When Rights Conflict, part 2: How to Determine which Rights are Natural

The question of how to determine which rights are natural seems difficult to answer conclusively.  My attempt to establishing some guiding principles here are not informed by a proper education in law or moral philosophy, so I expect and invite critique.  I will begin with what I think is intuitively obvious: a right is natural if it is derived from what is ‘natural’ in man or an innate characteristic of human nature.

An innate characteristic of human nature would be, by definition, universal:  applying to humans across time and space. It would not be contingent, therefore, on when or where one lives and thus not vary with factors that change with space and time. An example would be the possession of a moral conscience.  Humans by nature are moral agents, having a moral sense by which we judge ourselves and others’ actions.  While some moral standards may vary among cultures present and past, the presence and execution of moral standards does not: to be human is to possess a sense of oughtness. Hence, a right to freedom of conscience, being derived from this innate quality, is a natural right.

Conversely, a socially-constructed right would be derived from some quality that is ‘unnatural’ – a characteristic that is not innate but contingent on circumstances (and can therefore be ‘alienated,’ i.e. separated from us).  Abilities (what we are capable of doing) are such a characteristic.  Abilities vary from culture to culture, across space and time, because of technology.  For instance, we now have the ability to control birth artificially – an ability that has increased dramatically in the last 100 years.  This ability has given rise to the idea that we have a right to contraception, and not just the freedom to practice it but the expectation that the state enable it by forcing the public to pay for it.  This cannot be a natural right, though, for the simple reason that cannot be had by nature of being human:  it can only be had by humans who live at a time and place where they have a certain ability.

The conflict between these two rights was the issue in the Hobby Lobby Supreme Court case.  The Court had to decide whether to uphold freedom of conscience against claims to a right to contraception.  I’ll look at this case more in depth in my next post.

When Rights Conflict, Part 1: Natural Rights versus Socially-Constructed Rights

First Amendment rights increasingly collide with other rights in our courts.   The right to equal protection under the law clashes with the right to exercise one’s conscience freely when Christian business owners refuse to service gay marriages.  A right to health care conflicts with the free expression of religion when a religious school refuses to cover certain contraceptives in its health insurance plans.  When rights conflict, how do we know which rights should take precedent?

This question may be too complex to take on in the medium of a blog.  It’s a question that I recently raised in the Ethics portion of my Theory of Knowledge class. Answering it requires an exploration of the nature of rights.

The Bill of Rights in the U.S. Constitution is based on the Enlightenment notion of natural rights.  A belief in natural rights is enshrined in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Rights are described as “unalienable,” a term borrowed from property law.  James Rogers explains, “An “alienable” right over property means that the property can be sold or given away by the owner. Property that is “inalienable” cannot be transferred by the owner (First Things, “Rights You Can’t Give Away,” June 2012).” Hence, “unalienable” signifies something that cannot be given or taken away.  A natural right is unalienable because it is not foreign or external to human nature (such that it could be given away), but inherent in human nature (and thus cannot be given away since it is inseparable from us).  So while I can give my time and treasure to the State (alienable), I cannot give away my conscience (inalienable).

In contrast to natural rights, which the State recognizes and secures, socially-constructed rights are invented and conferred by the State.  They are not inherent to human nature, but are contingent on the power of the State.  Simply, natural rights are discovered while socially-constructed rights are created.  Thus, natural rights are the same for all humans everywhere, transcending time and space, whereas socially-constructed rights vary with time and space.

This distinction may help resolve conflicts in rights.  If the conflict (meaning that protecting legally one right requires violating another) is between a natural right and a socially-constructed right, , the natural right should upheld first Natural rights should take precedent because they constrain the power of the state, setting limits on what demands the state can make of us. Rights that originate with State power cannot by nature restrain State power:  if the State creates them, the State can violate them.

This argument requires, of course, that one can discern which rights are natural: a question I will explore in my next post.

