If conservatives want to insist on the priority of rights, they shouldn’t be surprised when they see their other goals slipping away.
Has anyone noticed that the further right Republican conservatives move, the further left their rhetoric becomes?
Consider the way current Republican contenders for president have reacted to the case of Kim Davis, the Kentucky clerk who spent Labor Day weekend in jail for refusing to issue marriage licenses to gay couples. “This,” Mike Huckabee told ABC’s “This Week,” “is what [President Thomas] Jefferson warned us about. That’s judicial tyranny.”
Huckabee is not the only Republican presidential candidate who invokes the language of the radical left to defend the positions of the radical right. “I’ll tell you, I stand with Kim Davis unequivocally,” echoed fellow candidate Ted Cruz. “I stand with her or anyone else the government is trying to persecute for standing up for their faith.”
“She’s not going to resign,” one of her lawyers, Mat Staver, declared. “She’s not going to sacrifice her conscience, so she’s doing what Martin Luther King, Jr. wrote about his Letter from the Birmingham Jail, which is to pay the consequences for her decision.”
Not too long ago, religious conservatives were happy to be the moral majority, wielding government power against people too extreme in their demands and too outlandish in their lifestyle to be accepted as normal. But with gay marriage now legal everywhere in the United States except American Samoa, and with the majority of Americans now in favor of it, right-wing politicians are increasingly falling back on the language of rights—transforming from a moral majority to an aggrieved minority. Liberal elites, they insist, constitute an establishment persecuting the godly the way the Romans crucified Christ. The Supreme Court’s ruling in favor of gay marriage, Louisiana Gov. Bobby Jindal told his followers after the decision, “will pave the way for an all out assault against the religious freedom rights of Christians. … This ruling must not be used as pretext by Washington to erode our right to religious liberty.”
Freedom, liberty, rights, resistance to tyranny—these words are quintessentially American. What conservatives seem to forget, however, is that they usually constitute the rallying cry of those seeking greater social justice, enhanced equality and toleration of difference. If conservatives want to insist on the priority of rights, God bless them. But they should not be surprised when the other goals they seek—limited government, opposition to affirmative action, the importance of moral obligation, and the defense of hierarchy and authority—all become more difficult to achieve.
Rights, for one thing, while offering protection against an intrusive state, cannot be enforced without the help of the state. To be sure, there exists something called negative liberty, or the freedom to be left alone. But neither Jindal nor Huckabee resembles Henry David Thoreau, an earlier signatory to a Grover Norquist-like no-tax pledge. Thoreau was an abolitionist who retreated as far from politics as possible, not a presidential candidate relying on votes from white southerners.
Today’s conservatives, rather, seek a form of positive liberty: not just the right to have a belief, but the accumulation of the resources necessary to turn that belief into reality. Everyone’s favorite example of what is at stake here, at least until Kim Davis came along, illustrates the point. Both liberals and conservatives would agree that a Christian baker has the right to regard homosexuality, in her heart of hearts, as a sin; freedom of private conscience is widely accepted in the United States. The real test, however, is whether that same baker can refuse to provide a public service to a gay couple that she willingly provides to everyone else—a clear act, whether one supports it or not, of discrimination. Conservatives believe she should have such freedom. The problem is that this can only happen when government establishes an exception to a general law and backs that up exception with its enforcement powers. As we have seen, abolishing discrimination requires an active government. What Republicans tend to forget is: So does permitting it.
Here’s another reason why Republicans may come to regret their hasty support for religious rights. Calls for positive liberty nearly always come to support one version or another of affirmative action. It is not difficult to imagine conservative Christians demanding something similar; indeed as they talk about their exclusion from universities and the media, let alone the war directed against them every Christmas, it seems we are already halfway there. Once groups start viewing themselves as helpless victims against unjust tyranny, their burning sense of injustice will know few bounds. No one in America likes affirmative action—except when he benefits from it. Let their anger at perceived victimization fester, and conservative Christians will find the language of diversity perfectly compatible with, as well as a proposed remedy for, their sense of exclusion from top-fight colleges, the senior ranks of the military and major corporations.
The irony in all of this is that conservatives not long ago opposed gay claims by arguing against “special” rights. It was never clear what conservatives meant by that term, but it seemed to imply that gays were demanding rights held by no one else, such as immunity from criticism or rendering “conversion therapy,” efforts by conservatives to “cure” homosexuality, illegal. As recently as this past April, Gov. Bobby Jindal, as if failing to recognize that the conservative script was undergoing serious revision, spoke about gay-friendly New Orleans on “Meet the Press”: “My concern about creating special legal protection is [that] historically in our country, we have only done that in extraordinary circumstances,” he said. “It doesn’t appear to me we are in one of those moments today.”
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