If conservatives want to insist on the priority of rights, they shouldn’t be surprised when they see their other goals slipping away.
Consider the way current Republican contenders for president have reacted to the case of Kim Davis, the Kentucky clerk who spent Labor Day weekend in jail for refusing to issue marriage licenses to gay couples. “This,” Mike Huckabee told ABC’s “This Week,” “is what [President Thomas] Jefferson warned us about. That’s judicial tyranny.”
Huckabee is not the only Republican presidential candidate who invokes the language of the radical left to defend the positions of the radical right. “I’ll tell you, I stand with Kim Davis unequivocally,” echoed fellow candidate Ted Cruz. “I stand with her or anyone else the government is trying to persecute for standing up for their faith.”
“She’s not going to resign,” one of her lawyers, Mat Staver, declared. “She’s not going to sacrifice her conscience, so she’s doing what Martin Luther King, Jr. wrote about his Letter from the Birmingham Jail, which is to pay the consequences for her decision.”
Not too long ago, religious conservatives were happy to be the moral majority, wielding government power against people too extreme in their demands and too outlandish in their lifestyle to be accepted as normal. But with gay marriage now legal everywhere in the United States except American Samoa, and with the majority of Americans now in favor of it, right-wing politicians are increasingly falling back on the language of rights—transforming from a moral majority to an aggrieved minority. Liberal elites, they insist, constitute an establishment persecuting the godly the way the Romans crucified Christ. The Supreme Court’s ruling in favor of gay marriage, Louisiana Gov. Bobby Jindal told his followers after the decision, “will pave the way for an all out assault against the religious freedom rights of Christians. … This ruling must not be used as pretext by Washington to erode our right to religious liberty.”
Freedom, liberty, rights, resistance to tyranny—these words are quintessentially American. What conservatives seem to forget, however, is that they usually constitute the rallying cry of those seeking greater social justice, enhanced equality and toleration of difference. If conservatives want to insist on the priority of rights, God bless them. But they should not be surprised when the other goals they seek—limited government, opposition to affirmative action, the importance of moral obligation, and the defense of hierarchy and authority—all become more difficult to achieve.
Rights, for one thing, while offering protection against an intrusive state, cannot be enforced without the help of the state. To be sure, there exists something called negative liberty, or the freedom to be left alone. But neither Jindal nor Huckabee resembles Henry David Thoreau, an earlier signatory to a Grover Norquist-like no-tax pledge. Thoreau was an abolitionist who retreated as far from politics as possible, not a presidential candidate relying on votes from white southerners.
Today’s conservatives, rather, seek a form of positive liberty: not just the right to have a belief, but the accumulation of the resources necessary to turn that belief into reality. Everyone’s favorite example of what is at stake here, at least until Kim Davis came along, illustrates the point. Both liberals and conservatives would agree that a Christian baker has the right to regard homosexuality, in her heart of hearts, as a sin; freedom of private conscience is widely accepted in the United States. The real test, however, is whether that same baker can refuse to provide a public service to a gay couple that she willingly provides to everyone else—a clear act, whether one supports it or not, of discrimination. Conservatives believe she should have such freedom. The problem is that this can only happen when government establishes an exception to a general law and backs that up exception with its enforcement powers. As we have seen, abolishing discrimination requires an active government. What Republicans tend to forget is: So does permitting it.
Here’s another reason why Republicans may come to regret their hasty support for religious rights. Calls for positive liberty nearly always come to support one version or another of affirmative action. It is not difficult to imagine conservative Christians demanding something similar; indeed as they talk about their exclusion from universities and the media, let alone the war directed against them every Christmas, it seems we are already halfway there. Once groups start viewing themselves as helpless victims against unjust tyranny, their burning sense of injustice will know few bounds. No one in America likes affirmative action—except when he benefits from it. Let their anger at perceived victimization fester, and conservative Christians will find the language of diversity perfectly compatible with, as well as a proposed remedy for, their sense of exclusion from top-fight colleges, the senior ranks of the military and major corporations.
The irony in all of this is that conservatives not long ago opposed gay claims by arguing against “special” rights. It was never clear what conservatives meant by that term, but it seemed to imply that gays were demanding rights held by no one else, such as immunity from criticism or rendering “conversion therapy,” efforts by conservatives to “cure” homosexuality, illegal. As recently as this past April, Gov. Bobby Jindal, as if failing to recognize that the conservative script was undergoing serious revision, spoke about gay-friendly New Orleans on “Meet the Press”: “My concern about creating special legal protection is [that] historically in our country, we have only done that in extraordinary circumstances,” he said. “It doesn’t appear to me we are in one of those moments today.”
Jindal should have cleared his remarks with Huckabee, easily the most radical of all the conservative Christians running for president. Unlike Jindal, Huckabee believes that we face extraordinary, indeed momentous, circumstances. The right to marry, in his view, is not some ordinary privilege like opening a business or even worshipping in church. Only God, he believes, not some random collection of judges, can redefine marriage. Talk about special rights! Women seeking an abortion only want a state-recognized right, not a God-given one, as do gays seeking to marry. But in Huckabee’s world, conservative Christians would be granted a right possessed by no one else—and it would be enforced by an authority greater than that of the state. No wonder Kim Davis concluded that the law did not apply to her; God was clearly on her side.
