The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
Human rights are not always the best prism through which to view our responsibilities in the world we live in. This is so because what you have a right to do and what is right to do is not always the same thing. In other words, a Bill of Rights does not contain a complete set of ethical rules that can guide us on how to live a virtuous or ethically responsible life.
In political arguments the right to do something is often conflated with whether it is right to do it.
So, when an artist produces a controversial work of art, some of the defenders of the artists will argue that the artist has a right to artistic freedom and that any criticism of the artists therefore amounts to an attempt to censor the artist. Conversely, some of those who believe the work of art reflects racist, sexist or homophobic sentiments will argue that the artist had no right to produce the work of art and that the work of art should thus be destroyed or the artist should be prohibited from exhibiting it.
Instead of engaging in a discussion about the merits of the work of art, of its political intent or effect, or of whether it was ethically defensible for a museum to exhibit it at all, some people will invoke artistic freedom to defend the artist and his or her work while others will invoke the rights of those wounded by the work of art to argue in favour of censoring the work of art.
A political or ethical disagreement becomes a fight about rights and an opportunity is lost to engage meaningfully with each other about the disagreement at hand.
But this juridification of political and ethical disagreements is not the main reason why it is wrong categorically to state that no one should assert their rights while trampling on the rights of others.
Instead, the heart of the problem is that rights often clash with one another and it is therefore not always possible to respect all rights equally at the same time. Sometimes the very essence of your right will encompass the “right” to trample on the rights of others. Depending on the rights involved and the context in which they are being exercised, one right must give way to another.
For example, the right to freedom of religion will often clash with the right to equality. When the Catholic Church asserts its right to appoint only heterosexual, male priests, it asserts the right to discriminate against women, gay men and lesbians. Either the right to freedom of religion must give way to the right to equality, or the Catholic Church must be permitted to trample on the rights of a majority of citizens.
Similarly, the right to freedom of association will often clash with the right to equality. When the owner of a Bed and Breakfast or a holiday resort asserts her right not to open the doors of the establishment to black people or to gay men or lesbians, this will trample on the rights of black people or gays and lesbians. In such a case, it is impossible to respect the right to equality and the right to freedom of association at the same time. One right must trump the other. There is no other way out.
Moreover, the right to freedom of expression will often clash with the right to dignity. If you call somebody dishonest, or question his or her intellect, or claim that he or she is a pervert, it may well infringe on the dignity of the person you have insulted in this manner. Either your right to free expression must give way and you must be prohibited from making such a statement (even if possibly true and even if making the statement may be in the public interest) or the other person’s right to dignity must give way to your superior right to freedom of expression.
These examples illustrate that in some cases you will have no choice but to trample on the rights of others in order to assert your own rights. In such cases a claim that somebody should not trample on your rights when he or she asserts his or her own rights is no more than a claim that your rights should trump theirs. When a politician makes such a claim it will often sound suspiciously like he or she believes his or her rights should trump the rights of ordinary citizens.
Sometimes the text of a Bill of Rights would give an indication which of the clashing rights should be upheld. But when it does not, difficult questions arise.
Why should the right of religious organisations to discriminate trump the rights of citizens not to be discriminated against? Why should the right to equality trump the right of racists, sexists and homophobes to associate with whom they wish? Why should the right of citizens to be kept informed about the nefarious doings of politicians or powerful businessmen and women trump the right of the politician or businessman or woman to have his or her dignity respected?
The court sometimes answers these questions in favour of one group because the views of that group is widely accepted or because of the overwhelming political power and influence of the group. As Justice Sachs pointed out the Prince v Law Society of South Africa when explaining why the religious practices of dominant religious groups are often upheld even when it infringes on the rights of others:
all over the world religiously motivated circumcision of infant boys has survived even the most stringent of child protection laws. Powerful religious organisations support it and it has become an everyday and accepted part of the social scene. This suggests that what matters is not the intrinsic nature of the act, but the degree of official acceptance of the actors.
Sometimes the court answers the question by looking at the aim to be achieved by the right and by asking how important this aim is for society as a whole. For example, in open and democratic societies the dignity of politicians will almost always yield before the right of citizens accurately to be kept informed about matters in the public interest. Freedom of expression is pivotal for the safeguarding of democracy and where politicians are allowed to invoke their right to dignity to protect them against criticism and against the exposure of wrongdoing, the quality of the democracy will be fatally compromised.
Lastly, the court sometimes answers to question with reference to the particular history of a country and political context in which rights are asserted. For example, given South Africa’s colonial and Apartheid past, its history of gender discrimination and its past vilification and marginalisation of sexual minorities, the right to equality will usually trump the right to freedom of association. This means that the court will almost always reject the claim by the owner of a Bed and Breakfast that his or her right to freedom of association should trump the rights of citizens not to be discriminated against based on race, sex or sexual orientation.
Of course, it is important to note that in some cases the claim that you are trampling on the rights of an elected politician by asserting your own rights is itself spurious. When you criticise a an elected representative (especially one holding high office) for not doing his or her job; when you ask difficult questions about that person’s conduct; when you demand that the person obeys the law, you are not infringing on his or her rights. What you are doing is engaging in democratic debate and contestation.
In such cases, the argument that no one should assert their rights while trampling on the rights of others becomes a plea to be excused from being held accountable by the voters who elected you.