Positive Rights vs. Negative Rights

By Stephen Richer

We’ve written about the Elane Photography case a good bit on this site.  It’s an instructive case for why the Republican Party needs to play a part in gay equality: so the progressives don’t pass a whole host of gay equality positive right laws that trump well-established civil and economic liberties.

Witness the ACLU, one of the country’s most adorably inconsistent supporter of negative liberties.  In the Elane Photography case, the ACLU turned its back on two important Constitutionally protected civil liberties: the right to free expression/speech (choosing whom and what to photograph) and the right to free exercise of religion (including not being forced to do something that directly contradicts your religion when it is not critical to the state).  Instead, the ACLU sided with the newly created positive right: gay Americans should be able to employ the services of any Americans they want.

This neat, yet inconsistent and unreasonable, little maneuvering of the ACLU is the subject of a recent column by New York Times Supreme Court reporter Adam Liptak as well as a post by Walter Olson of the Cato Institute.  In Olson’s words:

The ACLU of all groups should have no reason to see this as a “difficult choice” or as a conflict of constitutional values. Free speech and expression rights, which extend to the right not to engage in expression on behalf of a cause one deplores, are central constitutional values and the ACLU is the very first organization people turn to to defend them. Equal treatment of gay couples by private actors, on the other hand (as distinct from by the government itself) has no clear status as a constitutional value at all.

Shame on the ACLU for selling out civil liberties principle in favor of its current notions of civil rights. As Jacob Sullum points out, if it “cannot bring itself to stand up for Huguenin’s rights, it should at least have the decency to sit this one out.” In the mean time, it would do well to adopt some new and changed name on its letterhead, such as American Civil Rights Union.

If left unchecked, the progressive left will create a whole host of new positive-rights laws like New Mexico’s Human Rights Act (which led the New Mexico Supreme Court to rule against Elane Photography).  Republicans need to get on board now to ensure that gay Americans are granted equality under the law, but not at the expense of the well-established liberties of other Americans.

(Elane Photography has filed for cert in the Supreme Court — November 8, 2013)

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2 thoughts on “Positive Rights vs. Negative Rights

  1. Pingback: ACLU on wrong side of wedding photographer case - Overlawyered

  2. Pingback: The ACLU’s inconsistent view on antigay speech | The Purple Elephant

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