Bryan McGraw has a good post at The Federalist on the future of religious liberty. He’s more pessimistic than I am about some aspects of the situation, but he points us back to an important philosophical question that precedes how we think about religious liberty issues. Are our rights “compossible”?
Implicit in many of the strong denunciations of the Arizona bill (and other similarly structured efforts) is the belief in compossibility: if you think that it is morally impermissible for people to discriminate on the basis of sexual orientation, it won’t really matter that laws that follow this sort of moral claim will tread on religious liberty rights. Our rights here are of a piece and if we think we perceive a conflict among them, we are in fact mistaken and should adjust our perceptions forthwith.
It does no good, then, for those looking to protect the consciences of religious believers in these sorts of cases to simply advert to claims for “religious liberty” and expect the argument will carry through. Religious rights, like any other right, are not absolute—as Bill Galston has been wont to say, there’s no religious liberty for (human sacrificing) Aztecs—and for those who are looking to shift our society’s conceptions here, they will merely cry “discrimination” and let loose the lawsuits. The fact that such a move might have pernicious effects on other liberties they value won’t occur to them until long after this fight is done…
Things in this regard do and should look bleak for religious conservatives, but only so long as we are playing on the field of compossibility, so to speak. Fortunately, compossibility is not actually true—our rights do not all fit together in one neat package and claims in favor of one person or group sometimes means a loss for others.
I would add that it is not only opponents of laws like the one that was vetoed in Arizona who presuppose the “compossibility” of rights. Most advocates also presuppose this.
Indeed, they presuppose it more strongly than their opponents, because the compossibility of rights is the whole reason they view things like the wedding-cake case or the HHS contraception mandate as ominous portents. I have seen many people ask: How could you possibly think that your religious liberty is at risk because a tiny group of people (religiously scrupulous business owners) are encountering this challenge? No one is contemplating barging into your office and ripping the crucifix off your cubicle wall. Didn’t the business owners put themselves in a position to encounter this sort of difficulty when they decided to operate a “public accommodation” in a pluralistic society? So aren’t they the only ones at risk? If rights are not compossible, this line of reasoning might make some sense. But if rights are compossible, the right to order businesses to do these things implies a huge contraction of religious liberty rights that has much larger implications.
So if McGraw is correct that rights are not compossible, we have less to worry about than we might think we do. But is he correct?
I think there are two different senses in which we might ask the question “are rights compossible?” If we ask the question philosophically, we are really asking “are rights in principle compossible, such that any time two people make rights claims that imply conflicting accounts of rights, we know that at least one of them must be wrong?” In this sense I think rights are compossible.
What is a right, in principle? You may take Thomas Hobbes’ view and say that a “right” is nothing more than an assertion of privilege with no basis other than your own self-interest. In that case, rights are clearly not compossible. But if you take the view that has predominated from the high Middle Ages onward in both Christian and non-Christian philosophy, a “right” is a claim that it would be morally wrong for someone to do something to you. You rights are correlative to other people’s duties, and their rights to your duties. If we take this view, when we ask if rights are compossible we are really asking if all human moral obligations are compossible. Could the same thing both be required and forbidden in an ultimate moral sense – by God, or the natural law, or the categorical imperative, etc.? I say no, and I don’t see how you do any sound moral reasoning without that presupposition.
But we might ask “are rights compossible?” in a functional sense. In this case, we are really asking “are rights as we are able to recognize them in practice by law and policy compossible, such that if any two people make rights claims that imply conflicting accounts of rights, we know that law and policy cannot accommodate both?” In this sense I see no reason why rights need to be compossible. As I have argued:
All the arguments that compromise is impossible seem to rest on the presumption that America will inevitably be forced to adopt a neat and tidy marriage policy that is logically consistent, morally justifiable and produces no absurd and contradictory outcomes. I would love to live in such a world, but as a practical matter I see no grounds for the presumption that we actually do live in such a world. “But when such-and-such happens, government will be forced to choose where it stands on such-and-such.” No, it won’t. Politicians and lawyers (including judges) are actually pretty good at having their cake and eating it too. The end result of the conflict over marriage may not be a tidy, coherent policy that makes sense and is morally justifiable. In fact, I’d place a long bet that it won’t be.
I’m not sure which sense McGraw has in mind when he says rights are not compossible. However, most of his analysis is centered on what we can expect to happen in the near future rather than on what the ideal religious liberty policy would look like, so in terms of his larger point – don’t panic, the world is messy and the rejection of this law doesn’t imply that these rights won’t be protected going forward – I agree.