Special rights is a term originally used by libertarians to refer to laws granting rights to one or more groups which are not extended to other groups. Ideas of special rights are controversial, as they clash with the principle of equality before the law.
Potential examples of special rights include affirmative action policies or hate crime legislation with regard to ethnic, religious or sexual minorities, or the state recognition of marriage as a group with different taxation than those who are non-married.
More recently, social conservatives have used the term to more narrowly refer to measures that extend existing rights for heterosexual couples to gays and lesbians, such as in the case of same sex marriage, or that include sexual orientation as a civil rights minority group. This term is also used internationally, for example Sonderrechte in Germany, although it is used regarding special traffic right-of-way exceptions given to emergency response and military vehicles.
The basis behind the argument of the term is based on whether it should be considered just and legal for a law to be enacted that treats various parties unequally. For example, in the United States Constitution the prohibition on Bills of Attainder require that laws do not single out a single person or group of persons for specific treatment.
Another example is the equal protection clause in the Fourteenth Amendment to the United States Constitution. Both sides argue that the other side is or has traditionally been singled out and therefore the law is either needed or unnecessary. In some cases, such as those with social implications, the universal definition of rights also often conflict with other, often more regional or local, laws that require certain public standards or behavior based on cultural norms.
Libertarianism on rights and special rights
In The Encyclopedia of Libertarianism, Eric Mack states:
A too-ready acceptance of alleged rights leads to an oppressive list of enforceable obligations. As the list of others' rights grows, each of us is subject to a growing burden made up of the obligations correlative to those rights; correspondingly the ability of rights to be protective of individual choice dissolves. Moreover, as the list of rights grows, so too does the legitimate role of political and legal institutions, and the libertarian case for radically limiting the scope and power of such institutions withers away. Libertarian theories of rights avoid generating an oppressive list of obligations through the employment of two crucial distinctions - the distinction between negative and positive rights and the distinction between general and special rights.
Definition of minorities
Minority rights advocacy groups often contend that such protections confer no special rights, and describe these laws instead as protecting equal rights, due to past conditions or legal privileges for specific groups.
- Mack, Eric (2008). "Individual rights". In Hamowy, Ronald. The Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE Publications, Cato Institute. pp. 245–7. ISBN 978-1-4129-6580-4. LCCN 2008009151. OCLC 750831024.
- Stone, Amy (2012). "Gay Rights At The Ballot Box". Minneapolis: University of Minnesota Press. p. 25. Retrieved June 10, 2013.
- Tashman, Brian. "Perkins Labels LGBT-Rights Initiative a 'Radical' Push for 'Special Rights for Homosexuals and Homosexuality'". People for the American Way. Retrieved June 10, 2013.
- Cobb, Michael (June 1, 2006). "God Hates Fags: The Rhetorics of Religious Violence". NYU Press. p. 41. Retrieved June 10, 2013.
- "Flashing blue and yellow lights". German Federal Ministry of Justice. Retrieved November 24, 2008.
- "Constitution of the United States: Article 1, Section 9". Retrieved 2008-11-24.
- Kucaradi, Ioanna. "Universality Versus Particularity? In The Light Of Epistemological Knowledge Of Norms". United Nations University. Retrieved 2008-11-24.
- "Offensive Terminology to Avoid". GLAAD. Archived from the original on 2006-03-01. Retrieved 2006-05-30.