Human rights should never be subjected to a popular vote. The will of the people does not matter in the slightest. The Supreme Court did not give LGBT citizens anything today. Countries merely recognize the rights that already exist, and protect them.
Well, it finally happened. Today the Supreme Court of the United States, on the anniversary of both Lawrence v. Texas and U.S. v. Windsor, has officially recognized a basic human right for LGBT citizens in the case of Obergefell v. Hodges. There will be a great deal of analysis of this opinion, what it means, and what the next steps toward LGBT equality are in the United States. My goal here and now is to address the question of how that equality is achieved.
It’s a question so important that Justice Anthony Kennedy devoted an entire section of his Obergefell opinion to it:
“…the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.”
One of the strongest, most cogent arguments against marriage equality was that the Supreme Court had no right to decide the issue because it was already being fought out in the states. The opponents contended that legislatures and referenda were the appropriate battleground.
After all, look at what happened in Ireland in May, when 62.07 percent of Irish voters approved what became the 34th Amendment to their Constitution:
“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
Marriage equality came to Ireland in a shocking manner, given its history as a largely conservative, Catholic nation — it was the very first time in human history that a national referendum recognized the rights of LGBT people to marry.
I don’t want to take anything away from that amazing event, or from the victories hard won in our individual states, but human rights should never have been subjected to the popular vote in Ireland or anywhere else. Why? Because of the very nature of human rights themselves.
What are human rights?
Human rights (or “fundamental rights,” as we call them here in the U.S.) are rights that are so integral to who we are as members of the human family, that they cannot help but be universally recognized and understood. We disagree on where they come from, but we all agree they exist.
Christians and Jews believe that human rights originate with our creation. In creating humans in His image, God imbued us with certain inborn and inalienable freedoms that flow from our very being.
Muslims believe that the value of a person is absolute and connected with the lives of all other human beings. Mohammed Allal Sinaceur, the Moroccan philosopher, explains the Islamic positions as:
“The value of the individual is neither numerical nor rational nor social; it is the gift of God himself, a gift to man as such—without regard either for attributes of civilization or for historic renown or for the excellence of his self-consciousness.”
Tenzin Gyatso, His Holiness the XIVth Dalai Lama, wrote:
“Human rights are of universal interest because it is the inherent nature of all human beings to yearn for freedom, equality and dignity and they have a right to achieve them. Whether we like it or not, we have all been born into this world as part of one great human family.”
The easiest explanation: They are the rights we have because we are human. There is a marvelous set of videos produced by United for Human Rights which explain the concept in far greater detail.
The Universal Declaration of Human Rights
Few documents embody the concept better than the Universal Declaration of Human Rights. Documents throughout history have pressed the importance of human rights, including the Cyrus Cylinder (539 B.C.E.), The Magna Carta (1215), our own Declaration of Independence (1776), and The French Declaration of the Rights of Man and of the Citizen (1789) — but what makes the Universal Declaration so amazing is the way it came into being.
In October of 1945, in the aftermath of World War II, the United Nations was created to save future generations from the sort of worldwide conflict that mankind had just been plunged into for a second time. One of the seven principal bodies of the U.N. is the Economic and Social Council, first chaired by Eleanor Roosevelt. One of her first orders of business was to create a document to represent the fundamental rights inherent in each human being, inalienable by the law of any nation or the act of any person.
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…
From that lofty beginning issues a sweeping document outlining 30 basic human rights, including the right to life, freedom in your person and choices, freedom from torture, ownership of property, a reasonable standard of living, work, and even rest. The Declaration was adopted by the U.N. General Assembly by a vote of 48 in favor, none against, and eight abstentions.
Of particular concern today is Article 16:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
‘Gay rights are human rights, and human rights are gay rights’
On Dec. 6, 2011, then Secretary of State Hillary Clinton delivered what has been recognized as the landmark speech on international LGBT rights, in Geneva on International Human Rights Day. Never before had such a powerful international figure made such a direct and profound statement in support of human rights for LGBT persons across the globe.
She addressed five issues pertaining to LGBT human rights, two of which are critical to the issue of marriage rights for LGBT Americans. The first of these issues was this:
“Some have suggested that gay rights and human rights are separate and distinct; but, in fact, they are one and the same…Like being a woman, like being a racial, religious, tribal, or ethnic minority, being LGBT does not make you less human. And that is why gay rights are human rights, and human rights are gay rights.”
This is probably the most important part of the discussion surrounding human rights as they pertain to the LGBT population. Article 2 of the Declaration states, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added).
