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I’m coming off a week-end of sheer outraged piss off, which is not really normal for me most of the time, and probably isn’t good for me.

The occasion was the absolute deluge of FB posts about the new Religious Freedom Restoration Act passed in Indiana.  By and large, these posts were by people who had not read the act in question, which is how I got declaration after declaration about how the act would allow EMTs to refuse to treat gay patients and Christian restaurant owners to refuse to serve gay people.

In the way, though, the people who had not read the thing were less disturbing than the people who had, because those people quite obviously had no idea what they were looking at.

So, if you don’t know the history, let me outline it briefly.

The original RFRA was passed by Congress in 1993 under bipartisan auspices (Chuck Schumer was one of the sponsors) and signed by President Clinton.  This happened because of a SCOTUS case in which the justices upheld the conviction under federal drug laws of a Native American who was using peyote in a religious ritual.  Instead of applying the USUAL standard for deciding such cases–the government must prove any law that burdens the free practice of religion addresses a compelling government interest and is the least burdensome way to effect that interest–the Court decided the drug war trumped the Constitution and used a lower and less difficult standard.

The federal RFRA did nothing but require the courts to decide cases where the r ight to the free exercise of religion came in conflict with laws on the ORIGINAL standard.

That’s it.

We went back to doing it the way we had always done it.

Then, in 1997, the Court decided that the federal RFRA applied only to federal law, and several states (including mine, CT) passed their own RFRAs to make sure the original standard was also used in their state courts.  The IN act just passed is not significantly different than any of those, and remains nothing but a standard to be used by courts.  If you have a beef with a state law and think following it violates your right to freedom of religion, you can bring a lawsuit and the court that hears it will be required to apply the compelling government interest/least burdensome method standard when it decides if you have a Constitutional right to be free of that law.

The first thing that really shocked the hell out of me was the fact that so many people thought the IN law was something brand new that was being trotted out so that people could discriminate against gay people.

The second thing that really shocked the hell out of me was that so few people know what a right is.

Okay.  I’ve known for a long time that most people in the US these days have no idea what a right is.  But the display of both ignorance and indignation knocked me off my feet.

Let’s start here:

Rights are not laws.

Rights, under the US Constitution as written, are restraints on government power.

That’s it.  They’re a list of things the government of the US and (through the 14th amendment) the states are not allowed to do.

The people who wrote that Constitution saw government as a necessary evil.  They never forgot that it was necessary, but they also never forgot that it was evil.

They thought of government the way many of us think of nuclear power–get it running right and it’s a boon; let it get out of control and it will lay waste to the landscape.

Rights–especially the rights in the bill of rights–were their attempt to figure out what the necessary controls were, to make sure individuals–and ONLY INDIVIDUALS–had free reign to make decisions about their lives without government interference.

Rights were not expected to make people moral, or to make civil society better and more just and fair, or any of the rest of it.

Rights were supposed to do one thing–protect individual citizens from their government.

Part of the problem here is that, over the years, we’ve come to use the word “rights” to mean a lot of things the word never meant in the 18th century.  We talk about the “right” to education and the “right” to Social Security benefits, for instance.

What these are are actually what are more properly called “rights in law,” benefits resulting from laws we pass that require positive action.

But you can’t have an actual right–see original definition above–to anything anybody has to give you.  You don’t own other people.  You have no absolute claim on their work or time.

And, unlike rights, such things are dependent on the whim of the electorate.  They can disappear tomorrow, and if you were stranded on a desert island you wouldn’t be able to access them at all.

Real (natural, Lockean) rights inhere in the person.  You have them on that desert island.  You have them even when governments violate them.  The are extrapolations from what we know to be true about human nature–if the government does THIS, society is innovative and free; if it does THAT instead, society is constrained and unproductive. Governments can violate rights, but they can’t escape the consequences of the violation.  In the end, the consequences will hurt everybody involved.

It is also sometimes true that rights very often mean that government is not allowed to step in when people are behaving badly.  Sometimes it means that government cannot step in even when people are being evil.

We live with the badness and the evil because it is the LESSER evil–allowing government the control that would (maybe) eliminate that evil ends in a far worse situation than leaving the evil alone and letting the jerks be jerks.

In the middle of one of the discussions I had, somebody accused me of being willing to defend any law as long as it was old, the implication being the the First Amendment, or at least the parts of it guaranteeing the free exercise of religion, was just an outdated piece of biased, bigotted nonsense that we should dump now that things are different.

