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- At this Thanksgiving Season we still have much to be
thankful for despite our deteriorating liberties and economic strength.
I remember on one occasion, when I was asked to give a closing prayer at
a church meeting, that I thanked the Lord for the "few remaining freedoms
we have left." Many in the congregation appeared shocked at my concern.
Most conservatives live under a common, but not well thought out notion
that we still have the full range of liberties left to us in the original
constitution. In my lead analysis this week, I discuss the difference between
true rights and false rights. This is especially apropos given the flurry
of claims by homosexuals that they have the "right" to be granted
special protections against an individual's right to privately discriminate
against them.
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- When conservatives fail to understand the true meaning
of individual rights, or lack a workable definition, they often make well-meaning
concessions to those claiming false rights, for example, the "right"
to an education, health care, welfare, or so-called "fair housing"
policies. None of these can be true rights when they require others to
involuntarily serve others' needs. The best legally judicable definition
that I have ever come up with for fundamental rights is this:
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- Fundamental Rights are those rights that everyone can
claim simultaneously without forcing others to serve their needs.
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- This definition contains two basic aspects: the principle
of non-conflict, and simultaneity. No definition of fundamental rights
is workable unless it is inherently non-conflicting. Obviously any claimed
"right" that forces another to serve someone's needs is inherently
conflicting with another's right to be free. Simultaneity is a jurisprudence
construct that forces the definition to apply to all claimants at the same
time.
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- Applying this definition, we can easily see that government
sponsored health care, education, and welfare cannot be fundamental rights,
because each claim forces someone else to provide the money, facilities
and resources to service this false right. On the other hand, the right
to enter into contracts that are voluntarily accepted by both parties can
be claimed by all simultaneously without conflict. In addition, people
have a right to defend their own life from external aggression, but the
right to Life doesn't extend to forcing others to provide sustenance for
that life (food, water, shelter). That can only be done rightfully by voluntary
exchange. Unborn and dependent children are in a special category here,
which I discuss in much greater detail in my Law and Government section
at www.joelskousen.com .
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- The issue of Gay Rights is a thorny one if we don't understand
which of their claims are true rights and which are false. The so-called
Gay rights movement has taken advantage of public ignorance on this issue
to claim many false rights in their broad package of "rights."
Homosexuals can engage in any voluntary relationship as long as other's
rights are not infringed. That includes private immorality as long as it
is kept completely private and does not compromise other contracts that
a partner may have with a spouse, for example. They can make any financial
arrangement they wish and can make contracts to pass on property rights
to a partner. Governments are bound to enforce breach of contract for homosexuals,
but it doesn't even have to take cognizance of one's sexual preference
to do so. This is irrelevant to a policy of defending individual rights
extended to all.
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- That said, homosexuals don't necessarily have the right
to force government to give them special recognition on par with marriage.
To understand why, it is important to understand that the only reason heterosexual
marriage comes under the purview of government is that children may be
produced as a result of that relationship, which cannot happen in a homosexual
relationship. Children have special rights for support that government
can and should enforce upon the parents because they were involuntary participants
in the act which brought them into existence.
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- This is a similar concept in law on how we apply responsibility
for torts (harm done to others). When you do harm to a third party through
an action for which you are responsible (a tort), you are no longer free
to walk away from the consequences of your harm to that person. Your prior
action and damage establish a new binding link to that person that is enforceable
upon you, under the law, until you make the victim whole (insofar as legally
possible).
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- This concept also provides a powerful argument against
the concept of "choice" in abortion. Once a couple exercises
their legitimate choice to engage in sexual relations, they are no longer
free to walk away from (exercise a new choice) the responsibility toward
the new person that is engendered as a result of their choice. The couple
doesn't have a follow-on choice that violates the right to life of the
entity engendered by that choice any more than a driver has the right to
walk away from a person damaged by his vehicle. Of course, that's why the
pro-abortion crowd tries so desperately to deny that an unborn child is
a person. Even though the new life form is not a fully developed person,
independent of the mother doesn't mean it can't qualify for protection
under the concept that it is a new life consequence of a prior choice of
two other persons.