Homosexuality, bisexuality, and transgenderism are all statuses by which people are judged and discriminated against every bit as much as sex, race, religion, or national origin. The opposition constantly seeks to dehumanize us and cast us as “other” in order to portray our fight for rights as a fight against them. But the members of the LGBT community are, in fact, members of the human family, real flesh-and-blood people with all of the same inalienable rights with which any other person is endowed.
The other important issue that Clinton spoke to was this:
“[P]erhaps [the] most challenging, issue arises when people cite religious or cultural values as a reason to violate or not to protect the human rights of LGBT citizens. This is not unlike the justification offered for violent practices towards women like honor killings, widow burning, or female genital mutilation…Likewise with slavery…In each of these cases, we came to learn that no practice or tradition trumps the human rights that belong to all of us.”
Here, she is speaking directly to the heart of the conflict in the United States, and in many other places around the world. The fact that some people have a religious objection to any expression of humanity other than cisgender heterosexuality is not justification for denying anyone their inborn rights. It is not an attack on religious freedom to allow LGBT citizens the right to marry the person we love, it’s an inborn right as well as one guaranteed us under domestic and international law. The right to marry and found a family is inalienable. It cannot be taken from us, and we do not require the permission of the majority of Americans to exercise it.
A misleading precedent
So, if the Irish people have, with one unified voice, loudly and proudly declared the protection of human rights for LGBT citizens within its borders, what is my problem? Why couldn’t we just let the inevitable happen here in America as well? I’ll tell you.
Human rights do not stem from the will of the majority in any nation. Ayn Rand (even a broken clock is right twice a day) said, “…individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities.” If this is true, the inverse is also true; a majority has no right to permit or grant the rights of a minority.
How, then, is a law passed by a nation’s legislature or struck down by a nation’s court different? As Secretary Clinton said in Geneva,
“[P]rogress comes from changes in laws. In many places, including my own country, legal protections have preceded, not followed, broader recognition of rights. Laws have a teaching effect. Laws that discriminate validate other kinds of discrimination. Laws that require equal protections reinforce the moral imperative of equality. And practically speaking, it is often the case that laws must change before fears about change dissipate.”
The Irish referendum set a misleading precedent that, on its surface, seemed to validate the Conservative argument that, when it comes to rights, the will of the people should reign supreme. And by this reasoning, the Supreme Court’s recognition of the right of LGBT citizens to marry before the people are “ready” was superseding democratic values and an overreach of power.
You can see this argument’s genuine and earnest side in a question I got from a very good friend today, “Where I 110% support the freedoms given today, how did it become a federal issue, not a state-by-state issue?”
And you can see the ugly side of it in these tweets:
Marriage between a man and a woman was established by God, and no earthly court can alter that. http://t.co/1Kfw9l0KMG
— Gov. Bobby Jindal (@BobbyJindal) June 26, 2015
The Court is 1 of 3 coequal branches of government & they have an imperfect record. Stakes are too high to cede marriage to unelected judges
— Rick Santorum (@RickSantorum) June 26, 2015
I believe SCOTUS' decision is a grave mistake. 5 unelected judges have taken it upon themselves to redefine the institution of marriage.-SKW
— Scott Walker (@ScottWalker) June 26, 2015
We must resist and reject judicial tyranny, not retreat. http://t.co/mlzIBw4VoZ
— Gov. Mike Huckabee (@GovMikeHuckabee) June 26, 2015
The reality though, is that the will of the people does not matter in the slightest when it comes to the recognition of human rights. Where my friend went wrong with his question is that the Supreme Court did not give LGBT citizens anything today. Countries do not grant human rights to a minority, they merely recognize the rights that already exist and protect the exercise thereof. The idea of granting human rights would run contrary to the entire concept.
Thankfully, the Supreme Court of the United States (most of it) understands the nature of human rights:
“The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’ This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.'” (Internal citations omitted).
The Court is very clear here that human rights are inborn and inalienable, and majority will, through law or act, can neither grant them nor take them away. So, while I applaud the people of Ireland for their referendum and I love them for it, the actions of every judge, prime minister, queen, and legislature which have recognized the rights of LGBT citizens to marry are infinitely more important.
If you can abide one more quotation, I leave you with the words of Eleanor Roosevelt’s speech, “In Our Hands,” delivered in 1958 upon the 10th anniversary of the adoption of the Universal Declaration of Human Rights:
“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.”