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When Rights Clash – Revisited.

Compelled-Speech-ROH A few days ago we wrote a post concerning the New Mexico State Supreme Court decision in the case of Elane Photography LLC v. Vanessa Willock.

The case involved a photographer who declined to contract with a gay couple who were going to hold a “commitment ceremony” / wedding. The photographer declined the contract on the basis of religious objections. The New Mexico Supreme Court ruled the photographer could not refuse the contract because the New Mexico Human Rights Amendment declared a business could not discriminate on the basis of sexual orientation (amongst other protected classes of people.)

We found two issues with the decision. First, we don’t believe the First Amendment compels speech or expression. Photography is an art form – a form of expression – and such expression should not be compelled by the government. Secondly, we thought that forcing some one to do something against their religious beliefs was wrong.

After the post went up, we kept doing research on the topic. (More on that later.)

As we were researching and reading, were received two comments from two people that are really good – so good in fact we wanted to highlight them in this post.

The first comment was made by local radio host, blogger and author Steve Bussey. While the whole comment should be read, Bussey says:

One person’s or group’s “rights” cannot take precedence over another’s and nobody in America has a “right” or the power to compel another to provide goods, services or time for any reason.

Bussey has said in the past (and if we are misrepresenting him, he will let us know) that he believes that God given / natural rights are absolute.

The second comment is in rebuttal of Bussey, and is written by local historian and author John Fergus.

Once again the total comment is worth reading. Fergus concludes with:

If Mr. Bussey hates discrimination as much as the next guy, and had the opportunity to annul the Civil Rights Act, how would he propose ethnic discrimination be addressed so as not to return to conditions as they were prior to that act? I expect today we might even add those with Middle Eastern backgrounds to our list of those excluded.

If the answer to the last question is to let the free market operate, or to let the states address the issue, then I ask why those mechanisms were ineffective for so long, a century, even in the face of the activism of the decade prior to 1964?

We find merit in both positions. In our opinion Bussey’s point is harder to defend in a practical sense but at the same time he rightfully notes that through the years we have seen a reversal of the long held belief (and well understood by the Founding Fathers) that rights are from God / nature. Now we see people who hold the belief that rights are granted by the state or government.

That is not to say that Fergus is wrong.

We believe it is important to note that we are talking about the realm of the public sector – the area of commerce and business with the public.

When a person hangs out a shingle and says to the world “come do business with me,” he is opening that business to all – not to just a certain group of people. When one is sitting in one’s home, if you want to be a racist / sexist moron, that is up to you. But there are two components to opening a business – the good that benefits the owner of the business in the form of a livelihood and the good to the community in making needed goods and services available to others.

Bussey relies greatly on the writings of the Founding Fathers and that is a good thing. To understand more, we went searching for what they believed and said.

In searching, we found a 1960 article from the Washington and Lee Law review.

The entire article can be found here, but we wanted to highlight this portion of the article:

Jefferson and his contemporaries generally understood that the natural rights were subject to the limitations imposed by natural law. “All natural rights,” said Jefferson, “may be abridged or modified … by the law,” meaning, obviously, the natural law. In accepting the proposition that natural rights were subject in their exercise to the limitations contained in natural law principles, the founders of our country had before them a very clear statement of Blackstone who especially influenced the lawyers of his time. Blackstone had written in his famous Commentaries:

“This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature…..”

Natural law limitations upon the exercise of natural rights embrace in principle (1) consideration for the common good, (2) respect for the equal rights of others, and (3) realization that when the basis of the right is absent, the exercise of the claimed right can properly be denied. All these were understood by the Founding Fathers. In discussing natural rights and their exercise, Jefferson observed, “The law of the majority is the natural law of every society.” By this he gave no blessing to the arbitrariness of a legislative majority, but meant rather that respect for the good of the majority is an ever present limitation upon the exercise of individual rights. “A man has no natural right in opposition to his social duties,” Jefferson added. When the exercise of natural rights, other than the freedom of conscience, imperiled the common good, the exercise could be restrained by the group.” According to George Mason, even freedom of religion could be limited when “any man disturbs the peace, the happiness, or safety of society.” Very similarly, James Madison indicated that no man should be “subjected to any penalties or disabilities unless under the color of religion, any man disturb the peace, the happiness or safety of society.”

