protection of religious minorities against oppression. Jews in Nazi Germany is an example that comes quickly to people's minds but we can with some thought all think of other examples: of places where "heretics" are executed or the Padlock law or the Inquisition. Freedom of religion was put in place in liberal societies in order to protect individuals and allow the free expression of spiritual beliefs, the association connected with it, and the assembly (getting together) that it required.

I want to be quite clear on this: freedom of religion was never about hate. It was not about refusing to help people. It was never about denial of care, that is turning one's back on someone in need. It was a positive right that allowed people to address something that is good about humanity: spirituality. Its recent recasting as a negative right -- as in, I have right to hate, to ignore, to leave in harm's way -- is a disturbing trend not simply because it, in effect, it says "some people are worth saving and helping and others are not" and claims that the right to make that decision falls not on reasoned dialogue or collective agreement but on an individual and his or her prejudices. It is a disturbing trend because it involves the recasting of rights as something that can be used to oppress and marginalize, to maintain biases, as opposed to circumventing them.

This is, I suspect, why even the alt-right is shy about saying precisely what they mean. No one, for instance, talks about the right to hate. Instead they say things like "the government should not tell me what to think." But, this is a bit disingenuous. The point of rights is precisely *not* to tell someone what to think but to guarantee protection, security, etc., the right to think. This policy of Trump's -- along with his policies viz the military -- say, in effect, you have the right to ignore a person in need if you don't like them. The reason most people -- excepting extremists -- don't talk about "I hate" because they recognize that they will sound horrible.  They sound horrible because their religion is about love (love of God, love of your neighbour) and because there is no right to hate. You might hate somebody or something. That is your business, but is this how you want to define yourself: as a hater?

In Canada, the situation is not nearly as grave but much of the evangelical opposition to the Trudeau Liberals is coming very close. There is more to say on this point but some evangelical Christians have argued that their rights are being infringed because they cannot use state funds to organize anti LGBTQ and anti-abortion programs or policies or institutes or campaigns or whatever it actually is.

What we can note is the same process. No one is saying "I want money from the government to promote inequality, to harm and marginalize, to recreate the conditions in which, say, gay bashing was normal." There is a reason why they don't say that: no one would be one their side. Instead, they say "I have a right to my views." You do, but is that the same thing as getting paid to subvert and endanger someone else?

I would argue it is not. A person will think what they will think. But, you do not have a right to get paid (or, to pay others) to subvert someone else's equality or safety.

Let me return to religion. I lament this recent turn in evangelical politics for another reason: it makes Christians look bad. We are not -- or, should not be -- about hate. We should not be about trying to find a way for the state to pay us to force gays and lesbians back in the closet. We should not be looking for the state to protect anyone's bigotry. Imagine the alternative: would you be OK if a secular group were funded to run an anti-Christian organization? I really hope freedom of religion has not been reduced to the right to hate because if it is ... the battle is already lost.

Rights and Rights

Who can object to freedom of religion? In fact, to do so makes one sound like something more than a bit of a jerk. It makes one sound backward, almost like a dinosaur … in fact, was not freedom of conscience one of the objectives of the democratic revolutions that swept Europe and the Americas between the late-eighteenth and mid-nineteenth centuries? To oppose freedom of religion makes one sound almost … well as if one were a supporter of the inquisition, as if one were about to try and burn heretics. In this sense, the opposition to Indiana’s supposed defense of religious freedom might sound odd to someone who has not paid close enough attention to it, who has not followed the debates about the boundaries between state and church in the US, and the degree to which religious folk  (usually, but not exclusively Christians) can define the framework of rights for that country.

I want to be clear from the state: the Indiana law -- or similar laws implemented in other states -- is not a defense of freedom of religion. That right was already specified in the US Bill of Rights. It was, in other words, part of the constitutional guarantees (along with free speech, the right to bear arms, etc.) that comes with being a US citizen. In enacting this law, the government of Indiana did nothing to further protect freedom of conscience or belief and, I will argue, a great deal to corrupt it through an overt and misplaced politicization of term. Passing this act is the equivalent of PEI passing a law that says “we are now making it illegal to murder people.” It already was, one would say, this law is a waste of time.

The trickery inherent in this law is only one problem with it. The most serious problems – evident by the backtracking we’ve already seen from Indiana lawmakers – is the way it confuses conceptions of rights and what they mean. I’ve tried to blog on this in my last entry but let me elaborate this point and add in some other comments.

