Understandably in the aftermath of a Revolution to separate ourselves from an autocratic King,
the Constitution is very focused on Rights; the “Bill of
Rights” was a first order of business for the new Congress. What it is less
clear about is the flip side of Rights: citizen Responsibility. The Rights
statements define obligations of the government to citizens of the United
States, but Responsibility was assumed by default. You start out with Rights
until you abuse them in some way by injury – either real or as a highly
probable potential – to others. (A 12-year-old child does not have the right to
drive a car. He may not have killed someone, but the likely possibility from
lack of good judgment is deemed too high to risk.)
Another one of those assumed principles in our Constitution
is our Right to Privacy. To be left alone. If I am causing no substantive harm
to you by my actions, then leave me the hell alone. Nowhere in our Constitution
is a Right to Privacy specified. (Perhaps the closest to it is the 4th
Amendment prohibition against unreasonable searches.) But this important Right
has been explicitly presumed in various Supreme Court decisions, most
notably(and perhaps ironically) in a 1965 decision overturning laws prohibiting
married couples from obtaining contraception aids (e.g. “the pill” newly
available), and a 1972 decision overturning laws prohibiting abortion (“Roe v.
Wade”). Not withstanding the lack of an express statement, most Americans believe and expect that Right to be part of
their citizenship package. Whatever legal briefs may be filed, the Right to be
Left Alone is at the heart of much resistance to a perceived intrusive
government. But Privacy, and Rights in general, often collide in the face of
expectations of Responsibility. It is a collision that is at the root of many of
our social arguments.
For example, take our 1st Amendment guarantee of Freedom of
Religion, which says “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” In our homes and churches,
temples, and mosques, we have a Right to adopt and practice whatever religion
we may choose – including none at all. This individual Freedom can only happen
if our government remains strictly neutral about all religions, and prohibited
from showing any preference of one religion over another. It is a promise
virtually every President has upheld, even when “religious leaders” – and some
politicians and lay people – periodically call for their institutions and
religious beliefs and practices to dominate over others. (People seem to easily
forget that that neutrality is the very thing that allows them the freedom to
practice their religion at all.)
The Right to practice the religion of our choice in the
privacy of our homes and houses of worship nevertheless bumps up against the
Rights of all citizens in the public marketplace and government services. We
are all equal citizens one-to-one, an equal count in the voting booth, an equal
voice in the public debate, an equal owner of our government. Our Constitution
guarantees each of us equal opportunity and standing as a citizen unrestricted
by race, color, heritage, marital status, gender, or, with some limitations,
age or physical health. Nor by most any other categories we have not yet come
up with to try to separate ourselves.
Our Constitutional Rights are generally personal to the
individual. But the detailed laws that carry out these Rights define our
Responsibilities to the Community in which these Rights are exercised. We
always live simultaneously in both worlds, as individuals while concurrently a
member of a mutually interdependent community. Humankind may have once lived
entirely self-sufficient lives, without a need for others. That is impossible
in today’s shrunken political, economic, social, interconnected world. When we
move out of our private lives, and engage in the public place, Responsibility
becomes equal to, and sometimes dominant over, Rights. It is a necessary
accommodation for creating a civilized society.
In our homes, we can associate with whom we choose – likely people
very similar to us. But in the public marketplace, we do not choose: everyone
is the same. Some of us remember all too well the signs saying “We reserve the
right to refuse service to anyone.” In fact, “anyone” inherently meant Blacks
and Mexicans, sometimes Jews and Catholics. Women and LGBTs were not even
considered worthy of a conversation. Ultimately, our Constitution caught up
with, and abolished, such public bigotry. If one is in the marketplace, all
citizens are entitled to be served
regardless of what one chooses to believe or do at home. A Jewish shopkeeper may open a Kosher Jewish
deli, but when my friends in Boston took me there, there were usually as many
Gentiles there as Jewish patrons! (No religious test for good ethnic food.)
Taking the illustration further, in the privacy of their own
homes, Justices of the Peace and marriage license Clerks can believe anything
they want about the moral correctness of same-gender marriage. But the State
has its own secular definitions of marriage from a legal ownership and benefits
perspective. It is a perspective that cannot deny a citizen’s Rights based upon
the religious choice of either the public servant or the couple seeking the
marriage. Each religion has its own religious definitions, ritual, and rules of
eligibility to sanctify “religious marriage” within that faith – a freedom with
which the State does not interfere. The Community obligation to issue a secular
marriage license does not also require you to perform the religious ceremonial
ritual. If one chooses to be a public official or officer of the court, the law
of community takes precedence, not the Right of Privacy or Religion.
The Rights versus Responsibility distinction will always be
a source of tension if not outright conflict. Both seem clear when considered separately;
the appropriate relationship between the two is rarely easy to determine,
especially when two Rights go head-to-head against each other. This same
tension is found in all of our Constitutional Freedoms vis-à-vis our laws of
Community: gun ownership, freedom of speech, freedom of press, voting
procedures. No Right of Freedom can disregard Community Responsibility; no laws
of Community can arbitrarily overwhelm Rights. We cannot just have it one (i.e.
our) way. The teetering point in between is always a difficult case-by-case
compromise, often on a trial-and-error “best effort” basis, determined by
people of good will towards each other: respecting Privacy, while building
strong Communities.
I am usually comfortable with this Rights and Community tension,
willing to let each person hold to their individual beliefs and private conduct
while expecting respect and accommodation in the public place. But sometimes I do
wonder … if I were a small entrepreneur, a baker of cakes in a small shop in my
little town, and a Skinhead or KKK member walked in one day and asked me to
inscribe a cake with a blatantly offensive racial slur or societal threat – how
would I respond?
Theory meets daily reality. Life is never perfectly clear. Rarely
does it offer easy answers. In the end, there is not a “right” answer. There is
only our good will, and best wise judgement, brought to bear that truly matter.
© 2016
Randy Bell www.ThoughtsFromTheMountain.blogspot.com
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