Characterizing Rights Exercise

Students practice identifying different kinds of rights (moral, legal, fundamental, special, general, etc.) through a practical example.

Objectives: This exercise aims to allow students to apply knowledge they have gained over the preceding weeks. I wanted to engage students in a discussion about different kinds of rights and see that they understood the criteria we use in making these differentiations. In particular I was interested in stressing the difference between a legal and a moral right. Also, this contemporary example allows students to better understand the ways in which this discussion of rights is relevant.

Characterizing Rights Exercise

We have been discussing different kinds of rights. We have seen that we can characterize a right by asking four basic questions: Is it a legal right or a moral right? Is it fundamental or non-fundamental? Is it positive or negative? Is it special or general?

In the following excerpt, two people are interviewed in relation to the recent repeal of a law that would have allowed gay marriage in the state of Maine. In the next ten minutes, please read the passage below and answer the questions that follow. Once you are finished, we will discuss your answers as a group.

Maine Gay Marriage Law Repealed

Voters Narrowly Approve Measure, Dealing Blow To Same-Sex Couples

By DEVIN DWYER

ABC News

Nov. 4, 2009

[…]

Voters rejected a state law Tuesday that would have allowed same-sex couples to wed. The repeal comes just six months after the measure was passed by the Maine legislature and signed by the Democratic Gov. John Baldacci.

[…]

Ellen Sanford McDaniel, 35, of Fairfield, Maine, said she's relieved the referendum passed, rejecting gay marriage. "I don't feel anybody has the right to redefine marriage," she said. "I would have been heartbroken for our country if it did not pass... We had a prayer night last night for it to go the way it should."

But gay marriage supporters, like Carole Cheeseman Russo, 65, of Carmel, Maine, says this vote likely won't be the last on the matter.

"No one in my family is gay – at least that I'm aware of -- but I just don't think anyone has the right to tell someone who they're allowed to love or who their allowed to marry," she said. "[Same-sex marriage] has just got to come back."

Questions

1. Both McDaniel and Cheeseman Russo use the term “right” in their statements. What kind of right (legal/moral, fundamental/non-fundamental, positive/negative, special/general) is each evoking?

2. What related or possibly competing right is at play?

3. What are the fundamental rights at stake in this issue in general?

Activity: I began the session with a general discussion of the criteria for differentiating between rights. For example, I asked the students what the difference was between a moral and a legal right. I wrote brief definitions on the board. After explaining the exercise and giving students ample time to complete the questions, I took the answers to the questions up in class. I prepared sample answers and questions to facilitate discussion.

McDaniel

“I don't feel anybody has the right to redefine marriage.”

If no one has it: Moral right, fundamental, positive, general (i.e. only God has it) – not a human right!

If we can be said to have it, then it is a legal right, special, non-fundamental, positive. But who has it? The government? The citizens? The judiciary?

Related rights: There could be a negative right to not have my definition of marriage changed or corrupted. What kind of right is this? Is it a moral right such as freedom of religion? Or is it a legal right?

Follow-up question: If freedom of religion is evoked here, who is said to have this right? The Church and/or the congregation, or gays? The Church only has special rights. Freedom of religion would allow gays to found a religion in which they marry. The issue is not that the Church has to perform gay marriage, but that the government must allow it and recognize it.

Cheeseman Russo

“The right to tell someone who they're allowed to love or who their allowed to marry.”

Technically, the right being discussed is a ‘right to tell someone something’. Because Cheeseman Russo sees this right as not existing, we can assume that she recognizes two rights as existing:

1. A right to love whom I choose: negative, moral, fundamental (?), general – a human right.

2. A right to marry whom I choose:

Within a church I have a non-legal, special, positive, non-fundamental right; God has a moral, positive, general, (non)fundamental right – God has rights and we have obligations, and although we have rights they do not bind God in obligation.

I have a positive right to marry whom I choose, and the state has a special, legal obligation to marry me. Is this a human right? No, but equal treatment under the law might be. So, if there is a law that people can marry whom they choose, then having access to this legal right is a human right. Further, marriage grants access to benefits to which citizens have an equal right (moral, positive, fundamental, general).

Question: Is equal access to treatment under the law a human right? Or is it a special right, because I need to be a part of this state? How is this different for positive and negative rights? Example should non-citizens fall under the Charter? Should they get free education and health care? What about refugees or illegal immigrants?

Question: Why do you think that there is a difference between the legislature’s and judiciary’s decisions and those made by the public?

Assessment: This exercise was successful insofar as it gave me a clearer idea of how few of my students had a good understanding of the terminology we had been using in class. The review at the beginning of the class did help students to better grasp the concepts (moral, legal, fundamental, etc.). However, it was clear that few of them had had a good understanding before our discussion. Having gained a better understanding, it was helpful for students to apply this knowledge. The discussion that followed allowed students to ask questions about points they had found difficult. Also, the concrete examples facilitated a more in-depth discussion of the various criteria.