The headline read "3 in 4 say religious rights trump law." The article went on to explain that "In the Knights of Columbus-Marist Poll, nearly three in four Americans, 74 percent, said freedom of religion should be protected 'even if it conflicts with other laws.'" The juxtaposition of the headline and the explanation provide a perfect illustration of the way in which rights and freedoms are carelessly conflated these days, in a way that could have very damaging unintended consequences.
For example, if religious freedom per se trumps other laws, what about the so-called "honor killing" permitted by Islamic law in which a woman who has brought "shame" to her family is murdered to preserve family "purity"? Would the revival of human sacrifice, including the ritual slaughter of children, trump laws against murder? The ancient Greek historian Herodotus speaks of a people in the ancient near east who considered it a sign of reverence to eat the flesh of a dead parent as part of the ritual commemorating the death. Could neo-pagans seeking to revive this practice claim that their religious freedom forbids enforcing laws against the desecration of corpses in order to discourage their practice of cannibalism?
I think we can take it for granted that most Americans will react to these examples with feelings of revulsion. But as we know from the ongoing campaign to enforce acceptance of homosexuality, a small minority can use or abuse arguments that assert "rights" to demand acceptance of their behavior no matter how most other people feel. Today who contends, for example, that the fact that most Americans once found "race-mixing" repugnant justified the enforcement of laws against miscegenation?
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Since it's currently trendy to despise racism, many people will dismiss the latter question as a matter settled beyond dispute. But beyond their indoctrinated "feelings" (i.e., the stubborn assertion that racism is just wrong, everybody knows that), how many could actually articulate a reasonably cogent argument against such racist laws?
In this regard we have become accustomed to asserting "rights" while neglecting to remember the understanding of what is right that makes sense of the assertion. This right understanding is what makes it possible for us to identify and defend our rights in a way that doesn't promote evils many people agree to perpetrate against a few; or force the toleration of evils that a few persist in with enough force and intensity to wear down and intimidate the vast majority conscientiously repulsed by what they do.
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In the context of America's Constitution and laws, where do we find articulated the understanding of right that makes sense of the assertion of rights both the Constitution and the laws are supposed to respect; the rights that therefore trump whatever legal suit is brought against them? We find it in the Declaration of Independence, which establishes, as the basis for our reasoning about rights, the recognition of two self-evident truths: a) that as human beings we are all created equal, and b) we are endowed by our Creator (i.e., not by any act of human will) with certain rights inseparable from the way the Creator has fashioned us to be.
According to this understanding, the substance of any right (what it consists in) depends upon a prior decision by the Creator, reflected in the way we are made (our nature). Insofar as we know and understand our nature, we can know and understand our rights. But as far as we can tell our ability to know and reflect upon our nature distinguishes us from other creatures we observe. We act with knowledge, conscientiously. We not only move in response to hunger, thirst and other drives, we reflect upon that response. In our minds we stand apart from it, much as we stand apart from our image in a mirror, even while recognizing it as our own. This capacity for reflection makes us aware of our natural responses as consequence of our actions, eventually allowing us to take ownership of those actions as a matter of deliberate choice.
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The ultimate fruit of this deliberate conscience is therefore a sense of responsibility, wherein our ownership of our actions leads to a corresponding reaction for or against their consequences. In the moment of this corresponding reaction we draw them into ourselves and so pronounce them good, or push them away. But because we cannot escape, upon reflection, the knowledge that they belong to us, the latter revulsion brings us into conflict with ourselves, a conflict we experience as shame, guilt and self-negation.
"Thus conscience doth make cowards of us all," Hamlet observes. We flee internally from the evil that we do, unwilling to identify ourselves with what we have done, but unable to escape that identification. So we are made to distinguish the ease of right from the dis-ease of wrong, according to a moral scheme of representation that forces us to choose (elect) one or the other.
In the context of this understanding of the relation between conscience and unalienable right, we see clearly that every assertion of rights is a statement about what is right. When the slaveholders of the 19th century asserted their right to own slaves, they relied upon the notion that it is right for those superior in proven strength and ability to command the lives and labor of their inferiors. When the practitioners of abortion assert that it is their right to kill human offspring, they assert that it is right for those more advanced in their physical human development to destroy the lives of their inferiors. When the practitioners of homosexuality assert that it is their right to force society to accept, support and legitimize their conduct, they are asserting that it is right for people whose sexual activities transgress the natural bonds of procreation to command the consciences of others who reject their transgression.
But the recognition of natural right depends on respect for the bonds of natural conscience. Those who cast away those bonds deny the authority of conscience which establishes them. They cannot, thereafter, rationally appeal to conscience to legitimize their coercion of others. Having destroyed the authority of conscience, backed by the authority of the Creator, they are in fact relying upon the forces of law backed only by its arms, which is not law at all in any sense of right. If they persist, the only appeal is to Heaven, as John Locke says, with all that it implies (2nd Treatise of Government, Chapter III).