I have been reluctant to respond in the wake of the Supreme Court’s decision to declare marriage rights constitutional rights. I do not feel the need to retread ground that others, more intimately connected to these issues and the conflict surrounding these issues, have covered more adequately and better than I can. However there was one post that has stuck with me. Rachel Held Evans a popular Christian and political blogger, said on her Facebook page (6/27):
“Civil rights aren’t up to a vote. They aren’t up to public opinion. Civil rights are part of what it means to be an American citizen. Theological arguments around marriage set aside for another day, I simply cannot find a single compelling argument in support of denying civil rights to LGBT people that does not rely on an unhealthy marriage (sorry!) between church and state.”
I suppose Ms. Evans may have meant that civil rights are not up for an ordinary vote. If so, then what she said was a bit sloppy, but essentially correct. However, I suspect that what she meant was that Civil Rights are not up for a vote at all. Certainly it’s what was meant when Gay Rights activists in the seventies marched behind a banner reading “Human Rights Are Absolute,” quoting Jimmy Carter. His quote thus takes its place at the end of a long line of ideas that sound like wonderful affirmations of the human spirit until they are subject to five minutes’ thought.
Historically, of course, the idea that Civil Rights are not up for a vote is utter and complete nonsense. The very meaning of Civil Rights is “the rights you have as a citizen.” Do people really not understand the way this works? The Civil Rights we enjoy in the United States were created by a process of voting, from the Articles of Confederation to the Constitutional Convention, up through the Civil Rights Acts of 1964-68. All of those were done by voting. Some were prefigured in the English Bill of Rights of 1688, also passed by vote of Parliament.
To be sure, the Constitution itself declares that it is not the source, but rather the instrument, of the rights. The simple enumeration of these rights, declares the Ninth Amendment does not disparage the others retained by the states or the people. It points to a principle that the rights exist, but are merely codified by the Constitution, or the laws.
However, one of the very rights the Constitution protects, and explicitly enshrines, is the right to alter the Constitution itself, and that includes the Bill of Rights. Which of course, implicitly makes the claim that some rights are more absolute than others. The most important, in this case, would be the right to edit the codification of rights.
So when we say that human rights are absolute, do we mean they are morally absolute, and belong to us no matter what the State might say? Or do we mean that they are legally absolute: that we have a right to laws codifying and supporting our exercise of our human rights?
Historically, of course, we have meant the latter. This very process that we have seen last week meant the latter, except that the courts, rather than the vote direct, were the lever of choice. And when those Civil Rights have not been left up to (or enforceable by) the vote, both our American and British ancestors have fallen back on the other guarantor of Civil Rights: the sword. Which of course, is an even more dangerous precedent to build your human rights upon than the vote, although it is ultimately the same, because never, in the whole history of humanity, has there been an expression of popular will (or legal ruling) that did not ultimately depend on the possession and willingness to use force.
However, if the legal battle is merely over the power to express human rights that permanently exist and are, as Jimmy Carter said, absolute, then where do those absolutes come from? It certainly does not come from “science” or “nature.” A thorough study of science and nature will not lead to the least idea that “human rights” — certainly not rights to “life, liberty and happiness” — exist in nature or because of laws that can be derived.
See, I know Jimmy Carter and his religious background, and I keep coming back to one inescapable source for that absolute. The same one that the Declaration of Independence referenced, right after its 18th-Century Enlightenment appeal to “Nature:”
The Enlightenment thinkers, the Founding Fathers among them, may have had a lot of problems with their philosophies of life. Unthinking racism, sexism, an acceptance of chattel slavery as the cost of doing business, and a blind trust in a “Nature” they barely understood (hence “natural” rights), but one error they didn’t fall into was believing that an absolute was not required.
The idea that human rights — much less Civil Rights — are not up for a vote presupposes that they are grounded in an absolute truth. This must be clearly understood, because if it is not, then the whole idea that they are in any way special is founded on a lie. Moreover it is founded on the worst kind of lie: the lie that knows it is a lie, and does not care that it is a lie. It is the treacherous lie of the mob to itself that says, “We have created our own absolute, which we know is not an absolute, but we will call it one anyway because it makes us feel better.” Like the treacherous spouse that swears “Until death do us part,” all the while knowing they can call the divorce lawyer if ever they are dissatisfied, rights founded on this lie have no permanence and deserve no respect. At best they are a sort of mass-mysticism of human passion, liable to turn on their present beneficiaries in the next crisis. If we do not see this, we are blind. We can hold to no rights.
If we wish to reclaim our sanity, and to claim our rights are based on an absolute authority, we must identify that authority and its claims. And then we must submit to it. And if there is one thing I see in our nation that frightens and disheartens me, one thing that all sides in our present political morass share, it is the utter unwillingness to submit. Submission is only for our foes to do to us. Which will lead us inevitably back to the Absolute of the Sword.
It is, of course, those who are winning legal support to express their rights that should be most aware of the danger here. They are the ones who were most recently that target of laws that favored others’ expressions of rights above their own. They will feel most keenly the fear that tempts them to use their new power to suppress their old foes. To take revenge. To silence and destroy them. And this is a very real and complex conflict: just how far do we dare press some rights at the expense of others? We have seen above that we cannot treat them as equally absolute. In our present law, the right to change our legal rights reigns supreme. This is perhaps wise, as it allows that we may have erred in the past. But we could make laws immutable, favoring other rights. Legally, anyway.
What right will be favored? The right to express our feelings? Or the right to the feelings themselves, enforced by the binding of expression? Choose carefully. And admit to your absolute. The hypocrisy you avert must be your own.
From Somewhere In Orbit