Some thinking. . . always dangerous -- seldom profound

The Indiana RFRA has certainly stirred up the pot.  Ever careful not to stir it up anymore, the Roman Catholic Bishops of Indiana weighed on with a predictable call to patience, calm, and respectful dialogue.  In other words, they said little except that by the end of their pastoral letter we could hear their sigh of relief expecting that they had successfully maneuvered through the mine field without causing more collateral damage.  You read it and see what if my characterization is fair.

One particular sentence stuck out at me.  The rights of a person should never be used inappropriately in order to deny the rights of another.  At first glance it appears to be a salutary truth but in reality it is a lie.  The rights of a person inevitably infringes upon the rights of another.  It is always that way.  Ours is not a nation in which every person enjoys absolute protection of their rights from the rights of another.  It is a nation in which certain rights have a guarantee of protection while other rights have a less solid claim before the law.  It is impossible for us to guarantee all rights to all without the exercise of those rights in some way infringing upon another.  In essence, our constitution and bill of rights has chosen carefully which rights have constitutional protection and which may not enjoy the same status.  Of course that has become a bit more muddled since the Supreme Court starting inventing rights not explicitly spelled out in either the constitution or its accompanying amendments.

Certain rights have explicit protection under the constitution and the bill of rights.  Among them is free speech (originally more seen as political speech but now generally given much freer reign).  With free speech is the freedom of religion -- not simply the right to worship without interference but the freedom of religion.  While government cannot establish one religion, it cannot abridge the free exercise of religion either.  Even these are not absolute and the SCOTUS has drawn a few lines in the sand to prevent this from being an absolute right.  The court has said that the state can restrict or constrain this right for a compelling reason but this is not to be taken lightly or treated casually.

Other rights which enjoy general acceptance among the populace are, nonetheless, not explicitly mentioned and therefore do not have the same claim to legitimacy as one of the guaranteed freedoms -- like freedom of religion.  You may think you have a right to marry whom you choose or to have sex with whomever you choose and however you choose but none of these are either explicit or implicit in the constitution.  At the time of the abortion decision, the court began reading into the constitution certain rights not explicitly mentioned but presumed to the modern day mind.  Among them the right of privacy which says that you can do what you want, with whom you want, when you want, behind closed doors and consensually.  And this has become the right that is wagging the tail of the constitutional horse today.

I am not suggesting that the government hide in your bedroom but simply pointing out that the freedom of religion is not something we read into the constitution but an explicitly mentioned and guaranteed right.  Maybe you think we need to rewrite the constitution (I am not in favor of it but it seems that the courts have done a pretty good job doing that without much of a mandate or authority from the people).  Maybe you disagree with the way the constitution is written (even our government does not think it salutary enough to be used as a model for fledgling democracies).  All I am saying is that if you have a beef with the Religious Freedom Restoration Acts dating from 1993 federally and passed at different times on the state level in most states, then you probably have a beef with the constitution and what is explicitly protected and what is not.

In the meantime, there is no possibility that freedoms can be guaranteed or protected without finding places and times and people who will have certain rights constrained in order to protect others our constitution considers more basic and essential.  The bishops are wrong.  We cannot have it all ways.  Certain rights will trump other rights.  We may not like it and it may offend us, our values, and our lifestyles, but it is simply the way it is.  Period. 

If you have read me before, you know that I consider democracy very messy, unpredictable, tedious, and fraught with problems.  It is probably the best we can do this side of glory (although I harbor the suspicion that a benevolent monarchy with the right king or queen is more efficient and effective).  Democracy is imperfect and it structures an imperfect people in search of a more perfect union.  But rights will continue to be traded off against each other.  There is no other way.  All I am saying is that explicitly mentioned protections and rights trump the others.  In this case, religious freedom is one of those in the upper hierarchy of values for which our founding fathers choose to write in constitutional protections.