But that is not why I would defend the First Amendment, and the rest of them, pretty much down to my last breath.  And it’s not why I thank the God I don not believe in that you can’t get rid of that amendment without the agreement of two thirds of both houses of congress and three quarters of the states.

I defend it because I think it is a proper and always necessary restraint on government power.  Government should not be allowed to force our consciences.  It should not be allowed to demand that we act in violation of what we believe.  It should have no power over our decision to live our lives according to our consciences.

The “free exercise of religion” does NOT mean that you get to huddle in your churches with your fellow believers and “believe” together as long as you don’t let out your beliefs in public.

It means that you get to live your life every day, in public and out loud, by the things you believe in, even if those things shock people, or hurt their feelings, or make them angry.

Mind you, this is only a restraint on government power.

Your fellow citizens are perfectly free to denounce you, fire y ou, refuse to hire you, call you names on FB, and all the rest of it.  They too have free exercise rights, meaning the government can’t stop THEM from telling you off.

People now seem shocked that the right to free exercise of religion might mean that some people can legally refuse to bake a cake for a gay wedding, for instance, and they think “discrimination” is such an absolute evil that it would should let the government force people to comply with the present Official Moral Position.

But the Official Moral Position today won’t be the Official Moral Position tomorrow, and letting the US government and the governments of the various states erect what are essentially state churches is not going to end discrimination, or prejudice, or bigotry.  It’s just going to set up a situation where the next guy who comes along will have that much more power to coerce us.

And he’ll use it.  And what he’ll use it for–well, I do rather think we’re going to see Republican majorities in both houses of Congress and a Republican President after 2016, and if we can establish an Official Moral Position now, I’ll bet they’ll have a few you really won’t like.

C0ntrary to all the hysteria, there is nothing to say that when the courts hear the cases that are coming, they’ll side with bakers who don’t want to make cakes for gay weddings.

They most definitely will NOT side with anyone (if there is anyone) who wants to refuse service to black people in their restaurant.  The compelling government interest behind the general public accommodations laws were established in case law decades ago.

“All men are created equal,” the Declaration says, “and are endowed by their Creator with certain inalienable rights; among these are life, liberty and the pursuit of happiness.  To secure these right, government is instituted among men…”

“To secure these rights.”  That’s what the government is supposed to do.  That’s it’s first job, to protect us from ITSELF.

Real rights are not anything we make them or any law we pass.  They aren’t about making people good or society just or any of the utopian stuff we all want.

They are protecting individuals from government, period.

And if we are not protected against our government, nothing else we get will be of any value, or any use, in the long run.


Written by janeh

March 30th, 2015 at 12:29 pm

Posted in Uncategorized

5 Responses to 'Rights'

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  1. I agree with every word Jane wrote, particularly the distinction between Constitutional right and “right in law”.

    But as someone looking on from Australia, I am puzzled by the heat of the topic. There are over 300 million people in the US. One person refused to bake a cake for one gay wedding and suddenly its the
    cause of the decade and the most important thing that is happening in the US. Really? Nothing else is worth worrying about?


    30 Mar 15 at 1:58 pm

  2. Has anyone considered that people with strong religious beliefs (Christians, Jews, Muslims and possibly others) are a persecuted minority subjected to strong discrimination?


    31 Mar 15 at 12:10 pm

  3. I’d have thought that they are more likely to be a persecuted majority (mostly silent) being harassed by a fanatical minority.


    31 Mar 15 at 6:47 pm

  4. Welcome to the late phase of Western Civilization, in which students are never told of the concept or natural rights. “Rights” to them are something the government gives them, like food stamps and unemployment benefits.

    And, definitions being in transition, the only way to avoid a lot of wasted time is to begin the discussion as you have done here, expounding a definition of rights your younger readers. Perhaps you could save it as a word document?

    The other definitional problem is “discrimination” which used to mean telling one thing from another, and now evidently means “making choices of which the left does not approve.” I was harangued recently on the evils of a world in which “discrimination” existed and when I suggested to the speaker that he regularly–I hoped–discriminated between wise and foolish, and good and evil, the whole concept was novel to this educated man.

    Among the many evils of the modern left, abuse of language is not the least.


    1 Apr 15 at 6:44 pm

  5. I really do–evidence to the contrary–dislike commenting twice and posting links instead of thoughts. But this is written so much better than I would have done it, and completely blows away the “public accommodation” argument so beloved of the triumphant Left:



    4 Apr 15 at 8:26 am

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