It is important to note how the Founding Fathers believed that society did not allow for limiting the exercise of religion except in the circumstances where there was actual harm done to another individual or society in general.

The reason for that is understandable. Religion – or the freedom of conscience – is at the very core of every individual. When you restrict that person’s religion or conscience, you are restricting their very right to think and therefore causing that individual real harm.

So how does that play out in the real world? As in the case of Elane Photography LLC v. Vanessa Willock?

When Elaine Huguenin opened her photography studio, she entered into a part of society where there are mutual benefits to both her clients and herself. When a hypothetical black couple walks in the door to hire her, she gets paid the couple gets the benefit of beautiful pictures. The same thing can be said about a Hispanic couple, an Asian couple, a “ginger” couple, etc.

In those cases, both parties benefit.

However, when Elaine Huguenin is forced to act against her religions beliefs or her conscience, while there is a benefit to the couple, there is harm done to Hugunin.

When there is actual harm done to people and there are other alternatives to that harm being done (ie other photographers) we are going to side with the rights of people.

From what we have read, that belief is consistent with the beliefs of the Founding Fathers and we can live with that.

Once again, please take a moment to read the comments of Mssrs. Bussey and Fergus.

NOTE: as we were typing this, Mr. Bussey weighed in with another comment saying:

Freedom can be a very difficult and even dangerous proposition but there is no acceptable alternative and there are no acceptable levels or types of government tyranny and despotism. The ends do not justify the means.

We don’t agree that requiring a business performing the service or supplying the goods for which they entered the public sector is, in and of itself “tyranny and despotism.”

If there is harm to another person’s rights, (such as an affront to one’s religion) that is one thing. But absent of that harm, we don’t see a downside to a person fulfilling the actions for which they entered to the public arena to begin with.

Where we agree with Bussey is that there is a creeping of governmental intrusion into the rights of people. We cannot simply say “we are going force someone to do something because we like it.”

This is a balancing act of the rights and benefits in society and we need to be ever vigilant in keeping that balance.



One Response to “When Rights Clash – Revisited.”

  1. John Fergus says:

    Mr. Afterwit,

    This has been an interesting discourse, particularly (at least for me) as it explores in the real world that murky landscape between the rights of the individual and the rights of all those other individuals who comprise the society of which that individual is a part.

    I purposely limited my questions to differentiation on the basis of ethnicity and interaction in the venue of commerce. As you noted in your opening to your initial post, there is a “ Slippery Slope”. And I share concerns about how this is playing out in our society, about overreach on the part of government, at all levels. I say this with the proviso that I see each municipality, county, and state as an experiment in the proper balance between personal and social rights. As such, I accept greater latitude in the scope of government as it becomes more local and accessible to those governed – if one does not like how one town is run and cannot convince a majority to agree at the polls, one normally has the option to move to another more to their liking. This gets progressivley harder at the county, state, and certainly national, levels. The Tenth Amendment to the U.S. Constitution explicitly provides for such diversity at the state level.

    The founders of this nation had sufficient social cohesion to agree to state in the Declaration of Independence that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (emphasis added). Without that shared conviction (solid or tenuous as it might have been), upon what authority does one make such a statement? The very basis of our national character (self-evident truths) was built on a religious (but not denominational) foundation.

    That social cohesion as to what constitutes the moral basis for our society is badly eroded. Some refer to ours as a post-Christian society. And we are seeing the consequence. Without a common moral foundation, the next logical (the only?) “authority” available is man, himself. That authority traditionally is exercised in the form of civil government, or where that is lacking or ineffectual, gangs/strongmen/warlords/or whatever one wants to call them. Civil government without a solid moral base can be expected to eventually devolve into “might makes right”. By “might” I refer to those who control government, and the coercive forces at its disposal. The might behind government need not be force of arms; it can be an abundance of financial resources or the ability to arouse masses of citizens to action. We are seeing all three play out today around the world.

    Although the Declaration states that “all men are created equal”, failure to apply this ideal, in the form of slavery, Jim Crow, and more subtle means, has been a festering canker on American society. There the social cohesion did not exist, at least on a national level. The result was the nation’s bloodiest military conflict that did much to consolidate power in the federal government.

    As James Madison wrote, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Neither is the case. He goes on to write that, “A dependence on the people is, no doubt, the primary control on the government…” Without a shared social ethic, that seems unlikely.

    We, indeed, live in interesting times.

    John

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