Rights vs. Privileges

In law school, my Constitutional Law professor asked us to define the word rights, as in "What are the rights we possess?". As an intellectual exercise, it is a worthwhile one, even if often times the courts and legislatures in our country fail to differentiate the two. Still, I think that the distinction is not only possible, but necessary. 

Rights are God-given and inalienable. In other words, we are born with them (or some might even argue, conceived with them, but that's another topic for a different post) and they cannot be taken away from us. The Declaration of Independence recognized some of those rights--life, liberty, the pursuit of happiness--and the U.S. Constitution enumerates others. But neither of those documents grants us the rights that we possess by virtue of our birth on this earth.

Privileges, on the other hand, essentially amount to permissions granted to us by government. When the government affords us the ability or authority to do something, it can also take it away. Thus, when we receive our driver's license, we are subject to the whims of the state on whether we can keep it. 

These two distinct concepts are often conflated intentionally to muddy the waters, but there's a simple way to differentiate between the two. A right is incapable of jutting up against another right. Privileges don't have that, ahem, privilege. To illustrate this point, consider the right to free speech. My right to speak extends as far as I can stretch it, up until the point where it would interfere with your right to speak. Thus, I cannot use my right to free speech to silence you, nor can you use your right to silence me. We can both speak at each other and not accomplish a whole lot, but we are both still free to speak.

On the other hand, a privilege that is often branded as a right is health care access, specifically to prescription birth control. When the Department of Health and Human Services provided an exemption to numerous companies that held sincere religious or moral objections to providing birth control for employees, people shrieked at the shift in policy. But as the government giveth, so the government taketh away. The very requirement that companies provide birth control to employees was a government privilege enacted through the Patient Protection and Affordable Care Act, or Obamacare as it is more commonly known.

One of the high-minded debates that goes on in law schools and other academic circles, then, is what happens when rights run up against privileges? And today, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court of the United States will hear those very arguments. This is "the gay wedding cake" case, as it's colloquially known. However, the stakes in this case make it abundantly clear: "[it's] not about the cake."

This case pits the freedom of conscience embedded in our nation's founding against the government-granted dignity provided by anti-discrimination laws. For proof of the former, look no further than the thousands of people who fled England and Europe in pursuit of religious freedom to found America. For the importance of the latter, we can look to the 1964 Civil Rights Act and cases like Heart of Atlanta Motel, Inc. v. United States. In other words, no matter the outcome of the case, this nation stands to lose a large part of its identity.

A lot of people say that we have to think and speak and act a certain way. Whether it's believing that everyone stand for the national anthem, or the idea that a bakery open to the public ought to bake a cake for same-sex ceremonies, the central theme appears to be that a person’s thoughts and opinions are no longer his own. To think differently is to be intolerant. And tolerance above all else has become the end goal for many in society. Nonconformity is the new pariah, and there are plenty of Joseph McCarthys out there to cast aspersions on those who will not tow the lion.

It's easy to say that Masterpiece Cakeshop owner Jack Phillips is wrong and is simply using religion to discriminate. But people with such a simplistic view of the situation do not understand the battle going on within Phillips's conscience when he has to tell a gay couple he cannot make a custom wedding cake for them. The Bible tells us that the two greatest commandments are to love God with all of our heart, mind, and soul, and to love our neighbor as ourself (Matthew 22:35-40; Mark 12:28-34). But the Bible also tells Christians to live apart from sinful desires and to put on our new selves in the image of God (Ephesians 4:17-24). And for many Christians, although same-sex marriage is now a legal reality in the United States, it is still a sin against God (1 Corinthians 6:9; 1 Timothy 1:9-11). Therefore, forcing someone to participate in a same-sex marriage ceremony by baking a cake--a symbolic and edible representation of the union--is to force that person into celebrating a sin, and thereby violate his or her conscience.

In the 1943 case West Virginia State Board of Education v. Barnette, the Supreme Court ruled that schools cannot force students to pledge allegiance to the flag (much to the chagrin of many Republican politicians today, I'm sure). The Court's reasoning is something that can serve as a beacon of hope amidst this tidal wave of social tolerance washing over us:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Our dignity does not lie in the privileges granted to us by government, or on the misguided hope that we can have our cake and eat it too. Trusting in government to provide us with dignity will only set us up for a greater fall down the road, when it's no longer convenient for us to be dignified. Instead, we should find our sense of worth in the rights that God bestows on us from birth. Only when we recognize the value that He sees in us will we begin to see the value in each other, and that cannot be given to us by government.