Facing Real Threats to Religious Freedom: the City of Houston and Free Speech from the Pulpit

Last week I promised to focus next on a recent victory for religious freedom in the U.S. federal court system.  Due to a serious and stunning event this week in Houston, I instead want to turn attention to how real are current threats to religious freedom in this country.

Some prominent local pastors’ sermons were subpoenaed by the city of Houston. The reason? These pastors were thought to oppose the Houston Equal Rights Ordinance (known by the Orwellian acronym HERO) – a city law which gives transgendered people the right to use public restrooms for the sex they identify with.  So, a biologically-endowed male would have access to women’s bathrooms if he claimed a transgender identity (how transgender claims would be validated is not at all clear; the problems this could cause are glaring). If prevented from using opposite sex restrooms, transgendered people have the right, under this ordinance, to file a discrimination complaint.

After HERO was passed by the city council, a petition was filed to submit the ordinance to a public referendum.  In spite of having over 50,000 signatures, the petition was rejected by the city.  Citizens filed suit against the city.  In response a subpoena was issued, seeking “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

The sheer audacity of this move is stunning.  Here we have a local government using subpoena power to intimidate pastors into silence on moral issues that conflict with the government’s agenda. This is not only a direct threat to the free exercise of religion but obviously stifles free speech.

The good news is that the pastors refused to comply and the public outcry from around the country created such a public relations nightmare, that the mayor of Houston backed down, even blaming the attorneys who filed the subpoenas ‘pro-bono’ for the city. Thankfully, efforts to stand up to violations of First Amendment rights in this country will likely still succeed. But this can change in less than a generation if citizens refused to take stand.

To learn more, please see this commentary:

http://www.focusonthefamily.com/socialissues/defending-your-values/houstons-religious-freedom-problem

Preserving Religious Freedom: Understanding the “Establishment Clause”

bill of rights

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – the First Amendment to the U.S. Constitution

According to the Bill of Rights page at archives.gov, our Bill of Rights was written to mollify criticisms of the Constitution that it did not do enough to check the power of the central government and would lead to the same kind of tyranny the former colonists knew under Britain. These critics demand that citizens’ immunities be spelled out explicitly.

This simple context is important to interpreting the First Amendment rightly.  These amendments were written to limit the central government’s, especially the legislative branch, power over its citizens.  They are an enumeration of the natural rights referenced in the Declaration of Independence as the transcendent grounds of revolution – the God-given rights which government exists to preserve.

It is significant then that the “Establishment Clause” of the First Amendment is about what Congress cannot do in terms of supporting or suppressing religion. It is not about what you cannot do as a citizen, what families cannot do, what businesses cannot do, what schools cannot do, what churches cannot do, or even what state and local governments cannot do (which makes me wonder about the extent to which state and local laws must abide by amendments directed toward the federal government – any contributions here would be appreciated).  Too often the First Amendment is misconstrued and misused by applying it too broadly to discourage other persons or institutions (who are not Congress!) from advancing the influence of religion in society. It is meant to protect us from the central government, whose inclination, as the history of Europe attests, is to wed itself to religion to advance its power interests, not from those who would freely exercise their religion by trying to promote it.

Such abuse of the First Amendment is often accompanied by appeals to the so-called “separation of church and state.”  This specious argument is used, it seems, when someone is uncomfortable with religious adherents engaging in religious activity in any kind of public space. Notice that this phrase has no part of the Bill of Rights.  Its origins lie in a letter from Thomas Jefferson to Baptist pastors in Virginia, assuring them that the Baptist church would not be oppressed by the government. This concept has no legal authority!

A second observation is that religious freedom is the first one enshrined in the Bill of Rights.  The order is no accident; this is not arbitrary.  The order speaks to the importance:  other rights/freedoms follow from the right to exercise religion without interference from the federal government. Why this is the case is a question I will explore in later writing.  Suffice to say that religion limits the power of the legislature by affirming the existence of and promoting the knowledge of divine Law, which limits the obligations the central government can impose on us, and that all men – the powerful and the penniless – are accountable to obey.

