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Civil rights, not human rights

March 4, 2014

When a group of activists declared the campaign for gay rights to be “the new civil rights movement”, they were expressing an approach to the subject that is at variance in practice with the terms in which that approach is sometimes explained.  There is a very significant difference between civil rights and human rights, yet gay rights campaigners use the two phrases almost interchangeably.  This is misleading, as only one of those phrases properly applies to their goals and efforts.

There are two models for understanding and studying the subject of human rights with regard to their origins, which may be called the American model and the French model, respectively.  The American model was initially defined by the United States’s Declaration of Independence.  It states that human rights are organic: “We hold these truths to be self-evident, that all Men are created equal, that they that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”  In other words, human rights are inherent – they are acquired automatically by human beings by virtue of their humanity.  As the full text of the Declaration makes clear, human rights are also sufficient to override the rights of human-constituted authority structures.  What humans can create, they can also take away.

Compare this language with that of the Declaration of the Rights of Man and the Citizen, proclaimed by the National Assembly of France thirteen years after the United States declared its independence and received French support for its adventure in liberty.  According to the French Declaration, “the exercise of the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights. These borders can be determined only by the law.”  Here, rights are not absolute, but are limited by the law in the interests of the community.  Similarly, “no one may be disturbed for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law.”  So, under the French model, an opinion which does disturb public order may legitimately be suppressed.  And again: “Property being an inviolable and sacred right, no one can be deprived of private usage, if it is not when the public necessity, legally noted, evidently requires it.”  Public necessity and the common interest – which the Declaration itself defines as identical with the law (Article VI) – can override individual rights at any time, because individual rights are not absolute.  In the American model, rights are above the law, and it is only when they are voluntarily not exercised that the law is created.  In the French model, rights emanate solely from the law, which creates them by defining their boundaries.  The American text is an expression of human rights, grounded in the fact of human existence; the French text is an expression of civil rights, grounded in the laws handed down by a civil government.

Because the goal of the gay rights movement as a whole is to gain recognition, protection, and inclusion from the state, its activities are most accurately classed as an exercise in civil rights.  In debates on gay marriage, the question of whether human beings have an inherent right to marry as they please is never raised.  Instead, the sole topic under discussion is how to secure legal permission for and recognition of same-sex marriages.  Certainly there have been no widespread cases of such marriages being contracted in defiance of the law as a form of civil disobedience aimed at asserting an inviolable human right.  This suggest that gay rights crusaders do not want to change the structure of the society in which they live to make it more permissive or inclusive overall; they merely want their particular group to be fully integrated into that society.  They do not want to demolish barriers; they would prefer to retain those that already exist, albeit with certain adjustments.  They even seem to share with their opponents the desire to continue excluding other groups from full participation in society, perhaps as a means of demonstrating common values and the reasonableness of their requests.  Such behavior is not suggestive of a deeply-held belief in inherent human rights.

The nobility of striving by legal means to gain full civil rights is a theme that is deeply entrenched in the culture of the United States, but it is not the same thing as asserting absolute human rights that already exist.  The two actions are mutually exclusive and should not be confused.  The phrases denoting them should not be, either.

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