Quick—what’s the difference between civil liberties and civil rights?
If you aren’t quite certain, you have a lot of company. The distinction is lost on most of my students, and—far more troubling—on a good number of city and state legislators.
Civil liberties are rights that individuals have against government. Citizens of the new United States refused to ratify the Constitution unless a Bill of Rights was added, specifically protecting them against official infringements of their “inalienable rights.” Among our civil liberties are the right to free expression, the right to worship (or not) as we choose, and the right to be free from unreasonable searches and seizures. After the civil war, the Fourteenth Amendment added the Equal Protection Clause, prohibiting government from treating equally situated citizens unequally. The Fourteenth Amendment also applied the provisions of the Bill of Rights to all levels of government—not just the federal government, as was originally the case, but also to state and local government agencies.
Only the government can violate your civil liberties.
Civil rights took a lot longer, and were a lot more controversial. It was 1964 before Congress passed the Civil Rights Act. Civil rights laws protect people against private acts of discrimination—discrimination in employment, in housing or education. The original Civil Rights Act applied to businesses engaged in interstate commerce—businesses that held themselves out to be “public accommodations” but were, shall we say, “selective” about which segments of the public they were willing to accommodate. State and local civil rights acts followed. Civil rights laws generally include a list of characteristics that cannot be used to favor some people over others: race, religion, gender, and so forth.
There was a lot of resistance to civil rights laws, and there is still a widespread, if covert, attitude of “What business does government have telling me I can’t discriminate?” That resentment has redoubled as new groups have lobbied for protection.
The fiercest resistance has come from people opposed to extending civil rights to gays and lesbians. Those opponents have taken advantage of the widespread confusion of civil liberties with civil rights to argue that the Fourteenth Amendment already protects gays, so amending Indiana’s civil rights law, or Marion County’s Human Relations Ordinance is unnecessary. (After all, that’s easier than taking a public position that “those people” don’t deserve equal civil rights.)
I remember the astonishment of one of my African-American students when she realized that, in Indiana, people can be fired just because they are gay. “There is still a lot of discrimination against black people,” she said, “but at least there are laws on the books! They may not always work, but they’re something.”
A few months ago, the Indianapolis City-County Council failed to pass a measure that would have made discrimination on the basis of sexual orientation a violation of the City’s Human Relations Ordinance. Several of those voting against it said it was “unnecessary” because the Fourteenth Amendment already protected gays.
They knew better.