A final observation is that the two criteria laws must satisfy are in an either/or relationship.  In other words, a law is unconstitutional if it violates either of these standards.  More secular minded people are often very sensitive to the not establishing religion standard but ignore or downplay the free exercise part. Establishing religion has to do with using the power and resources of the federal government to establish a national Church.  It is not a license for suppressing the influence of religion in the public sphere, which the ‘free exercise of religion’ entails.

In my next post, I will look at some recent Supreme Court decisions where the First Amendment has been applied faithfully to uphold religious freedoms.

Renewed Focus Proposed

My infrequent blogging of late is indicative both of recent busyness and of motivation.  With so little interaction with readers over blog posts, I often wonder whether writing is worth it.  At first, I was motivated to write largely for myself, hoping that some people would read and occasionally benefit from what I had to say. But this motivation of late has not been enough to make it a priority.  I need to be spurred by some confidence that it may also be valuable to others.

With that in mind, I am considering a season of exclusive writing on a topic that I have touched on occasionally, but that I am finding is something that inspires my passions politically and socially perhaps more than anything else:  religious freedom.

While Americans still enjoy, relative to much of the rest of the world and to much of history, tremendous religious freedom, it is, I’m more and more convinced, as vulnerable as it has ever been in our nation’s short history.  Anyone who loves liberty enough to fight for it should be concerned about threats to religious freedom, regardless of their particular religious convictions, because religious freedom is the foundation for other freedoms.  Other freedoms are contingent on religious freedom because the right to live according to one’s religious beliefs is the main force that keeps the power of the state in check.  Religious freedom is about living according to moral authority that is higher than the authority of the state.  Without belief in such an authority and freedom to obey it, the authority of the state becomes the highest and ultimate authority, and thus has the power to encroach upon other freedoms.

This is what is on my heart to write more about.  But I need to know that it matters to others.  If you read this, please let me know what you think!

The Dignity of Labor

Last minute Labor Day reflection, borrowed from the late, venerable Chuck Colson.  May your attitude towards Mondays be forever transformed!

What does Labor Day mean? For most of us, it’s nothing more than a welcome break from what we tend to see as “the daily grind.” Work to so many people is simply a necessary evil. The goal in life is putting in enough time to retire and relax.

But that attitude and that goal is contrary to a Christian worldview perspective on work.

Christians have a special reason to celebrate Labor Day, which honors the fundamental dignity of workers, because we worship a God Who labored to make the world—and Who created human beings in His image to be His workers. When God made Adam and Eve, He gave them work to do: cultivating and caring for the earth.

In the ancient world, the Greeks and Romans looked upon manual work as a curse, something for lower classes and slaves. But Christianity changed all of that. Christians viewed work as a high calling—a calling to be co-workers with God in unfolding the rich potential of His creation.

This high view of work can be traced throughout the history of the Church. In the Middle Ages, the guild movement grew out of the Church. It set standards for good workmanship and encouraged members to take satisfaction in the results of their labor. The guilds became the forerunner of the modern labor movement.

Later, during the Reformation, Martin Luther preached that all work should be done to the glory of God. Whether ministering the Gospel or scrubbing floors, any honest work is pleasing to the Lord. Out of this conviction grew the Protestant work ethic.

Christians were also active on behalf of workers in the early days of the industrial revolution, when factories were “dark satanic mills,” to borrow a phrase from Sir William Blake. In those days, work in factories and coal mines was hard and dangerous. Men, women, and children were practically slaves—sometimes even chained to machines.

Then John Wesley came preaching and teaching the Gospel throughout England. He came not to the upper classes, but to the laboring classes—to men whose faces were black with coal dust, women whose dresses were patched and faded.

John Wesley preached to them—and in the process, he pricked the conscience of the whole nation.

Two of Wesley’s disciples, William Wilberforce and Lord Shaftesbury, were inspired to work for legislation that would clean up abuses in the workplace. At their urging, the British parliament passed child-labor laws, safety laws, and minimum-wage laws.

But here in America we’ve lost the Christian connection with the labor movement. In many countries, however, from Canada to Poland, that tradition still remains strong.