The second problem, then, is the confusion of rights. Here, we need to ask “what are rights and why are they important?” The answer to this question is, in fact, complicated because it depends on the type of society in which you live. In stratified societies (say, like feudal societies) rights adhered differently to different people depending on their place in the social order. Thus, a lord had different rights than a peasant. There are also traditional rights that adhere, for instance, to indigenous peoples. In some societies, members of different religions have different rights. In some societies, for instance, the state enforces laws based on specific religions (but not others). What counts as a right, then, in legal terms if conditioned by the society in which you live. We can – and I would argue should – assert the legitimacy of universal rights that meet basic standards of decency and freedom. I assert that point as an ethical principle to which I (and, I suspect, most people) subscribe. But, in practical terms – in terms of the rights that citizens actually have right now – those are dependent on their society and what their government recognizes.

Not all societies recognize freedom of religion. Some societies have and continue to have established religions that are supported by the state. Adherents of other faiths do not have the same rights as adherents of the state-supported faith. They may have restrictions on their worship, suffer from prejudices that go unaddressed, have to pay special taxes, be forced to live in certain sections of town, etc. None of these things are historically unusual, even if I (to say this again clearly) disagree with them.

The conception of right that we use in Canada and the US today is not like this. Even if it honoured in the breach (and, it clearly has been), rights supposedly adhere (in our societies) to individuals by virtue of their individuality, humanity, and citizenship. Thus, a rich person has no greater right than a worker; a Christian no more rights than a Jew; a man has the same rights as a woman, etc. We subscribe, in other words, to an ideal that all citizens enjoy the same rights and that is, or so we are often told, what makes our societies more democratic and fair.

This, however, creates problems for a variety of reasons, some of which are well documented and we don't really need to discuss. One problem it seems to create, however, is what is periodically referred to in the media as a conflict of rights. What happens when my right conflicts with your right? Who gets to win out? What is more fundamental?

This is the wrong question. Conflicts of rights occur far less frequently than we might think. In Indiana, for instance, we don't have a situation where there is a conflict of rights (freedom of religion versus equality) at all. What we have is a failure to understand what freedom of religious means.

In Canada and the US, freedom of religion is not the right to discriminate. You have the right to believe whatever you believe but your right to enact your belief is bounded by the degree to which it affects other people. Thus, for instance, you might believe that the Bible justifies the slavery of Black Americans. I'd disagree with you, but there were people who believed that. Even if you believe this, you do not have right to enslave anyone. Likewise, your religion might call for human sacrifice. Sorry, you are out of luck. That is a crime and you can't use freedom of religion to justify it or get away with.

Here is the rub. Even if we don’t like what people believe, they can believe it. They have that right. But, the fact that you have right to believe what you will does not mean that you have the right to do whatever you want, however sincerely your beliefs are held. My right does not extend to the oppression of my neighbour because my neighbour – in a democratic society – enjoys exactly the same rights I do.

What has gone on in Indiana and a number of other states is that this basic and simple understanding of what constitutes a right and the reasonable limits on it has been lost. In the name of Christianity, the government has enacted a law (which it is not supposed to do, of course, because the principle of the separation of church and state in the US) that allows Christians to discriminate against other people. In other words, it accords to one group of people the right – protected by law – to harm another group. This is a violation of the basic principles of rights in a democratic society and it is, I want to say this clearly, a step away from democracy. Rights are intended to enhance democracy in our society; not limit it.

If freedom of religion is not the right to oppress, marginalize, discrimination against other people … what good it is? Actually a lot. Rights fall into a number of different categories and accomplish a number of different goals. I probably go on too much about this in my courses so I won't here. But, freedom of religion is, oddly, designed to protect citizens from precisely the type of law that Indiana has enacted. It is designed to protect people from a the state enacting laws that favour some religious perspectives over others; that treat different people differently on the basis of belief. IOW, religious freedom is intended to ensure that what has happened in Indiana does not happen: that the state should not be, as it were, “in bed” with religion.

