Freedom of Religion – A Matter of Effective Balancing

This October, the State Department is scheduled to convene a three-day public-private partnership workshop, part of the new “Boldline Religious Freedom” initiative, aimed at protecting the rights of religious minorities.  In principle, promoting religious freedom is a laudable endeavor – but given the unparalleled level of resources and energies this Administration is devoting to this as a stand-alone pursuit, we have a couple of red flags to raise.

To be clear, neither the Council nor any of its member organizations holds animus against the protection and promotion of religious freedom.  Several of our member organizations themselves are faith-based in character, and organizationally we have applauded mention in the Department’s own annual human rights reports when the rights of LGBT individuals and communities to practice their religious faith have been violated.

But balance is important to effective diplomacy – and the question of balance is the first red flag to raise.  The only ministerial hosted to date by this Administration was devoted to religious freedom.  At its closure, Secretary Pompeo announced a follow-on series of regional events around the world aimed at advancing religious freedom.  The Department has created a religious freedom-dedicated International Visitor Leadership Program, and an International Religious Freedom Fund to put resources to the task.  The Department’s Assistant Secretary-designate for Democracy, Human Rights and Labor carries a singular focus on religious liberty.  Ambassador Brownback, the State Department’s Ambassador at Large for International Religious Freedom, has carried a higher profile and more interventionist approach than his predecessors.  And Pompeo will host a second ministerial on religious freedom in 2019.

So, is the Department of State becoming a department of religious affairs?  We’ve yet to see a parallel focus by the Secretary on any other issue important to U.S. national interests – not Middle East peace, nor Syria’s burgeoning refugee crisis, nor promoting secure and stable governments, or encouraging democratic institutions and regional stability.  We’ve seen no embrace of human rights, and no strategy to counter Russia’s threat to American leadership and values – no focus on encouraging economic reforms that can both allow other countries to feed their people AND create conditions in which America’s trade and investment interests can thrive.

And we’ve seen no awareness by Secretary Pompeo that all of these issues are interconnected.  Pulling one thread to its end can only tighten the rest – and pursuing one stand-alone goal may well be counter-productive to wider success.

That leads to our second red flag.  Simply put, we worry that the Administration’s very understanding of religious freedom may be warped at its core, embracing the notion that religious faith can be used to sidestep a government’s compliance with core responsibilities of ensuring equal protection, justice and rights for all citizens.

Our concern, of course, is based on this Administration’s unprecedented championing of religious exception policies at home – policies that have infringed on fairness toward LGBT citizens, among others.  The baggage in this regard carried by Ambassador Brownback is clear; so is that of Vice President Pence.  And the influence of religious Christian conservatives with them is clear as well.

The damage that can be done by headline promotion of religious freedom policies in foreign countries that are struggling with their own understanding and practice of democracy is potentially immense.  That potential should be of concern to all Americans – particularly given the Administration’s conscious effort to strip away the democratic guard rails intended to protect equality in our own country.

We’d like to see the Secretary – or perhaps his nominee for Under Secretary for Civilian Security, Democracy and Human Rights – explain publicly how the Department’s unprecedented championing of religious freedom fits into a broader policy framework in which these broader democratic rights and freedoms are understood and advanced.  And we’d like to see more attention to that broader framework.

The Equal Rights Coalition Gains Momentum on the Global Stage

Created two years ago at an international conference in Uruguay, the Equal Rights Coalition (ERC) is a new intergovernmental coalition of 40 governments and leading civil society and multilateral organizations that work together to protect the human rights of LGBTI people around the world.  (See the list of governments and civil society members here.)  The Canadian and Chilean governments, as the current co-chairs, hosted the second global conference of the ERC in Vancouver, Canada this August.

The United States has been a leading proponent of the ERC, and U.S. Deputy Secretary of State John Sullivan sent video remarks, pledging “the United States will remain a steadfast partner” of the ERC in “addressing the threats and unique human rights challenges of LGBTI persons.”  The U.S. government was represented in Vancouver both by Deputy Assistant Secretary of State Scott Busby and by Deputy Assistant Attorney General Robert Moossy, reflecting the dual internal/external focus of the ERC.  At its best, the ERC is an institution that coordinates external diplomacy while simultaneously promoting internal best practices across member countries.

