When Policy Preferences Masquerade as Rights

Recently, I took my son swimming at a local rec center. Entering the men’s locker room, we encountered a sign: “Children over 6 must use the appropriate locker room.”

For a moment, I was tempted to speed dial the ACLU and Human Rights Watch to roust some federal judge that Sunday morning who could save me from unconstitutionally ambiguous language. What, after all, was “appropriate?”

In an earlier and saner age, the answer would be self-evident. But that was before sanity was deemed “intolerant.”

So, in today’s brave new world, is “appropriate” whatever the individual entering the locker room thinks? And does no one else have a say in the accuracy of that self-determination even though, in a locker room—to borrow a Biblical phrase—“all will be revealed”? Or do the other users of the locker room have no privacy rights of their own, bound in the name of “tolerance” if not of “rights” to acquiesce in each user’s self-assessment of “appropriate”? Even if it is wrong? Or can it just not be wrong?

In other words, why is a simple sign that ordinary people would understand in one way legally subject to ambiguous, even erroneous interpretation?

Part of the reason, I suggest, derives from a phenomenon I call “‘rights’ freeloading.”

Harvard professor Mary Ann Glendon coined the expression “rights talk” to describe the tendency to expand and overinflate the discussion of policy options by rebranding those choices as “rights.” Paradoxically, such rebranding serves to shut down discussion, because one can debate policy but “rights” demand recognition. People of good will can hold different positions on policy choices, but being against a “right” is like being against motherhood, baseball, or apple pie.

Which is, of course, true. But not everything that calls itself a “right” is a right, and the opportunity for rights freeloading—for policy decisions to masquerade as rights—offers many benefits while abetting intellectual sloppiness and dishonesty. I say that because, once upon a time, a first-year logic student would have recognized the logical errors of begging the question and proof by assertion.

That’s why “rights freeloading” has grown in recent decades, and why those prone to spin new “rights” out of whole cloth usually pursue their artifice in the judiciary rather than the legislature. The latter suggests there are two legitimate views to a question; the courts give us winners and losers.

The problem with such tactics, besides demonizing the loser, is that it also tends to fossilize the discussion: a legislative choice, once adopted, can be undone at the next election. A judicial decision, once enshrined, is practically permanent and accountable to no one.

Finally, ersatz “rights” tend to displace real ones. Glendon shows us the problems of “rights creep,” i.e., the elevation of policy choices to the status of rights. If Gresham’s famous law reminds us that “bad money drives out good,” so—applying Glendon’s insights—I offer Grondelski’s Corollary: “‘rights’ tend to drive out rights.” Consider the track record on abortion: fathers have no right (no “interest,” as the courts put it) in the survival of their unborn children; parents have no rights to prevent their minor daughter from obtaining an abortion without their consent or even in some cases knowledge. Now, on “transgender rights,” other users of a public shower, locker room, and/or bathroom are told they have no rights to a truly single sex environment. On homosexual “marriage,” others have no right to decline to apply their professional talents or services to solemnize what they find ethically or morally wrong; conscience rights are subordinated to state power. Catholic social services are increasingly being driven out of the adoption arena because they have the silly, intolerant notion that a child to be adopted (i.e., a child who has already been objectively hurt by deprivation of a father and mother) has no inherent right to be adopted by a father and a mother.

Glendon illustrated how “rights talk” worked in her book, Divorce and Abortion in the Western World. One of her arguments for why abortion remains so contentious in the United States, in contrast to Europe, is that Roe transmogrified abortion into an Über-Recht that trumps the least attempt to restrain it at any point during the nine months of pregnancy. In Europe, the countries which legalized abortion in the 1970s did so by acts of their parliaments, and none as limitlessly as the regime Roe imposed by “raw judicial power.”

Another good example is the path to homosexual “marriage,” which at first involved efforts to create legislatively parallel “civil unions” before the lawyers went full court press to discover a Constitutional “right” to something that was a crime in many of the states that ratified the Fifth and Fourteenth Amendments, the text where the purported right might reside. As long as legislatures were involved, a few adopted the new norm and, for those that did, their citizens generally employed initiative and referendum to overrule them. The track record of the new “right” by plebiscite was decidedly poor. So, instead, let’s call the policy choice a “right” and find five Supreme Court justices to agree. First Things properly characterized this whole phenomenon as the “judicial usurpation of politics.”