Much of our culture has a distinctly Greek view of work: We work out of necessity. But, you see, we are made in the image of God and as such we are made to work—to create, to shape, to bring order out of disorder.

So this Labor Day, remember that all labor derives its true dignity as a reflection of the Creator. And that whatever we do, in word or deed, we should do all to the glory of God.

The Gospel According to the Avett Brothers – Our Need for Redemption, part 4

The folk rock group the Avett Brothers are securely established among my most favorite musical acts. I wrote a series a couple of years ago about the echoes of the gospel of Jesus Christ in their music.  After seeing them in concert for a second time this past Friday, I felt inspired to add to that series a couple more lyrics analyses of some of their older songs, the meaning of which really hit me for the first time.

The Avett’s 2007 album Emotionalism explores the gamut of human emotions.  I want to look at the track “Shame.” The simple (and very singable!) chorus speaks to a deep longing present in every human heart:

Shame, boatloads of shame
Day after day, more of the same
Blame, please lift it off
Please take it off, please make it stop

Have we all not felt, even desperately so, the need for such emotional relief, after wronging or greatly disappointing someone?

The audience of this plea is ambiguous.  It’s likely a disappointed, perhaps jilted lover, who he has wronged.  The first two versus suggest this:

Okay so I was wrong about
My reasons for us fallin’ out
Of love I want to fall back in

My life is different now I swear
I know now what it means to care
About somebody other than myself

I know the things I said to you
They were untender and untrue
I’d like to see those things undo

So if you could find it in your heart
To give a man a second start
I promise things won’t end the same

He is clearly seeking a renewal of the relationship from his wronged lover. How can this happen?  Shame is an emotional response to being blamed for or accused of a wrong – to moral disapproval. For the shame to disappear, the blame must be removed.  While we might attempt to remove blame ourselves, through self-justification and rationalization, this fails because we achieve removal not by lifting it off, but by stuffing it deep down inside – suppressing it. The burden of blame is too heavy for us; it must be lifted off by the offended party.

This process is initiated by humble contrition.  The speaker admits, without condition or excuse, that he was wrong and needs a second chance (no argument here that he deserves a second chance).  In other words, he is taking the blame.  This is indeed ironic:  to remove the blame, one must first take the blame. The renewal must be given and received then as a gift.

Are his pleas answered?  There is a hopeful sign at the end that they were and that blame was lifted (this was the verse that hit me hard at the concert):

And everyone they have a heart
And when they break and fall apart
And need somebody’s helping hand

I used to say just let ‘em fall
It wouldn’t bother me at all
I couldn’t help them now I can

The sign of “lifted blame” is compassion for others living under its weight and an ability to be a blame lifter. Under the burden of blame himself, when others were ashamed (“and when they break and fall apart), he couldn’t help them.  Instead, he would blame them (“I used to say just let ‘em fall) for their own demise.  But stark change has taken place in his heart (“I couldn’t help them now I can”).  It is clearly implied that this newfound ability to help results from his own blame being lifted.  This is the language of a man who can forgive because he has been forgiven.

Now the question returns to “Who lifted it?”  It might be obvious that it was the jilted lover.  This is certainly possible.  But it seems that she is not the only one causing shame:

Okay so I have read the mail
The stories people often tell
About us that we never knew

The potential sources of shame from people who would blame and accuse seems endless.  How then can we hope for blame to be lifted completely, permanently?  Only when the One who knows all the wrongs that make us blameworthy and who all our transgression ultimately offend becomes the blame-lifter.

God promises to lift blame from our shoulders by taking our blame upon Himself.  This is what the cross of Jesus Christ is all about.  Without this accomplished in our lives, we would not only carry our own blame forever, but would only be able to cast blame on others, never being blame lifters ourselves.  But having been forgiven, we are then freed (in the sense of being empowered) to forgive others.  Thus, Jesus taught, “Whoever has been forgiven little, loves little” and ties our practice of forgiveness with others sins to his forgiveness of our sins.