What Does It Mean to Be Free?

I think as a basis for freedom we can agree that both life and liberty constitute the foundation. For one cannot be free if he is enslaved to death or another man. Therefore self-ownership--to be the master of one's own domain--is essential to freedom. It is important to note that self-ownership means that the results of one's labor are his to do with as he wishes. So individual property is an equal tenet to the foundation of freedom.

But with this basic foundation, what creates the walls of Castle Freedom? When colonials were creating the form of government we now know in the United States today, they realized they were giving up part of their freedom voluntarily to "form a more perfect union". But in return, many states required certain protections for the many freedoms (they called them "rights") possessed besides those named within the Constitution. They drew up the Bill of Rights as a list of the rights which we keep and the government may not infringe upon. The ninth amendment is an especially important one for what it states:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

This means that we may have many more rights than those expressed within the United States Constitution.

But overall, it seems pretty straightforward, right? Freedom of speech means we have the right to speak and believe what we want and cannot be persecuted by the government for what we say. And yet throughout our history the federal government on down to local governments have passed laws infringing upon that right. Currently, hate crimes legislation is nothing more than punishing someone for their beliefs.

Well, what about the right to keep and bear arms, our second amendment? Even leaving out the exception of catastrophic weaponry such as nuclear and chemical weapons, everything from handguns to automatic rifles have been heavily regulated and even outright banned in our country. Fortunately, a few key Supreme Court decisions (District of Columbia v. Heller and McDonald v. Chicago) have pushed back against government restrictions in recent years.

At least we can freely associate with whomever we choose, correct? Au contraire, dear reader. Laws  denying individuals the right to marry based on their skin color or sexual orientation have plagued our society, and prostitution--sex between consenting individuals based on the transaction of money--is outlawed in all but a few places in our country.

So why is it that these freedoms and so many more are trampled upon on a daily basis? One possible reason is fear; people are afraid of what unchecked freedom may result in. They worry that if restrictions and regulations are not put in place, then people will abuse their freedoms. But to be free does not mean one is free from responsibility of his actions, but that he is free to take responsibility. A person who infringes on the most inherent rights of another (remember our foundation of life, liberty, and property) is held accountable for such. But my right to swing my arms ends just in front of your face, to paraphrase a common saying. So I am not entitled to use my freedom in such a way that in inhibits the freedoms of another person, and that is the crux of the issue.

Many people assume that with the freedom of speech comes the freedom to not be offended. That, to some extent, is the basis for hate crimes laws--prosecuting individuals more heavily based on their thoughts about the victim's race, religion, sexual orientation, etc. It also seems to be the go-to defense of many people who hear something that they don't agree with, or that upsets them. But just as I have the freedom to speak my mind, you have the freedom to not listen.

With the freedom of religion--the ability to worship who or what we believe in--comes the freedom from religion: no state-sanctioned or sponsored religion. The freedom to associate with whomever one wants does not mean that a person can be forced to associate with an individual with whom they do not want.

Another reason society may be willing to place restrictions on freedom is due to a misplaced sense of justice. They rightly believe that all men (as in humanity) are created equally. However, in our society, some people are born into rich environments and some into poor. It is from there that they feel it is fair, equitable, just to provide assistance to individuals who were born into less-than-favorable circumstances. So they feel that taking the property (most often in the form of money) from wealthy individuals or organizations and giving it to the impoverished is justifiable.

An extension of the freedom of association is the freedom to voluntarily donate one's property (wealth) to an individual or organization of his choosing. The key, though, is that it is voluntary. It goes back to our main tenet of self-ownership. If a man does not have control over himself and his property then he is not free. To stake a claim on another man's property is to exert unjust power over him and ultimately, infringing on his freedoms.

We should strive to create a world and society that expand freedom for all, but not at the expense of taking freedoms from others. Even our forefathers made the mistake of establishing freedoms for some while denying them to others. But that does not negate the principles stated within the Bill of Rights. Freedom from coercion is what we should strive for. We must primarily recognize that our rights are not granted to us by government (for that which is given by man can be taken away), but we are endowed with them upon birth. And it is those freedoms that both make us human and make us equal.