Natural vs. Positive Rights

I like this article by Denny Burk, posted by Dr. Jim Hamilton, Time is running-out (sic) on religious liberty:

However, I’m afraid we Christians and traditionalists have not gone deeply enough in our thinking about the threat to religious liberty. We point to the Supreme Court’s absurd opinion that the only reason to be opposed to same-sex marriage is animus, even a general hatred for humanity, But there’s an even more insidious threat to our religious liberty. By finding a right to same-sex marriage, the Supreme Court essentially declared that all law is positive law, all rights are positive rights.

The word “positive” in this legal context is not the opposite of “negative;’ it is the opposite of “natural.” Some contemporary legal scholars, most Catholic, and our founding fathers have believed in natural law and, even more obviously, natural rights. The Declaration of Independence affirms the colonials’ right to assume the “separate and equal station to which the Laws of Nature and Nature’s God entitle them” and famously asserts every individual’s unalienable rights. The foundation of these rights is something objective: Nature and Nature’s God. Natural law is found law. It is discovered. And, it is as unchangeable as nature is. Positive law, on the other hand, is imposed by someone’s will, whether that’s an individual, an elite, or a consensus among the right kind of people. It is not found; it’s invented. I would argue that some Old Testament laws are natural, while others are positive. Since God rescinded the food laws for His people, we know post hoc that they were positive laws.

Now for anyone to have a right that trumps the will of the majority it must be a natural right; it cannot simply be a positive right conferred by majority opinion. That’s simply a logical contradiction. Yet, if there is any case that seems obviously to contradict nature, it is same-sex marriage. Even an evolutionist, who believes that reproduction is the ultimate goal for every species, must admit that this deviates from the norm of nature. Paul selected homosexuality in his extended argument in Romans 1:26ff precisely because it illuminates our sinful desire to repress what nature teaches us, especially about God but also about morality (v. 32). Paul says the act is “against nature.”

Paradoxically, if there is a right to same-sex marriage then the objective foundation for all rights has been undermined; asserting this one right undermines all minority rights. All rights are now positive rights, malleable, changeable with the the changing consensus among the right kind of people. (This is precisely Alan Dershowitz’s argument in his awful book, Rights from Wrongs: A Secular Theory of the Origin of Rights. He excludes anyone who believes in the supernatural from contributing to the consensus that defines rights. Their views don’t count. He even goes so far as to exclude Thomas Jefferson. I have joked that the consensus ends up being that of a small group of Harvard and Yale law professors.)

So now, given the neglect of the “free expression of religion” clause in the first amendment, we believers are left to the whims of the right kind of people. Our religious liberty is threatened at the most foundational level. Our rights are adrift, though invisibly anchored in Christ. We can expect to be increasingly marginalized by our society. This may turn out to be a good thing for our sanctfication, but be ready.


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