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Let Them Eat Cake, Or Else...


There has been a string of recent cases illustrating the conflict between religious freedom and non-discrimination ordinances. In New Mexico, a baker was found to be in violation of the law for choosing to not bake a cake for a gay couple. Most recently, a florist in Washington state was found to be in violation of state law prohibiting discrimination. As the Washington Attorney General explained the decision, “If you choose to provide a service to couples of the opposite sex, you must provide the same service to same-sex couples.”

Underlying these court cases is the idea that private persons have a right to not be discriminated against by other private persons. But wait, where did this conception of right come from in the first place? The original liberal Enlightenment view saw rights as protecting an individual’s freedom from arbitrary power. This new idea of “rights”, however, is more like a tool that the government gives to one class of people so that they can use it against another class.

Nearly 100 years ago, the American legal scholar Wesley Newcomb Hohfeld attempted to build a framework within which you could distinguish different kinds of rights, and rights from their pretenders. I will assume the risk of drastically oversimplifying his attempt and break it down for you.

There are two forms of rights. The first is a “liberty right,” which refers to things you either may do or may not do as you choose. For example, you have the “liberty right” to sit in the third row of theater as opposed to the second, or to shop at the florist on 1st St. as opposed to the one on 3rd St. Because you’re not obligated to choose one or the other, you have liberty. Liberty rights define those things that you are not under an obligation to do and may therefore do at your will. They do not, however, protect you when the question of duty enters the equation. If all the seats in the 3rd row are full, you have a duty not to steal them, and therefore no longer have the “liberty right” to sit there.

The second kind of right is called a “claim right.” “Claim rights” describe the relationship between duties and obligations that exist between people and organizations. An employee who has fulfilled his work obligations has a “claim right” on his employer for his paycheck. The employer has a duty to ensure that the employee’s right is fulfilled. The Bill of Rights, in a way, creates a list of “claim rights” that the government has a reciprocal duty to respect. Citizens have a claim to free speech, freedom of religion, due process, and security in property. This means the government has a duty to go out of its way to respect these rights.

There has a been a tendency in recent legal thought to interpret all rights as “claim right,” and giving the right holder a claim they may use to invoke another person's duty. What is even more troubling is that courts are now giving claim rights, not against the government, but against other private persons. In the previously mentioned baker case, the legal reasoning is that a couple has a “claim right” to shop at the florist on 3rd St., and that their claim is directed, not at the government, but at the owners of the 3rd St. florist. So, the couple has the legal ability to impose a duty on the shop owner who must comply.

Ironically, the judges writing these decisions are doing so in the name of equal protection, even though the result is to unequally disperse power by giving one class of citizens a tool they may use to claim power over another class of citizens. The effect is nothing short of your inherited rights being turned into weapons against the very foundation that made them possible.


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