Pompeo’s Dangerously Misguided Human Rights Commission

Secretary Pompeo’s new “Commission on Unalienable Rights” met for five hours at the State Department yesterday to refocus our nation’s human rights policy on the principles contained in the  country’s founding documents and religious heritage, because Pompeo believes that the world is confused.  According to Pompeo, this confusion stems from the failure to distinguish God-given, “unalienable rights” from simple political claims or mere personal preferences.  The world is clamoring for moral clarity, and Pompeo’s Commission has stepped up to provide pastoral guidance based on our country’s founding texts – never mind that those early texts enshrined slavery and denied rights to all but a limited group of white men.

The Commission, stacked with religiously-focused academics who oppose the rights of LGBTI individuals and the sexual and reproductive rights of women, took a deep dive into the meaning of “unalienable rights” in the context of our founding texts, including the Declaration of Independence, which most famously affirmed the unalienable rights to “life, liberty and the pursuit of happiness.” They didn’t quite get what they wanted.

The Commission’s first witness, Michael McConnel, a Constitutional scholar at Stanford Law School and a former justice on the U.S. Tenth Circuit Court of Appeals, warned that the term “unalienable rights,” which comes to us from our country’s protestant reform traditions, has never had a common or precise definition.  The phrase identifies a philosophical concept, rather than a concrete set of rights.  And while the concept often prioritizes freedom of religion, McConnel cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.

McConnell also recognized the implicit failures of this philosophical approach.  While the term “unalienable rights” makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.

This all must have been a blow to the Commissioners, since Pompeo clearly wants them to propose a new hierarchy of unalienable rights — with religious freedom at the pinnacle and the rights of LGBTI and other individuals with specific “preferences” in the alienable category.  Indeed, Pompeo constantly speaks of religious freedom as the “first right” from which other rights flow, proclaiming, often in messianic terms, that human rights “came from our Lord, and when we get this right, we’ll have done something good, not just I think for the United States but for the world.”

While U.S. moral leadership ebbs and flows, and our commitment to human rights institutions has been uneven over the years, it is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others.  Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world. Those same oppressors also happen to be some of the leading persecutors of LGBTI individuals and other marginalized groups.

It is clear that our worst fears have been confirmed and that yesterday’s meeting was the christening of Pompeo’s intensely academic attempt to justify his efforts to elevate religious freedom to a position of dominance in our country’s human rights diplomacy.  This policy shift was already foreshadowed by Pompeo’s announcement in June, marking the release of the State Department’s 2018 Annual Report on International Religious Freedom, that he would strip the State Department’s office of religious freedom out of the Department’s human rights bureau, where it long has served to integrate religious liberty concerns with other human rights priorities, to a position of independence and priority in the Department’s organizational hierarchy.

But this project also seems designed to justify America’s loss of moral authority by blaming it on a “crisis” in the modern human rights system, as described by Commission Chair Mary Ann Glendon. Apparently, it has nothing to do with President Trump’s delight in cozying up to the world’s worst human rights abusers, or to his chaotic policies that green-light human rights atrocities, like the current ethnic cleansing of Kurds in Syria.  This Commission is dedicated to the proposition that it’s all a matter of human rights confusion, not a failure of leadership.  Our best hope is that the Commission itself fails in this misguided enterprise.

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