Philosophical basis for rights
The Declaration of Independence gives us a general theory of rights, and the Constitution provides specifics. Liberty is inherent to the individual. So rights are about things that belong to you, such as your views, your chosen path, and your life.
It’s about knowing what’s your and what’s not yours. Your rights don’t belong to those in authority, so protecting your rights means prohibiting the government from doing certain things.
The Bill of Rights stops the government from telling you that you can’t say certain things, that you can’t worship a certain god, or that you can’t own a gun. And the government can’t declare you guilty of a crime unless guilt has been established through due process. The ninth amendment says that your rights are not limited to the ones specifically mentioned in the Constitution. And the fourteenth amendment clarifies that the law protects everyone equally.
In other words, rights are about not taking things away from you. This goes for civil rights too. The Civil Rights Act of 1964 says equal protection under the law means businesses can’t deprive you of equal access to public accommodations because of race, sex, etc.
It’s important to note that the Civil Rights Act doesn’t require businesses to give anyone a job. Instead, civil rights means that if a business chooses to create a job then they must respect each applicant’s equality under the law.
Rights vs entitlements
But saying the government must give you something (or mandate that someone else must give you something) is qualitatively different from saying you can’t be prohibited from doing something. Just because something is an entitlement rather than a right, though, doesn’t mean the government shouldn’t do it. But it does mean that unlike rights, the government doesn’t have to do it.
By entitlement I mean a government benefit, not someone who wants special treatment. Health insurance is a good example. Healthcare is an entitlement, not a right, because healthcare is about what someone gives you.
The government mandating that private companies must provide an insurance product is problematic, though. If the government decides that everyone should have health insurance as an entitlement then it would be more straightforward if the government provided it directly – by giving everyone Medicare, for example.
Because health insurance is not a right, the government can’t prohibit business owners like Hobby Lobby from refusing to provide insurance coverage for birth control, which violates their religious beliefs. It would be different if Hobby Lobby chose to provide insurance that included birth control for some employees. Then equal protection would create a case for giving every employee equal access. But if Hobby Lobby chooses not to provide coverage for birth control to anyone then the government can’t force them to violate their religious principles.
Same sex marriage, on the other hand, is a right. The government can’t stop you from marrying the person you choose. And equal protection under the law reinforces that.
But what about gay wedding cakes? This is a civil rights issue. It’s the baker’s choice to offer services to the general public – the government isn’t mandating that the baker start a business. Refusing to comply with equal access under the law is no different from a restaurant refusing to seat an African-American customer.