Travis S. Weber† & L. Lin†† | 2 Regent J. Glob. Just. & Pub. Pol. 277 (2016)
INTRODUCTION
Much is at stake in the developing conflicts between freedom of conscience and lesbian, gay, bisexual, and transgender (LGBT) policies in international human rights law. Conscience is the human faculty with which individuals seek moral truth.1 Over centuries, as evil roused the conscience of previous generations, they recognized the existence of human rights, and called upon states to protect these rights. In the twentieth century, drafters of the international human rights framework cited our endowment with conscience and reason as evidence of our inherent human “dignity,” the basis for universal and inalienable human rights.2
Because the creators of the international human rights system had a high view of conscience, both as a faculty for discerning moral truth and evidence of human dignity, they identified it as a “core human right”; and they created the strongest level of legal protection for it.3 As conflicts between freedom of conscience, state interests, and other rights have arisen, legal interpreters have consistently upheld freedom of conscience. However, over the past decade, conflicts between freedom of conscience and new LGBT policies (particularly legislatively and court-created same-sex marriage and sexual orientation nondiscrimination mandates) have grown. These conflicts threaten the status of freedom of conscience, both as a core human right and as foundational to the human rights system.
I. ORIGINS OF HUMAN RIGHTS
A. Where Do International Human Rights Come From?
No matter what human rights you believe in, this is an important question. For what you believe about the source of human rights will largely determine which rights you consider to be universal and how you believe the human rights system should be sustained and strengthened.
Philosophers, theologians, and legal scholars from many different time periods, have recognized conscience as a source of our rights. From Socrates to Thomas Aquinas, men have sought to determine questions about rights in their conscience.4 The assertion that conscience is the human faculty for apprehending moral truth may seem obvious, but it was not until the seventeenth century that thinkers began to articulate the relationships between conscience, reason, and rights.
In 1625, Dutch legal scholar Hugo Grotius, the “Father of International Law,” identified “right reason” (the ability to discern right from wrong) as a uniquely human power.5 Grotius and many others of his time saw human conscience as evidence that God made individuals in His own image (Imago Dei).6 He also believed that the power to discern right from wrong necessitated certain rights.7 A century after Grotius, Swiss scholar Emmerich de Vattel articulated the role of states vis-à-vis each other. In his watershed book, The Law of Nations, he asserted that states have duties to protect each other’s citizens from injury.8 Taken together, Grotius’ view of our unique human nature and Vattel’s view of the state, created the basis for an international human rights system.9 Neither saw the state as the source of human rights but as trustee of the duty to protect rights.10
Conscience has also been the engine of human rights action. In 1789, William Wilberforce, the “Conscience of England,” showed his nation that African and West Indian slaves were no less human than their masters and possessed human rights in no less measure.11 In his speech “On the Horrors of the Slave Trade,” he made this appeal:
[W]hat is there in this life that should make any man contradict the dictates of his conscience, the principles of justice, the laws of religion, and of God? . . . [T]he circumstances of this trade are now laid open to us . . . we can not turn aside so as to avoid seeing it . . . .12
Wilberforce’s Christian beliefs motivated him to action.13 But, in his appeal to the nation, he did not rely on shared religious beliefs. He called upon the conscience of all citizens to recognize the evil of the slave trade and do their part in ending it. Wilberforce knew the human rights of slaves hinged upon the ability of men to apprehend truth in their conscience.
Florence Nightingale revolutionized medical care in armed conflict after seeing soldiers die needlessly in the Crimean War in 1854.14 She wrote, “[e]very man stands upon his own conscience; everything is between himself and his God.”15 Conscience caused the earliest human rights activists to turn ideas into action to protect the vulnerable.
In the twentieth century, World War II and the Holocaust shocked the collective conscience of the world. The post-World War II generation vowed “never again” and created a system of international law to protect the human rights of every person. In 1947, the United Nations (UN) commissioned American First Lady Eleanor Roosevelt, Lebanese Christian leader Charles Malik, Chinese philosopher Peng Chun Chang, French diplomat René Cassin, and Canadian lawyer John Peters Humphrey to draft the Universal Declaration of Human Rights (UDHR).16 They came from different nations, cultures, and religions.17 Roosevelt was Protestant.18 Cassin was Jewish.19. Chang was a noted Confucian scholar.20 Malik was Greek Orthodox.21 They could not agree on divinity, but all saw the need for a transcendent basis for human rights.
They found this in human dignity—Article 1 of the UDHR states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience . . . .”22
Like Grotius and Vattel, the drafters found that man’s endowed qualities of reason and conscience are evidence of our unique human dignity. This dignity requires all states to recognize the rights of all humans. The clear lesson of World War II was that an unchecked state could produce unimaginable evil and suffering and abhorrent violations of individual rights.23 Therefore, the UDHR made clear that human dignity and endowed reason and conscience was the source of human rights, not the state.24 To directly safeguard individual conscience, it created the strongest legal protection possible. The UDHR itself did not create rights—it merely recognized their existence.25
1 See Conscience, BLACK’ S LAW DICTIONARY (10th ed. 2014).
2 See G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 1 (Dec. 10, 1948) [hereinafter UDHR].
3 See International Covenant on Civil and Political Rights art. 4, opened for signature Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 AM . U.L. REV . 1, 17–19 (1982)(explaining that while the ICCPR admits that states have the authority to derogate certain human rights in times of emergency, the ICCPR categorizes the right to conscience as an inalienable right that never can be lawfully derogated).
