A Shift in Rights

The Supreme Court's decision on the Hobby Lobby case upholding the First Amendment protection of religious expression (and conscience) is eliciting some odd complaints from those who are unhappy with the decision. The reason is that there has been a significant shift in how people think about the rights we have and the government's role to protect them.

Traditionally in the American system, our rights are negative – we have rights that others should not take away, but others have no obligation to do anything to provide these rights. The main thing is to refrain from limiting the rights of others. The First Amendment is a perfect example. It says that Congress shall pass no law infringing on the rights of citizens to exercise their free speech and religious expression. Don't inhibit these rights. But other citizens have no obligations to fulfill these rights, just not to infringe on them. That's a negative right.

But rights language has shifted 180 degrees, and those that are often talked about now are positive rights. These are rights that citizens hold that create obligations on other citizens to provide. There's talk of the right to clean water and decent housing. These are supposed rights that other citizens are required to ensure and provide. Those who object to the Hobby Lobby decision take this view of rights: Women have a right to the contraception of their choice, and these need to be provided by others when employers provide insurance. It doesn't matter to their view that the few "contraceptives" in question in this case (because they are abortifacients) are still available to women, they haven't been banned. Hobby Lobby has an obligation to provide this right by paying for them. That's a positive rights view.

The clash of these two views of rights is clearly on display in this case. One side thinks employers have an obligation to provide this right to women. The other side doesn't want the government requiring them to violate their religious consciences.

Imagine a group claimed they have a right not to go hungry and appealed to the government to make Chick-fil-a open on Sundays.  This group has a right that Chic-fil-a has an obligation to fulfill.  The owners point out that there are other options where people can eat on Sunday, and the government shouldn't require them to violate their religious convictions.  This is the conflict between positive and negative rights.  Can citizens place obligations on others, or do citizens with religious convictions have a right not to be compelled to break them?

The great irony in this clash of rights-talk is that employers would have nothing at all to do with women's "health care decisions" if the government didn't try to compel them to pay for it. The problem with the positive view of rights is that the government ends up involving other citizens in the rights of others and often ends up treading on their rights. Most of the rights talk in the Constitution and historically is negative rights – the government must not violate these rights. That was the point of the Bill of Rights. The new positive rights often end up conflicting with negative rights.

There are two very different views of rights going on, and they are bound to clash over and over.

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Melinda Penner

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