Commentary

Sorting Out Rights

This article appeared in the San Francisco Examiner on April 12,2005.

Strange bedfellows Sens. Rick Santorum, Hillary Rodham Clinton and John Kerry have introduced a bill in Congress that would require employers to accommodate religious employees. “No American should have to face the choice between practicing their faith or working at their job. It’s that simple,” said Kerry.

Meanwhile, some California legislators want to require pharmacists to dispense all lawful drugs, even if they have moral objections to birth control or to “morning-after pills,” which some people consider a form of abortion.

What happens if Congress passes the Workplace Religious Freedom Act and California passes a law requiring pharmacists to fill prescriptions? In that case, a California pharmacist would apparently have both a right to exercise his moral beliefs in doing his job and a legal obligation to fill prescriptions even if they violate his conscience. So which is it? Does he get punished for not giving out the prescription, or do his employers get punished if they require him to fill the prescription to keep his job?

That is the problem with many of the new “rights” that legislatures like to hand out. A system of rights tells us what we may and may not do. Under the traditional theory of rights, as embraced by the founders of this country, every person has a right to “life, liberty and the pursuit of happiness.” Every right imposes a corresponding duty on others: If you have a right to property, that means that I can’t take your property. If I have a right to free speech, then you can’t forcibly prevent me from speaking.

But when people talk about a “right” to education, or a job, what is the duty imposed on others? In those cases, it would have to be the duty to supply education, or a job. That is, if I have a right to education, then you have a duty to supply it (or to pay for it). Otherwise, it’s no right.

And that means that my “right” to education comes into conflict with your right to spend your money the way you choose.

The problem is even more obvious with the rights that people want to give to both employees and customers. If the pharmacist has a right not to violate her conscience, then the customer can’t have a right to have her prescription filled by that pharmacist.

We need a system of law that sorts out the rights and duties of employees, employers and customers. Fortunately, we have one. It’s called the free market and contract law.

Employees — such as pharmacists — decide what career to follow and where to look for a job. Employers — such as drugstore chains — decide what the rules are for people who choose to work in their pharmacies. And customers look for businesses that give them the services they want. No one is forced to do business with any other person, no one is forced to violate his conscience, no one can force others to do business on his terms.

With sensible rules like that, we could have many fewer laws. We wouldn’t have laws guaranteeing pharmacy employees the right to exercise their conscience in defiance of their employers, or laws requiring pharmacists to violate their own consciences when customers demand it. We would have a simple set of rules that create harmony rather than conflict, and that allow all to act according to their own consciences.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.