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- One of the key demands of the homosexual community is
that they be included as a protected group under so-called "Fair Housing"
laws. This is an unfortunate outgrowth of Civil Rights laws, wherein private
owners of businesses are wrongly denied the fundamental right to discriminate
on private property. Government, being the servant of all the people, is
the only entity that Civil Rights legislation can be properly applied to.
As much as we may disagree with private discrimination based solely on
race, like free speech, we must defend someone's right to bias on their
own private property lest we all lose the right to free association or
non-association. The courts evade this principle by declaring any business
that serves the public as "public" not private--which is totally
wrong.
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- Here is a recent example of how a conservative religious
organization, not understanding the proper role of individual rights, bent
over backwards to accommodate the Gay Rights movement, and ended up undermining
the individual rights of its own members. The Church of Jesus Christ of
Latter-day Saints (Mormon) played a significant role in turning out thousands
of its members to do door to door canvassing in behalf of Proposition 8
in California, banning same-sex marriage recognition by the state. When
Prop 8 passed, the Mormon Church was singled out by the Gay and Lesbian
movement as a target for hostile and illegal persecution that included
vandalism to Mormon Churches and the firing of Mormon managers working
for organizations under the influence of Gay and Lesbian movement. Those
acts alone belied this movement's claim to be fighting for universal rights.
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- Unfortunately, in an effort to appease the growing attack
on the Mormons by Gay and Lesbian coalitions and their establishment allies,
Church leaders made several statements asserting that the Church is "not
against" Gays and Lesbian's assertion of their "rights."
In Utah, Gay organizations even hired space on billboards quoting the Church's
"not against" statements about Gay rights. Sadly, the Church
did not properly qualify those general support statements and thus failed
to help their members distinguish between false rights Gays were claiming
and legitimate contract rights that all possess.
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- It all came to a head this month in Utah when the Church
went out of its way to make a public statement in favor of a proposed Salt
Lake City ordinance to grant Gays protected status from private discrimination--as
long as the Church and its educational institutions were exempted. The
Provo Daily Herald was the only local newspaper which correctly pointed
out thet flawed thinking of Church leaders and the damage it had unwittingly
done to the rights of its individual members. The Church may have meant
well but it clearly didn't think this issue through as to the repercussions
on individual rights. Here are some excerpts from the Herald's editorial,
my comments in [brackets]:
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- "The [Salt Lake City] ordinances are intended to
protect gay, lesbian, bisexual and transgender residents from discrimination
in housing and employment. In the process, they create a bizarre legal
disconnect that allows a church, as a corporate entity, to discriminate
in the furtherance of its professed religious beliefs, while individuals
with sincerely held religious beliefs are denied the same privilege.
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- "A church spokesman said the outreach to local homosexuals
was possible because the final language of the housing and employment ordinances
will not affect the church's marquee issue of traditional marriage. 'The
church supports these ordinances because they are fair and reasonable and
do not do violence to the institution of marriage,' said spokesman Michael
Otterson [yes, but what about the violence they do to individual rights?
Marriage is not the only institution that needs protection].
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- "The endorsement reverberated far beyond Salt Lake
City. The New York Times wrote: 'The church's support was seen by gay activists
as a thunderclap that would resonate across the state and in the overwhelmingly
Mormon legislature.' Other headlines give a flavor of the national impact:
'Utah Leading On Gay Rights,' 'Landmark Moment' and 'Gay Rights Gaining
Momentum.'"
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- These quotes demonstrate that the Gay and Lesbian movement
were fully aware of the great victory the Mormon Church had given them,
even if the Mormon leadership did not. Mormon leaders merely felt they
were making a non-harmful compromise that would win them points with other
mainstream groups that were increasingly accepting the position of "gay
rights." They were mistaken on both counts. Supporting Gay Rights
made the Church no less hated by homosexuals, and actually weakened Mormon
member's ability to exercise their personal right to not be forced into
association with Gays. The Provo Herald continues:
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- "By blessing Salt Lake's pro-gay legislation, the
LDS Church has, at minimum, helped to nudge sexual preference into the
list of protected classes, as shown by the recent burst of optimism among
LGBT activists preparing the Common Ground Initiative for reintroduction
in the next session of the state Legislature. Nor should the church underestimate
its national, or even global, influence. It has been a bulwark of stability
in a world of moral relativism, and it is watched closely.