As if support for special rights and positive government were not enough, conservative Christians also want to expand the list of those eligible for rights. The concept of rights, as developed by thinkers such as John Stuart Mill in his brilliant and still relevant On Liberty, was reserved for human beings, creatures who singularly possess the capacity to plan their own course of life. Unless people can think and decide for themselves, Mill argued convincingly, rights are superfluous.
In the Hobby Lobby case decided last year, the five conservative U. S. Supreme Court justices disagreed. In his controlling opinion, Justice Samuel Alito held that requiring employers to include coverage for birth control methods in health insurance plans violated the Religious Freedom Restoration Act because closely held business corporations can be considered persons whose religious liberties must be respected. “A tremendous victory, not only for Hobby Lobby, but for all those being forced violate their deeply held convictions as a result of this Administration’s assault on religious liberty,” wrote Cruz. Christian colleges, the Catholic Church, non-profits—all now can share the status of religious dissenters such as Roger Williams or Anne Hutchinson, determined to practice their faith in spite of governmental efforts stop then. In this, conservatives have gone further in their quest for rights than liberals ever have: Liberals believe in expanding rights, but, other than those who back them for animals, they never expanded them as far as conservative politicians and judges have in the past year.
But Republicans might find that this victory ends up undermining a key tenet of their platform. As Boston College law professor Kent Greenfield has pointed out, corporations routinely insist that they are responsible only to their share-holders. This mantra is at the heart of the idea of “free enterprise.” But what if corporations are persons? Would that mean they have they have other obligations, in the way that people do? Firms that harm the environment, for example, may be under an obligation to improve the land. Greenfield believes that the left should welcome the move toward corporate personhood because it would give corporations (or closely held ones at least) more public responsibility.
Indeed, every right gained comes with corresponding obligations. In the 1960s, that most left-wing of decades, extreme leftists and counter-cultural drop-outs approached lawless anarchy in the way they talked about rights: The whole point of having them was to be free of arbitrary restraint. Much like private corporations claiming the right to do as they wish, leftists of that era believed in conceptions of freedom that were extreme in their refusal to take the needs of others into account. My right to abortion ought to be fundamental and unrestricted, some claimed, while others argued that the substances they ingested mattered only to themselves.
Thankfully, this is no longer the case. The right to an abortion, a majority of now women recognize, cannot be allowed to become just a form of birth control; it must be treated as a serious decision with deep moral consequences for others. A number of determined protestors of the Vietnam War, myself included, later came to recognize that there are situations, such as the genocide in Rwanda, where rich nations do have a moral obligation to intervene abroad in the name of justice. The symbol of the gay rights movement was once the bathhouse, a place in which, sexually speaking, anything went—including HIV-AIDS. Now the symbol of gay rights in the wedding ring, as those who once sought liberation now seek considered legal and moral commitment.
If there is any place where the anarchism of the radical left in this country is kept alive, it is with those Christian conservatives for whom compromise is evil, politics useless and reason oblivious. Unlike freedom of speech or assembly, claims to freedom based on the will of God tend to be absolute: One does not disobey the Lord’s truth or carry out the designs of Satan. But here’s the rub: If you invoke a right to religion, you must also recognize that a society like ours has many religions, and therefore many truths. Huckabee, Jindal and the others are only at the first stage of rights assertion. They need to move to the second: the willingness to give in on some of their rights so that they can live together with others. Mormons did that when they abandoned plural marriage. Conservative Christians can do the same thing.
There is, in spite of all this, reason to cheer conservative Christians on in their quest for religion rights. For all their claims to be victims—and this in a society as religious and as Christian as any advanced liberal democracy in the world—Christians seeking rights will always be better than Christians bent on persecuting others, unless, of course, claims to rights become a form of persecution. (The right to broadcast Christian prayers at a Texas high school football game, for example, violates the rights of non-Christians and non-believers in the audience, as the court ruled in in 2000 in Santa Fe Independent School District v. Doe.) This country could benefit from a national conversation about rights: having them, asserting them and realizing them are what makes America great.
The trouble seems to be that in their quest for rights, conservative Republican politicians have lost all sense of the invisible ties that keep Americans of all faiths, or of no faith at all, united. The society they envision is one that caters only to their needs. If they had their way, we could all pick and choose only those truths that please us, those traditions that enrich us, those authorities that govern us and those ideals that move us. But that is anarchy—just by another name.
More than ever, Americans need visions that appeal to us all. In the past few years, we have begun to witness the emergence a younger generation more willing to question authority, develop innovative career paths, experiment with new ways of living together and willing to take their future financial security into their own hands. Let someone from the older generation, even perhaps myself, preach to them that they are going too far in their rejection of the tried-and-true, and they can reply that these days everyone wants to decide for themselves the best way to live, Christian conservatives definitely included. Where, one wonders, are conservatives when we need them?