Check out this article written by Dr. John Corvino on the notion that the God of the Bible grants unalienable rights, and its corresponding implications. In it, he writes about his experience debating Rev. John Rankin of the Theological Education Institute of Hartford, Connecticut, who engages in, what should be termed "the fundamentalist fallacy" concerning natural rights.
The fallacy goes something like this: 1. The Declaration of Independence holds that God grants unalienable rights. 2. God has written in the Bible what behavior is proper. 3. If God forbids a particular behavior in the Bible, then we cannot have a "right" to it.
Corvino effectively demolishes the fallacy. And I should note, Dr. Corvino and I are on a private listserv and I was one of a few people who advised Corvino on his forthcoming debate with Rankin.
It's people like Rankin who are why I originally wrote my post on this subject responding to one of Richard Reeb's posts. In fact, I've been in private email correspondence with Reeb. So I'll reproduce my latest email to him, which is on point:
I simply desire that fundamentalist Christians who profess to believe in natural rights begin with a starting point that whether the God of the Bible commands or forbids X, has nothing to do with whether that behavior is a natural right, unalienable or otherwise. For instance, there are certain behaviors which the God of the Bible forbids -- the murder of innocents, to which we indeed have no natural right. And other behaviors which the same God forbids -- the worship of false Gods, to which we indeed do have an unalienable right.
So just because the God of the Bible forbids, for instance, homosexual behavior, has nothing to do with whether we have a natural right to engage in such behavior.
If Evangelicals conceded to my above syllogism, I'd have no problem with their invocation of natural rights.
[Reeb:] "I take it that the utilitarian ethic is your lodestar, and therefore anything that consenting adults agree to is permissible. That would include not only sodomy but sadism and masochism, as long as the parties agree."
Here's is the problem for you, Mr. Reeb: It seems that we do indeed have a "right" to engage in sadomasochism, as long as the parties agree and the behavior is done in private. As far as I am aware, there are no, nor have there ever been any laws on the books in this nation against sadomasochism -- as long as it takes place under those terms (consenting adults, done in private). If a husband and wife, as part of their sex play, want to bring out the whips and chains, that's their business, and the law has never said otherwise.
See these two posts where Eugene Volokh (whom I understand has some affiliation with Claremont) and I rip to shreds Lester Kinsolving of WorldNutDaily, for claiming that if we recognize gay marriage, then we will have to recognize "S & M" marriages, without realizing that "S & M" marriages are already perfectly legal as long as it's a one man/one woman marriage!
Likewise with the natural law. Griswold held that married couples have a constitutional right to use contraception. Now, some very serious natural lawyers believe that this violates the natural law. I think even Harry Jaffa and Claremont have supported the right to maritial privacy under these terms (although, not the reasoning in Griswold). So there you have it: we have a natural constitutional right to privacy, to do what arguably violates the natural law.
This isn't to say that the morality that derives from the natural law or the Bible isn't important to society. But our natural rights regime dictates that most of these decisions be left in the private sphere of society, that individuals, in their "pursuit" of happiness, be guaranteed the right to figure these things out for themselves.