The same drumbeat now exists for “transgender rights.”

Just after the Departments of Justice and Education rescinded the Obama administration’s distortions of Title IX, which asserted that boy’s and girl’s locker rooms/showers/bathrooms being used exclusively by boys and girls respectively was “discriminatory,” the New York Times launched into a week-long screed about the alleged rights violations just waiting to break out (here, here, and here).

There is, of course, no evidence that the Congress which enacted Title IX in 1972 intended the statute, which bars discrimination based on “sex” (a biological fact), to treat “sex” as a state of mind. No matter: what the people’s representatives voted for can readily be adjusted by the permanent bureaucracy, elected by nobody, providing interpretive “guidance” on the law.

An honest debate would ask whether the category of “gender,” which the 92nd Congress certainly did not enact in 1972, has anything to do with “sex,” the category Congress did incorporate into the law. It is not enough to say that today’s cognoscenti have decided to equate them: nobody elected the editorial board of the Washington Post to anything.

But if you can perform that feat of legerdemain and impose new legal duties by fiat, then it’s but a small step to claiming that a “right” has been violated. Voilà!—we suddenly have a new fundamental “right” to which everyone (including men who do not want other “men” with vaginas in their shower room or women who do not want “women” with penises in their locker room) must forego their own rights and yield.

But there is no honest debate here.

There is, instead, an attempt to smuggle one’s position in under the guise of a “right” whose existence is asserted but hardly proven. Consider another interesting piece from a local newspaper.

The editorialist of the Falls Church News Press reported the case of high school senior John Piper. Piper, who attends school in neighboring Arlington, dissented from the decision of a group of teachers who posted “colorfully printed sign[s] listing seven values they considered inarguable.” The septet included: “Women’s rights are human rights; justice is for all; we’re all immigrants; kindness is everything; We are Yorktown.”

No one could, of course, dispute the most superficial reading of these nostrums. But everybody knows that we are not supposed to read them superficially. Of course, “women’s rights are human rights.” But nobody really thinks that the Yorktown faculty were attacking Aristotle for his theory of the “misbegotten male.” Their line was clearly intended to smuggle in an endorsement of abortion, whose “right” status seems pretty clearly in dispute even 44 years after Roe. Likewise, “justice is for all” is indisputable, but justice demands “giving each his due.” Treating men as women, women as men, men and women as androgynous, and biological persons as merely states of consciousness is manifestly not giving each his due. In fact, it denies what is his due. I really don’t think the Yorktown faculty undertook any real discussion of what is due to real sexual human beings (whose sexuality is a biological fact) over psychological states of mind. Finally, of course, “we are all immigrants,” but why would that shibboleth have any relevance to the distinction of whether an immigrant is legal or illegal and, therefore, what is consequently due him?

Piper, who could get no satisfaction from the school which, of course, retreated to procedural formalities to justify the teachers’ “opportunity to learn” (scil. propagandize) decided instead to commit a real faux pas: he exposed the sloganeering on national television. He thought students have a right to an apolitical school.

Catholics have a vested interest in opposing rights freeloading, because under the guise of “rights” a whole worldview is being imported from which any Jew, Catholic, Orthodox, or Protestant faithful to his tradition must dissent. This entire “rights” project in fact seeks to co-opt people: Casey told us 25 years ago, in an amazing piece of judicial chutzpah, that pro-life Americans should shut up and go home because the Court has spoken: curia locuta, causa finita. (The Court apparently did not learn from its own experience with Dred Scott that the last word belongs to “we, the people,” not “we, the court.”)

These issues very much go to the heart of the debate over the kind of jurisprudence that Supreme Court nominees should apply, as well as to the practical outcome of policy-debates-masqueraded-as-“rights”-fights headed for the Supreme Court, especially in the areas of the right to life, marriage, child raising, education, conscience, religious freedom, and the rights of civil society to act on its moral and religious convictions in the public forum. The first step, however, depends on ensuring that we are clear about what is policy and what are rights—and not let the former get confused with the latter.