This past June, Secretary of State Mike Pompeo announced the creation of the Commission on Unalienable Rights in a Wall Street Journal opinion-editorial. In his piece, he clarified that the commission “won’t opine on policy” but will instead “generate a serious debate” and “fresh thinking about human rights and propose reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights.” The 12-member commission is led by Mary Ann Glendon, a Harvard law professor and former U.S. ambassador to the Vatican. Glendon and many of the other members are political conservatives.
Pompeo’s description of the commission orients it entirely outward, toward the international arena and away from U.S. issues. He mentions the misuse of human rights discourses by “[o]ppressive regimes like Iran and Cuba” (while ignoring, as the administration generally has, the rights violations of American political favorites like Saudi Arabia, Egypt and North Korea) and the commission’s focus on “help[ing] reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions.” An anonymous State Department spokesperson also promised that the commission will not address domestic matters.
Some commentators, however, worry that the commission aims to redefine international human rights specifically in order to influence U.S. conceptions of rights.
The commission is seen as part of the Trump administration’s elevation of religious rights more generally. In mid-July, Pompeo hosted the second annual Ministerial to Advance Religious Freedom at the U.S. State Department. And in June, when Pompeo presented the 2018 State Department Report on International Religious Freedom, he announced he was elevating the Office of International Religious Freedom so that it reported directly to the undersecretary for civilian security, democracy and human rights.
This emphasis on religious freedom as one among other “unalienable rights” is contested by some prominent human rights groups. Critics worry that a human rights framework with “natural law and natural rights” at its core will privilege religious conceptions of morality in the broader human rights discourse. Natural law theory originates from the work of the medieval Christian theologian Thomas Aquinas, who “believed that the nature of things is revealed by their purpose.” Humans understand their purpose by using reason, but he also argued that that purpose “happened to coincide with what God intended that purpose to be.” For Aquinas, that principle in practice meant, for example, that the purpose of human procreation is reproduction and sexual acts outside of that context were immoral. Opponents of abortion and gay sex often use natural law to justify their positions.
So, while the aforementioned State Department spokesperson stated the commission “has nothing to do with gay marriage or abortion … It’s not about policy, it’s about principles,” groups like Amnesty International believe the elevation of religious freedom creates a hierarchy of rights that will support religious objections to abortion and rights for LGBTQ individuals. The Human Rights Campaign also considers the commission one sign among others that the Trump administration is “abandoning LGBTQ human rights abroad.”
Thought of in another way, there is a concern that the commission aims to do what conservatives have done with U.S. free speech and religious freedom law. The New York Times last year described the phenomenon as the “weaponization” of the First Amendment by conservative justices on the U.S. Supreme Court. Liberal legal scholars who previously championed free speech and religious freedom as rights for the marginalized are now alarmed by how conservatives are using that same jurisprudence to protect entities deemed “powerful” as against the rights of the powerless. As I explained in an earlier piece for the Freedom Forum Institute,
“[A] study commissioned by the Times found that the court is more likely to protect conservative speech than liberal speech. The law hasn’t changed, but the winners have. And that shift has liberals worried … The Times’s study found that, in recent years, conservatives are bringing more free speech challenges and winning more of their speech cases. This, to the Times, reflects a weaponization of free speech.”
The concern is tied up also with the Trump’s administration’s appointment of hundreds of conservative judges to the federal bench. Liberals see this as widespread infiltration of the judiciary with “conservative ideology,” a product of the right’s “legal revolution” that was carefully developed over the past few decades by “fund[ing] and encourag[ing] a new generation of conservative lawyers who would populate the Federalist Society’s chapters and eventually the federal courts.”
Critics of the commission worry it is set up to facilitate a similar “weaponization” of international law (that is, a privileging of conservative claims over liberal ones) which in turn will affect domestic jurisprudence. In the face of the right’s legal revolution, the left has argued that international human rights still take precedence over the conservative human rights jurisprudence in the U.S. But as law professor Eric Posner explains, the new commission targets precisely that part of the left’s plan. The contestation of international human rights, as the commissions is set up to do, is in this view a step toward an international human rights discourse that comports with rather than challenges the current American legal discourse. In other words, the commission strengthens the role of rights — like religious freedom — that conservatives champion and does so specifically in the way conservatives champion them.
Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: [email protected].