4 Robert P. Lawry, Ethics in the Shadow of the Law: The Political Obligation of a Citizen, 52 CASE W. RES. L. REV. 655, 718–19 (2002) (discussing the attempts of Socrates, Aquinas, Thoreau, Martin Luther King, Jr. et. al. to proffer an acceptable solution in instances when conscience and the duty to obey the law are in conflict).
5 1 HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 150–153 (Richard Tuck ed., Liberty Fund 2005) (1625), http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/grotius/Law2.pdf; Benjamin Strauman, Early Modern Sovereignty and Its Limits, 16 THEORETICAL INQUIRIES L. 423, 429–30 (2015) (noting that Cicero and Grotius similarly attribute right
reason to humans alone).
6 Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, in INTERNATIONAL LAW AND RELIGION (Martti Koskenniemi et al. eds.) (forthcoming) (manuscript at 2–3), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665553.
7 See GROTIUS, supra note 5, at 1132 & n. 8.
8 EMER DE VATTEL, THE LAW OF NATIONS, 262–63 (Richard Whatmore & Béla Kapossy eds., Liberty Fund 2008) (1758), http://oll.libertyfund.org/titles/2246.
9 See Evan J. Criddle, Standing for Human Rights Abroad, 100 CORNELL L. REV. 269, 299–332 (2015).
10 See id. at 308, 313, 332 (noting that the “fiduciary theory” based on the work of Vattel and Grotius provides for an international law system where human rights are vested “exclusively in human beings,” not the state).
11 See William Wilberforce, On the Horrors of the Slave Trade, Speech in the House of Commons (May 12, 1789), in 4 THE WORLD’S FAMOUS ORATIONS 60, 68 (William Jennings Bryan & Francis W. Halsey eds., 1906) (arguing against the inhumanity of the slave trade
that caused the “effusion of human blood,” set “fellow creatures a-hunting each other for slaves,” and filled fairs and markets with “human flesh”).
12 Id. at 69–70 (emphasis added).
13 Michael V. Hernandez, A Flawed Foundation: Christianity’s Loss of Preeminent Influence on American Law, 56 RUTGERS L. REV. 625, 681 n. 348 (2004).
14 See Tsvetelina Gerova-Wilson, Nursing Is Not a Lesser Included Profession: Why Physicians Should Not Be Allowed to Establish the Nursing Standard of Care, 16 QUINNIPIAC HEALTH L.J. 43, 45 n. 12 (2012–2013) (describing the impact of Nightingale’s reforms on the practice of nursing and treating those wounded in war).
15 Letter from Florence Nightingale (Feb. 17, 1848), in 7 FLORENCE NIGHTINGALE’S EUROPEAN TRAVELS 264, 265 (Lynn McDonald ed., 2004) (ebook) (writing these words in reflecting upon Michelangelo’s painting, The Last Judgment, and perhaps revealing the associations she made between conscience, duty, rights, and religion).
16 See History of the Document, UNITED NATIONS, http://www.un.org/en/sections/universal-declaration/history-document/ (last visited Feb. 2, 2016).
17 See id.
18 Mary Ann Glendon, God and Mrs. Roosevelt, FIRST THINGS (May 2010), http://www.firstthings.com/article/2010/05/god-and-mrs-roosevelt.
19 JAY WINTER & ANTOINE PROST, RENÉ CASSIN AND HUMAN RIGHTS: FROM THE GREAT WAR TO THE UNIVERSAL DECLARATION 318 (2013).
20 Mary Ann Glendon, Foundations of Human Rights: The Unfinished Business, 44 AM. J. JURIS. 1, 1 (1999).
21 Drafting of the Universal Declaration of Human Rights, UNITED NATIONS,
http://research.un.org/en/undhr/draftingcommittee (last visited Feb. 2, 2016).
22 UDHR, supra note 2, art. 1 (emphasis added).
23 See Karina Michael Waller, Intrastate Ethnic Conflicts and International Law: How the Rise of Intrastate Ethnic Conflicts Has Rendered International Human Rights Laws Ineffective, Especially Regarding Sex-Based Crimes, 9 AM. U. J. GENDER SOCIAL SOC. POL’Y & L. 621, 622, 624–25 (2001); History of the Document, supra note 16.
24 See UDHR, supra note 2, pmbl., art. 1–2.
25 See id.
† Director, Center for Religious Liberty, Family Research Council, Washington,
D.C.; B.S. 2002, U.S. Naval Academy; J.D. 2010, Regent University School of Law; LL.M. 2011, Georgetown University Law Center.
†† L. Lin is a graduate of Harvard Law School who has defended freedom of thought, conscience and religion for clients of various faiths from around the world.