The theme of the Vancouver conference was “Leaving No One Behind,” and the final communiqué broke important ground, primarily by reaffirming that “LGBTI persons continue to face human rights abuses and violations . . . [that] include discrimination, violence and arbitrary arrests, on the basis of real or perceived sexual orientation, gender identity or expression, or sex characteristics.”  The 40 governments together pledged “to encourage innovative and effective policy and assistance approaches tailored to the needs and experiences of diverse communities and to work closely with civil society organizations and all relevant stakeholders in our efforts.”  As a founding civil society member of the ERC, the Council for Global Equality will hold the governments – and most especially the U.S. government – to this pledge.

As they left Vancouver, the forty governments made ten concrete commitments in a final communiqué.  Those commitments must be monitored closely in advance of the next ERC global conference two years hence.  And while all ten of the commitments are important, at least three of them deserve heightened scrutiny because they break new ground and demand significant new domestic funding and new policy reforms over the coming two years.  Notably, the governments pledged publicly that:

• “We commit to advancing the work of the ERC by further strengthening its collaboration with its key partners, including civil society, international organisations, multilateral agencies, academia, the private sector and all others working to promote and protect the human rights and fundamental freedoms of LGBTI persons.” To honor this commitment, the ERC member governments must commit adequate annual funding to support a civil society secretariat and sufficient travel funds to ensure robust and geographically diverse participation by civil society in the work of the ERC.  This is the minimum funding requirement needed to honor the ERC’s Founding Principles.
• “We commit to increasing the overall quantity and quality of assistance dedicated to protecting and promoting the human rights and inclusive development needs of LGBTI individuals, communities and organizations.” The Global Philanthropy Project tracks this funding, and we should all watch the data closely, but the governments also must commit publicly to disclose and disaggregate funding data across communities and sectors – albeit with appropriate safeguards for individuals and recipients operating in hostile legal environments around the world.
• “We commit to working together to advocate appropriate protections for intersex persons and encourage states to implement policies and procedures, as appropriate, to ensure that medical practices are consistent with international human rights obligations.” As civil society, we believe that Malta alone, of all forty member governments, has adopted even the most basic legal standards to protect the human rights of intersex citizens.  Every government has significant progress to make to protect intersex individuals, including by prohibiting medically unnecessary normalizing surgeries and other treatments on infants and others who are unable to consent to those interventions.

Deputy Secretary Sullivan noted that “in just two years, our Equal Rights Coalition has made significant strides. The Coalition has been on the leading edge of the international community’s response to human rights violations and abuses such as those committed in Chechnya and elsewhere around the world.” For this to remain true, member governments must honor their commitments.  This is perhaps most important with respect to the domestic commitments of member governments.  Progress realized against these commitments at home will provide even more credibility – and an important measure of humility – when advocating for human rights on the global stage.

U.S. Joins 14 Countries in Calling for a Response to LGBTI Atrocities in Chechnya

At a large human rights meeting in Warsaw, Poland, the United States and 14 other governments are trying to hold Russia accountable for atrocities committed against its LGBT citizens in Chechnya.  U.S. Ambassador Michael Kozak explained to the Organization for Security and Cooperation in Europe (OSCE) that: “The United States joined 14 other participating States in invoking the OSCE’s Vienna Mechanism, requiring Russia to provide a serious response to reports of appalling abuses by Chechen authorities against persons for their perceived or actual sexual orientation or gender identity, as well as against human rights defenders, lawyers, and members of independent media and civil society organizations.”

Ambassador Kozak is referring to a decision to invoke a rarely-used human rights mechanism that was triggered two weeks ago by 15 OSCE governments (Canada, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Latvia, Lithuania, the Netherlands, Norway, Sweden, the United Kingdom, and the United States).  The “Vienna Mechanism,” as it’s known at the OSCE, now requires the Russian government to respond within ten days to a specific set of questions on human rights abuses in Chechnya, including, most pointedly, this key question: “How have Russian federal authorities investigated allegations of violations and abuses reportedly committed against actual or perceived LGBTI persons, and how have they arrived at the conclusion (as repeated by Russian authorities) that no such violations or abuses have occurred and that no LGBTI persons exist in Chechnya?”

The ten-day deadline just passed without a response from Russia.  The next step in this diplomatic dance is to invoke the OSCE’s “Moscow Mechanism.”  The Moscow Mechanism moves beyond a cordial request for information and empowers independent fact-finding experts to prepare an official report on the atrocities and human rights obligations in Chechnya.  LGBTI and allied human rights advocates are at the Warsaw meeting this week to call on governments to take that next step to invoke the Moscow Mechanism – and to do so sooner rather than later.

