If the recent debate over RFRA laws and same-sex marriage teaches us anything, it is not that there are a bunch of bigots out there or that there are people being unjustly discriminated against. It is that, as a nation, we are facing a crisis of rights.
Witness the recent news item from Oregon: Last month, a judge pronounced that two bakers should pay $135,000 in damages for refusing to bake a same-sex wedding cake.
Now, we can look at this from a few angles. It could be that a couple of bigots are getting what they deserve. Or it could be that they are being unfairly demonized for doing their conscience. There are good people with good arguments on both sides of the debate.
We can all agree, however, that the Oregon case signifies a clash between opposing rights. Both sides of the argument claim to be in the right and to have the right to do what they are doing. On the one side are the bakers’ rights to conduct business as they please and to practice their conscience. On the other side are the customers’ rights to buy available goods and to not be discriminated against. The bakers’ rights necessarily infringe upon the customers’ rights, and vice versa.
One is tempted to chalk up the skirmish to an inevitable consequence of rights. The thought is that people want different things, and sometimes those wants come into conflict with each other. As it is with a rancher who wants to herd his cattle on someone else’s pasture, or the driver who wants to cut someone off while exiting the highway, sometimes it’s just ‘my rights versus yours’.
But, more than anything, this underscores a deep misunderstanding of the concept of rights. It is to assume that all rights are the same, and all conflict between them is an inner conflict within a self-contradictory system. We blithely accept the idea that the bakers’ rights are the same as the customers’ rights because, of course, they are both called ‘rights’.
A closer look reveals that the rights concerned are substantively different even though they use the same appellation. The fact is that the bakers’ rights do not force anyone to do anything while the customers’ rights more or less force the bakers to do something, and particularly something that would go against their consciences. This discrepancy means everything, and highlights the difference between two conflicting, even contradictory sets of rights.
Read the full article: How We Got Rights So Wrong