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- "Downplayed is the fact that the church's endorsement
came only after secret negotiations yielded special exceptions for itself
and other religious organizations (corporations or educational institutions,
for example). While the church's public stand is being hailed for its happy
effect on LGBT persons as a class, another aspect -- a troubling one --
has been only lightly noted. The ordinances have significant negative implications
for personal religious liberties.
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- "The nation's highest courts have ruled repeatedly
that the U.S. Constitution protects personal religious exercise under the
First Amendment. But in Salt Lake City, only organizations can claim exemptions
from the anti-discrimination law 'for reasons of personal modesty or privacy
or in the furtherance of a religious organization's sincerely held religious
beliefs.' The exemptions protect preferential hiring and housing by an
organization on religious grounds.
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- "But these exceptions neglect individual rights
altogether. In other words, the LDS Church as an institution may act, on
religious grounds, in a way that would be illegal for any of its own members.
This is an absurdity. Churches and 'expressive associations' get an exemption
because of their religious scruples. They may discriminate, but the rest
of us may not.
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- "Salt Lake's new ordinances discriminate against
landlords or others who may have personal religious objections, say, to
facilitating those whose behavior they believe is grossly immoral and,
if tolerated, will lead to God's condemnation. That view is both Biblical
and contemporary, and it has been drummed into Mormons for the better part
of two centuries. Thus, a believing property owner in Salt Lake City is
now compelled by law to become an accessory to what he views as sin."
The Herald's next point is extremely crucial:
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- "Whether an individual's beliefs are reasonable
or not is entirely beside the point, according to court rulings in recent
decades. What matters is only that a belief is sincerely held. It need
not be consistent (though it may be) with any official ecclesiastical position
or practice, or connected to any formal organization, association, sect
or authority. That's according to the Supreme Court since at least the
early 1980s, and from federal appeals courts more recently. The high court
has unequivocally stated that judges may not impose any external definitions
from 'authorities' in deciding what constitutes an individual's religious
point of view. Just the opposite: your religious belief (apart from narrowly
fraudulent claims) is what you say it is, not what anyone else says."
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- "'[W]e reject the notion that to claim the protection
of the Free Exercise Clause, one must be responding to the commands of
a particular religious organization,' a unanimous court held in a 1989
case (Frazee v. Illinois Department of Employment Security). New Supreme
Court justice and former appeals judge Sonia Sotomayor wrote for the 2nd
Circuit in 2003 that judicial scrutiny 'extends only to whether a claimant
sincerely holds a particular belief and whether the belief is religious
in nature.'
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- "This goes straight to Salt Lake City's new ordinances,
whose compromise language is out of step. The city immunizes a 'religious
organization' -- such as the LDS Church -- from sex-preference-based discrimination
charges, while subjecting all individuals with sincerely held religious
beliefs to a different standard."
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- "Civil rights are appropriately governed at the
state level, not by each separate city or county. City ordinances are best
suited to matters of local zoning, business regulation, traffic enforcement
and the like. Civil rights, on the other hand, apply broadly to all citizens;
therefore such laws should be enacted broadly [true]. A Utah resident's
expectations about civil rights should not change like a kaleidoscope while
driving from one city to the next. The state does not need a patchwork
of varying standards enacted by different local governments whose views
may vary widely on who or what deserves protection."
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- I commend the Provo Herald for the best response in the
country to this unfortunate issue. I have given this editorial significant
space in the WAB because it is crucial for conservatives to know how to
properly view the doctrine of rights. It takes a lot more than simply declaring
"all rights come from God." It takes solid understand of the
principles underlying law and what must be done to establish those rights
in law where they can be protected. It also must go beyond the simple defense
of the Bill of Rights which was never intended as a comprehensive listing
of all rights--hence the language of the 10th Amendment (which, sadly,
did not enumerate which rights would be left to the people after the states
got done usurping all that the feds did not claim to control).
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- - End Excerpt
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- World Affairs Brief - Commentary and Insights on
a Troubled World.
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- Copyright Joel Skousen. Partial quotations with attribution
permitted.
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- Cite source as Joel Skousen's World Affairs Brief
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USA
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