What exactly is a “civil right?” What is a “civil liberty?” Are they synonymous? To the average American, the term “civil rights” conjures up images of the Jim Crow south, Rosa Parks, the Montgomery bus boycott, James Meredith’s integration of the University of Mississippi, Martin Luther King, Jr.’s March on Washington, the Edmund Pettus Bridge, and the Freedom Riders in Mississippi, among other historic events of the 1950’s and 60’s. Indeed, these are some of the most iconic events in modern U.S. history. They are also among the most important events in the modern civil rights movement. The legal area known as “civil rights” has traditionally revolved around the basic right to be free from unequal treatment based on certain protected characteristics such as race, gender or disability, etc., in settings such as employment and housing. The term “civil rights” emphasizes the individual’s rights as a citizen to participate freely and equally in politics and public affairs in order to actively promote his or her preferred public policy alternatives through lobbying policy-makers and/or through personal participation in the electoral process. The term “civil liberties” generally refers more specifically to the protection of the individual’s rights to form and express his or her own preferences or convictions and to act freely upon them in the private sphere without undue or intrusive interference by the government. So there is a distinction to be made between “civil rights,” i.e., the basic right to be free from unequal treatment, based on certain characteristics which we deem important, like race, gender, and disability, and “civil liberties,” which are basic freedoms guaranteed by the Bill of Rights or interpreted through the years by courts and lawmakers. Examples of “civil liberties” include: • Freedom of Speech • Freedom of the Press • Freedom of peaceful assembly • Freedom of Religion • Right to bear arms • Right to Privacy • Right to be free from unreasonable searches and seizures of property • Right to a jury trial • Right to travel freely • Right to be free from self-incrimination • Right to marry • Freedom from cruel and unusual punishments • Right to legal counsel • Right to vote Some of these rights are directly stated in the Bill of Rights or subsequent amendments, while others were developed over the course of years, decades or centuries of case law. Civil liberties are freedoms that are due every individual, simply based on the fact that they are human beings. The Declaration of Independence asserts the creed of the American people, as it declares that all men are endowed with certain inalienable rights, such as life, liberty, and the pursuit of happiness. Civil liberties are not gifted by governmental action – they are rights of birth. The government cannot take away or change these rights by making or eliminating legislation. So an essential difference between civil rights and civil liberties revolves around who is being affected and what right is being affected. We generally consider the birth of modern civil rights as somewhere on or about the mid-twentieth century, when our nation experienced the growing pains of setting on a path from the then normalcy of segregation to a nation where all of its citizens could have equal opportunities in education, housing, employment and socio-economics. The birth of civil liberties in our nation can be found in the very birth of the nation. In fact, the original colonists to the “new world” were motivated in part by a search for civil liberties. One of the most essential of these civil liberties, the one you could in fact call the original civil liberty, was the right to the freedom of religion. The purpose of this article is to articulate and illuminate the legal and cultural reasons for the original protections of religious freedom and the heightened necessity we now face to create a force field around these rights, as we enter into a period of deep geopolitical unrest and a predictable conflict and controversy between diverse faiths – a diversity that is often highlighted by ethnic differences and myopic nationalism. Ultimately, the article calls for a renewed vigilance by those who respect the foundation on which our nation was built, that of respect for the individual’s right to choose if, when, and how they worship – without interference from, or coercion of government forces.
61 How. L.J. 147 (2017)