On one hand, reaction to the Supreme Court’s majority opinion in Hobby Lobby was much ado about a modest decision, but on the other hand, the opinion — by implication — may have opened the door to ending our culture war and thereby saving the nation from permanent distemper and political dysfunction.
The majority opinion really broke no new ground about women’s rights. Since the Harris vs. McRae opinion of 1980, no woman has a fundamental personal right to have the government pay for her abortion.
So when the majority in Hobby Lobby ruled that a woman does not have an actionable claim on another private individual to pay for her decisions as to prevention of pregnancies, it was not stepping very far at all from the cost-allocation principle first enunciated in Harris vs. McRae.
Hobby Lobby was a case about who must pay for expressions of personhood when two private parties differ deeply about the values associated with such expressions. It did not deny women their fundamental right to have control over their reproductive options, holding only that they can’t impose the cost of living by their values on other citizens having very different values.
Here the opinion teaches us a very important lesson — one so far overlooked by nearly every commentator on the right and on the left: There are two kinds of rights, one more profound than the other.
• • •
The first kind of right, the very fundamental kind, is usually called a positive right. Such rights can also be called natural rights, since our jurisprudence considers them to arise without the aid of government as pre-existing in our humanity itself.
These are the rights of life, liberty and property that John Locke praised and that entered our politics through the Declaration of Independence as “life, liberty and the pursuit of happiness” — humanity’s trio of inalienable rights. They function as private powers and prerogatives, fenced off from harm caused by government. These rights permit a person to act in the world as he or she believes to be right and can so afford.
These positive rights can also be considered rights of opportunity. They guarantee no outcomes.
The classic list of such rights is found in the Bill of Rights added to the Constitution. It includes such rights as freedom of religion, freedom of expression, freedom from police coercion, freedom to bear arms, freedom to petition the government, and freedom to live and to use personal liberties and for property to be untrammeled in the midst of society.
Each individual must pay for the exercise of these rights. We have no claim on our government to buy guns for us, pay for our political activities or support our churches.
Then, a second class of rights was invented by the Jacobins during the French Revolution. These were enjoyments created and paid for by the state, such as education, employment, retirement benefits, home mortgages and health care. These are called negative rights in that one person is entitled to the enjoyment, while another has a duty to provide it.
These negative rights became the jurisprudential justification for the modern welfare state. They are subsidized aids to the enjoyment of life, liberty and the pursuit of happiness.
With the advent of the baby-boomer culture war after the 1964-65 success of the civil-rights movement, a new set of such negative rights was proposed to better empower an individual’s psychosocial personhood. These were status demands for communal recognition and accommodation of individual identity based on the person’s views of his or her gender, age, disability, race, ethnicity, sexual preferences and so on. Duties were assigned to some citizens that others might benefit.
Many such negative rights were duly created by legislatures — and by the courts following legislative lead — usually under the public-policy goal of removing unjust “discriminations.”
Thus, the right to civil marriage for same-sex couples is a social convention agreed to or not by the body politic and so became another battleground in the culture war.
More recently, demands for censorship of other private citizens based on standards of political correctness fueled advocacy for another negative right — a duty imposed on some not to speak so that others might more securely enjoy their personhoods.
Imposition of duties to give others their negative rights did not sit well with many whose values did not privilege the benefits associated with those rights. So the culture war broke out in the 1970s between religious conservatives who did not want to vindicate — or pay for — personhood preferences that conflicted with their values and those who sought to live happily in opposition to those conservative social and cultural conventions.
The gist of our culture war mostly has been a religion-light values conflict over negative rights associated with personhood — the positive right to an abortion being the very large exception to this observation.
• • •
When the Hobby Lobby majority opinion used free exercise of religion — a positive right — to shield one set of personal values from another, it unwittingly opened a door to ending the culture war.
The opinion urges us to convert negative rights to positive ones using the principle of religious liberty and the related liberty of conscience that we should live free of too-intrusive value claims of others.
As a citizen, I have no constitutional duty to you to pay for or otherwise support how you live your life in line with your core transcendental beliefs. And, reciprocally, you as a citizen have no constitutional duty to me to pay for or otherwise support my living out my beliefs.
I may not like what you believe or do pursuant to your beliefs, but that is my problem to suffer through as long as you leave me alone with my views. And the same for you. I am to leave you alone with your beliefs.
And government is to be neutral, neither establishing your religious values on me nor mine on you.
My positive right is simply to get along without demanding that you fully affirm my personhood as it appears privately to me (though I may always hope for your good will). And you have a similar positive right to live without making a corresponding demand on me.
In our respective spheres of private rights, our values may never intersect. But in the public square, we owe each other a measure of respect for each other’s freedom of belief and its related sense of personhood. Civic virtue rises above the centrifugal pull of disparate religious points of view.
The culture war thus can end with both sides winning. Neither gets to trump the values of the other. The terms of the nonaggression pact are that no denigration, deconstruction, marginalization, sarcasm toward or psychic oppression of any other in the public square is justified. We have to learn to live and let live. We will have to find the strength of character so to do.
As much as possible, therefore, negative rights must be converted on our individual parts into positive rights. Henceforth, as we search for happiness in which our chosen personhood can flourish, we must shoulder the burden of reaching our goals by ourselves for ourselves.
By enhancing private rights of autonomous personal responsibility and so reducing our claims on the public, we minimize the social frictions arising from our many conflicts over deeply held values.
Prof. Zechariah Chafee once wrote that “your right to swing your arms ends just where the other man’s nose begins.”
Any insistence by you on exercise of a negative right that imposes an unsolicited duty on me must be defended by proof of an exceptional disability on your part and some claim of ethical obligation on my part arising from reasons not associated with your needs.
But I have a fair rejoinder that your disabilities are not as burdensome as they may seem to you and that the ethical obligations you would impose on me are not as compelling as you make them out to be.
Stephen B. Young, of St. Paul, is global executive director of the Caux Round Table, an international network of business leaders working to promote a moral capitalism.