The OSCE has its origins in a 1975 agreement that facilitated security negotiations between East and West during the Cold War.  At the end of the Cold War, it was reinvented as an institution that promotes security, democracy and human rights across 57 countries in North America, Europe and Asia, with special attention to the promotion of human rights and democracy in Eastern Europe and the former Soviet Union.

More recently, the member governments of the OSCE agreed to address hate crimes as a priority human rights and security challenge across the region, pledging to support effective training, education, legislation, prosecution and data collection to respond to bias-motivated crimes directed at minority communities.  To date, the OSCE’s engagement has focused on responses to hate crimes targeting religious and ethnic minorities, including strong responses to anti-Semitism and discrimination against Muslims and Roma in Europe.

Increasingly, however, the OSCE also has been addressing hate crimes targeting LGBTI citizens.  This is an important development that is moving forward despite the objections of Russia and the Vatican and other OSCE states that cling to anti-LGBTI laws and policies.  By invoking the Moscow Mechanism in this particular case in Chechnya, the OSCE would for the first time empower independent experts to establish, conclusively, whether Russia has violated its human rights commitments as a result of its failure to protect its own LGBTI citizens from torture, arbitrary detention and extrajudicial execution.  Sadly, the world already knows the answer to that question.  But it is important to establish the facts through an official record that could provide the basis for additional actions at the OSCE, the United Nations and in OSCE member countries.  It is also crucial that the OSCE not turn a blind eye to the violence because of the sexual orientation of the victims.

This is primarily and most importantly an effort to respond to impunity for LGBTI hate violence in Russia.  But it also sets an important precedent within the OSCE, as 15 of the organization’s leading members – and leading funders – have taken collective action against LGBTI violence.  Civil society must build on this momentum to insist that the OSCE strengthen its capacity to respond to LGBTI hate crimes in the same way across all OSCE countries.

India’s Supreme Court Decision is a Victory for Global Equality

Soumen Nath, New Delhi, India: Delhi Queer Pride -2015

September 6, 2018 — The Supreme Court of India today issued a unanimous decision decriminalizing same-sex relationships across the country. The landmark case, which combines careful legal reasoning with inspiring philosophy and prose, stands to animate similar legal challenges to colonial-era sodomy laws in other former British colonies, including pending cases in Botswana, Jamaica and Kenya. After nearly two decades of local activism and legal struggle in India, the decision is a powerful affirmation of the democratic and constitutional rights of sexual minorities in India and beyond.

The carefully crafted judgment carries important moral authority, since article 377 of the Indian Penal Code was a colonial-era legal model that was eventually imposed on British colonies worldwide. As a result, the legal reasoning is reverberating across the British Commonwealth. Just as important, the decision’s political arguments, coming from the largest and most diverse democracy in the world, provide a guiding framework for democratic citizenship in any pluralistic society – and an important warning against the tribalism and nativism that are driving so much of the world’s politics today.

Five judges on India’s Supreme Court ruled that India’s “Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.” Indeed, the Court went on to find that “our ability to survive as a free society will depend on whether constitutional values prevail over the impulses of the time. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and the equal protection of law.”

Looking beyond its own constitution, the Supreme Court of India also analyzed comparative jurisprudence from courts around the world, including leading LGBT cases from the U.S. Supreme Court. One of the “guiding principles” that emerged from this exhaustive comparative review is that: “The right to love and to a partner, to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights.”

The breadth of the decriminalization decision is remarkable. Finding that “homosexuality is a natural variant of human sexuality,” the Court concluded that 377 violates the rights to life, liberty, privacy, equality, expression and health. But the Court was perhaps most eloquent in defending the rights to individual dignity and citizenship. With that voice, the India decision stands as an emotionally powerful legal argument that tracks U.S. Supreme Court jurisprudence, including the Obergefell decision in 2015 that found a Constitutional right to same-sex marriage in the United States.

In Obergefell, Justice Kennedy emphasized the fundamental human dignity of individuals and families seeking Constitutional protection before the Court, writing that “they ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The Supreme Court of India went a step further, noting that “history owes an apology to the members of this community and their families, . . . . LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.”