I’ve gone on too long so let me summarize. Several points are important:

• the freedom of religion law that Indiana passed is not needed because freedom of religion is already protected under the US Bill of Rights
• the law is actually not about freedom of religion but instead about providing legal sanction to discrimination on the basis of religious views. Generally, when the state shows favouritism to one group of people as opposed to others, we view this as non-democratic and, indeed, Indiana has taken a step away from democracy
• there is a level of misreporting when people talking about a conflict between rights (religion v equality). There is no conflict because in democratic societies all citizens enjoy the same rights, ergo one citizen does not have the right to oppress or marginalize another and assert that this is their right. Other non-democratic societies (theocracies, feudal states, for instance) allow or allowed this. Democracies do not. It is not that one right is more valuable or important than another; it is that each person is of equal value. 
• Freedom of religion is, ironically, intended to prevent precisely what the government of Indiana has done. It is designed and intended to stop the state from showing favouritism so that citizens are equal. In this way, Indiana has perverted the very right it claims to uphold. 

The real problem, I think, with perverting the law and conceptions of right in order to justify what is, in fact, prejudice, is that just about everyone and their dog can see through it. No one seriously believes that Indiana or Arkansas is trying to protect freedom of religion (because, as I said, this right is already protected and no one actually believes that their legislatures and executives are that dumb as to not understand that). Instead, what they see is that overt prejudice -- overtly making the argument that gays and lesbians are perverts or second-class citizens or criminals or mentally ill or despised by God -- is not politically feasible in America today. These arguments have become unacceptable to large and growing sections of US public opinion. Hence, what Indiana and other states have reverted to is prejudice by stealth: they are trying to find a way to maintain legal injunctions against gay and lesbian Americans after a slate of court rulings that say "no you cannot do that. It contravenes the Bill of Rights." 

Hence, the deception but I wonder if the deception does something further. I wonder if it makes people doubt the sincerity of politicians. After all, here is a case where language is clearly being twisted for ulterior motives. If the people who run the state will do this (will, in effect, try to deceive the public) ... what does that say, some people might ask, about politics? What does it say about those who win elections? Who are supposed to represent the citizens and the state? Who are supposed to have a degree of dignity and grace. 

I think, ultimately, it creates more political alienation ... and that is not good either. 

Anti-Gay Law in Kansas

The state government of Kansas is proposing a new anti-gay law, the likes of which must be deeply disturbing to just about anyone. You can find information on this law here:

http://www.slate.com/blogs/outward/2014/02/13/kansas_anti_gay_segregation_bill_is_an_abomination.html

I want to make several different points.

First, we need to ask this question: does the fact that you disagree "deeply" on "religious" grounds with someone legitimize state-orchestrated and supported discrimination against them? If the same law were proposed in, say, Saudi Arabia (I know nothing about Saudi laws, I am just using this as an example) but the terms were changed so that muslims were allowed to refuse service to any non-muslim, how would American conservative commentators react? The truth is that unless they reject this law, they do not have a leg to stand on because they themselves legitimize the principle that "deeply" help beliefs are legitimate grounds for discrimination (to fire people, to refuse to serve people, etc.).  I'd suggest that the fact that they wouldn't is a sign of hypocrisy: my prejudice is OK; yours is not.

Second, is this really what people in Kansas want to teach their children. If you believe something "deeply" discrimination is OK? If I believe that "deeply" that black people are the children of Ham (remember Handmaiden's Tale) and so one can refuse them service ... is that OK? In other words, where does it end? There are all kinds of things I believe deeply. Does that legitimize discrimination?

Third, is this the right use of "rights". Should rights be used to defend the marginalized, the oppressed, those who suffer violence? Or, should they be used to further marginalize, legitimize economic sanctions (because that is what firing is), and ostracize people who already suffer prejudice. Heath speaks of the "nobility" of rights when he asks this question. His question is simple: which is better: to use rights to promote equality, build community, and support integration or to use right to marginalize, oppress, and make violence more possible?

Fourth, as a Christian I am deeply concerned about this law because it has nothing to do with Christianity. Remember Jesus associated with the people who were marginalized and oppressed in their society. He defended those people who the mob wanted to stone, he used a Samaritan in the parable of the good Samaritan for a reason. How can anyone who claims to follow Christianity so flagrantly violate its basic tenets? Jesus told people that "all the law and all the prophets rest on two principles: love God and love your neighbour." Is this an example of loving your neighbour (for Jesus response to the question who is your neighbour, read the parable of the good Samaritan. Jesus also specified that one should not judge others.  He noted that one will be judged in the measure to which one judges others. So the Christian supporters of this proposed law want to be judged ... intolerantly? BTW, Jesus also did not like hypocrisy.

I am glad I live in Canada when I read things like this.