US advocates fear creation of a hierarchy of human rights

Jennifer Venis, IBA Multimedia JournalistMonday 2 November 2020

In elevating religious liberty over other rights, certain recent US Supreme Court rulings have echoed a Trump administration trend towards prioritising some rights above others, which has alarmed human rights advocates.

In Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania, decided in July, the Supreme Court (the ‘Court’) upheld a regulation, introduced by the Trump administration, which expanded the types of employers able to deny employees insurance coverage for contraception if the employer has religious or moral objections. The US Department of Health and Human Services estimates access to birth control was consequently undercut for 2.9 million people.

In her dissenting opinion, Supreme Court Justice Ruth Bader Ginsburg argued ‘Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree’. Justice Ginsburg died in September, giving US President Donald Trump the opportunity to appoint his third judge to the Court.

The idea that human rights could be hierarchized based on national values runs counter to the very nature of human rights

Federica D’Alessandra
Co-Chair, IBA Human Rights Law Committee

Little Sisters is among several recent Supreme Court decisions privileging religious liberty over other rights. Another is Our Lady of Guadalupe School v Morrissey-Berru, which exempted religiously affiliated schools from scrutiny over employment discrimination.

Akila Radhakrishnan is President of the Global Justice Center, which develops legal strategies to establish and protect human rights and gender equity. She believes ‘The elevation of religious liberty is seriously problematic, especially given the way it’s been constructed to then supersede other fundamental rights’.

Radhakrishnan also has concerns about the confirmation of Justice Amy Coney Barrett in late October, which gave the Court a 6-3 conservative majority. Although Justice Barrett swore to set aside political and personal preferences in her rulings, she is influenced by originalism. At her confirmation hearings, Justice Barrett reiterated that she believes the Constitution should be interpreted on the grounds that it was written: ‘I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time’.

This interpretation, critics argue, ties judges to the moral thinking of the 1700s, undermining society’s moral progression and the rights that this progression has seen guaranteed.

In a 2019 dissent, Justice Barrett claimed that the right to own a gun should be more difficult to revoke than voting rights. Drawing on an 1868 treatise, she argued ‘history does show that felons could be disqualified from exercising certain rights – like the rights to vote and serve on juries – because these rights belonged only to virtuous citizens’.

Justice Barrett could therefore be supportive of other justices’ views, as articulated in an October dissent by Justices Thomas and Alito, that the Court’s 2015 Obergefell v Hodges decision on same-sex marriage wrongly ‘privilege[s] a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment’.

Radhakrishnan highlights other ways in which the Trump administration is trying to narrow understanding of what the fundamental rights of US citizens are. She points to Secretary of State Mike Pompeo’s controversial Commission on Unalienable Rights, created a year after he declared that private property and religious rights are the foremost human rights.

The Commission supports a relativism of rights, and relegates some rights, including marriage equality and abortion, to the status of ‘political controversies’ or ‘preferences’. Its September report states that ‘US foreign policy can and should consider which rights most accord with national principles and interests at any given time’.

Federica D’Alessandra, Co-Chair of the IBA Human Rights Law Committee, says ‘the idea that human rights could be hierarchized based on national values runs counter to the very nature of human rights, which are, and have always been, universal (regardless of religion, cultural, national or other differences), indivisible, and interdependent’.

The Commission’s report does acknowledge this definition of human rights, as per the Universal Declaration of Human Rights 1948 (UDHR), and emphasises the UDHR above more recent agreements.

But the Commission’s Chair, Mary Ann Glendon, has argued the UDHR was only successful because it’s limited to protecting ‘a very small group of basic ideas about human decency’. Glendon added that the Commission has refreshed the United States’ understanding of the UDHR ‘in order to reground universal principles in the specific context of a rights tradition that drew on a biblical inheritance’.

D’Alessandra argues the UDHR provided a blueprint for the protection and fulfilment of human dignity, not a small set of values of decency. She says, ‘This is an important difference, because it has implications for how we approach questions of subsequent expansion of the UDHR blueprint … and politicized rights like those underpinning marriage equality and sexual and reproductive freedom, among many others’.

Wade McMullen is Senior Vice President of Programs & Legal Strategy at Robert F. Kennedy Human Rights (RFK). He highlights that the Commission are ‘cloaking themselves in human rights language and the authority and the legitimacy of the international human rights project, but what they’re really doing is completely sabotaging and undermining it to its core.’

McMullen believes there is no way to reconcile the Commission’s invocation of the UDHR and their prioritisation of religious freedom and property rights over all else, including the right to personal integrity or the right to life.

A letter from 111 civil society organisations and 119 individuals was submitted as official comment on the Commission’s draft report, heavily criticising the existence of the Commission, its composition, and its agenda. Among the signatories were the Global Justice Center and RFK, both of which are also among a group of non-governmental organisations suing the Trump administration over the creation of the Commission.

McMullen believes that although a new US administration could disregard the work of the Commission, particularly given the lack of support from the Department of State’s own human rights division and the international community, damage has already been done.

He points to a late October event hosted by Secretary Pompeo, which saw more than 30 governments – including those of Belarus, Hungary and Poland – join the US in creating the Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family. While ostensibly acknowledging the importance of women’s health and autonomy for society, the Declaration explicitly denies abortion as a right.

‘There is now a model put forth in the international community, via a very powerful and influential international actor in the United States, endorsing cultural relativism and politicising rights claims that have been well established through the international human rights project’, McMullen says.

Radhakrishnan agrees that this reconceptualisation of rights sets a dangerous global precedent. ‘What does it look like for those who are, in some way, still looking to the US for leadership, or rising autocrats around the world who will point to the US to say “see, these things, these human rights, they weren’t real anyway”?’, she asks.