ABSTRACT

The existence of a civil society is premised on the coming together of individuals. Each of those individuals has certain rights, but some of those rights must be limited in order for a society to function. The eternal struggle of Anglo-American liberalism has been to find the proper balance between the taking of some rights with the protection of others. This tension between two fundamental needs of a democratic society has been thrust into the news recently in the cases of Mullins v. Masterpiece Cakeshop, State v. Arlene’s Flowers, and Elane Photography v. Willock. In these cases, a cake-maker, a florist, and a photographer refused to, respectively, create a custom wedding cake, create custom wedding flower arrangements, and photograph a wedding. The couples each brought suit using their state’s statute which prohibited refusing service on the basis of sexual orientation. The service providers raised two defenses based in the First Amendment: the right to be free from compelled speech and the right to free exercise of religion. While both arguments are germane to the issues presented in the cases, this Note’s purpose is to provide a more thorough and searching analysis of the individual rights that are being threatened. In particular, this Note will examine three potential bases for alternative arguments supporting the liberty interests in those cases. These potential bases include the Thirteenth Amendment and its prohibition of involuntary servitude; property law and the right to exclude; and contract law and the freedom to, or more specifically from, contract. While arguments based on these doctrines are not often raised in modern constitutional jurisprudence, a broader analysis based on these doctrines can shed light on the various interests at stake in these cases and offer new ways of thinking about the timeless struggle to balance rights in American society.

INTRODUCTION

Liberty is an illustrious concept, an ideal that fills the hearts and minds of each successive generation with promises of a better tomorrow, and a principle that serves as a foundation of western civilization. However, liberty is as elusive as it is illustrious. Sometimes, liberty is even counterintuitive. In today’s world, there are many conflicts between positive rights, those which must be given, and negative rights, those which are there to take away. In order to pursue the greatest liberty for the most people, negative rights must be emphasized, because giving positive rights to some inherently involves taking negative rights from others.

The distinction between positive and negative rights is often at the forefront of political and legal debates. The right to abortion expounded in Roe v. Wade1 is a negative right, and the Court denied the positive right to a required abortion funding in Maher v. Roe.2 The Hobby Lobby case balanced the negative right of the owners of Hobby Lobby, a closely held corporation, to their religious beliefs with the positive rights of the workers to health insurance that covered contraceptives.3 Every election there seems to be debate about taxes, freedom from which is a negative right, and social safety nets, which are positive rights. These conflicts are common place in today’s society. This Note examines one such clash.

I. THE PROBLEM

A. Masterpiece

This case juxtaposes the rights of complainants, Charlie Craig and David Mullins, under Colorado’s public accommodation laws to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop, Inc., and its owner, Jack C. Phillips, who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.4

In July 2012, Craig and Mullins, a same sex couple, entered Masterpiece.5 Masterpiece, located in Lakewood, Colorado, is owned by Jack Phillips.6 Mr. Phillips creates custom cakes: “Custom designs are his specialty: if you can think it up, Jack can make it into a cake!”7 Craig and Mullins asked Phillips to make them a custom cake for their wedding, but Phillips refused due to his religious beliefs.8 Mr. Phillips made it clear that he would be more than willing to sell or make them any other sort of baked good, just not a cake for their wedding.

Craig’s mother later called Phillips; he informed her that Masterpiece did not make cakes for same-sex weddings due to Phillips’s religious beliefs and because same-sex marriages were not recognized in Colorado at the time. 10 Craig and Mullins then filed charges of discrimination against Masterpiece.11

Colorado’s statute, which was the basis for the suit, declared it unlawful for a place of public accommodation to refuse to provide a service for someone, among other reasons, because of sexual orientation. 12 In Colorado, a place of “public accommodation” is “any place offering services . . . to the public . . . .” 13 Mr. Phillips defended himself by claiming the statute, as applied, violated his First Amendment rights to free exercise of religion 14 and freedom from compelled speech. 15 The Court handed down a decision in favor of Mr. Phillips, but it was on limited grounds. 16

B. Arlene’s Flowers

The state of Washington has a similar statute prohibiting discrimination by service providers.17 This statute is the basis for a case similar to Masterpiece—State v. Arlene’s Flowers, Inc. 18 Barronelle Stutzman owns Arlene’s Flowers Inc., located in Washington.19 Stutzman, though she had been happy to sell the couple flowers in the past, refused to provide flowers for the wedding of Robert Ingersoll and Curt Freed, a same-sex couple. 20 Stutzman says she then gave Ingersoll the name of another florist.21 Both the flower shop and the couple drew a slew of media attention.22 Ingersoll received a variety of offers from other florists to do his wedding about twenty times over.23 But the media coverage was far from unified; Stutzman received threats to her business, and the couple received so much attention that they scaled down their wedding and had it in their own home.24 Stutzman defended the suit on grounds similar to those in Masterpiece.25

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† Law student, Northern Illinois University Law School.

1 Roe v. Wade, 410 U.S. 113 (1973).

2 Maher v. Roe, 432 U.S. 464 (1977).

3 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 1 (2014).

4 Masterpiece Cakeshop, Ltd., v. Colo. Civ. Rts. Commission, 584 U.S. 1 (2018).

5 Id.

6 Id. at 3.

7 Masterpiece Cakeshop, https://masterpiececakes.com (last visited Oct.  8, 2018).

8 Masterpiece Cakeshop, 584 U.S. at 1.

9 Id. at 4.

10 Id.

11 Id. at 1.

12 “(2)(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” COLO. REV . S TAT. § 24-34-601(2)(a)(2018).

13 Masterpiece Cakeshop, 584 U.S. at 5.

14 Id. at 7.

15 Id.

16 See id. at 18.

17 “(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.” WASH. REV. CODE ANN. § 49.60.215(1)(LexisNexis 2011).

18 State v. Arlene’s Flowers, Inc., 389 P.3d 543, 551 (Wash. 2017).

19 Id. at 548.

20 Id.

21 Id. at 549.

22 Id.

23 Barronelle Stutzman, I’m a Florist, but I Refused to Do Flowers for My Gay Friend’s Wedding, THE WASHINGTON POST (Jan. 10, 2018), https://www.washingtonpost.com/posteverything/wp/2015/05/12/im-a-florist-but-i-refused-to-do-flowers-for-my-gay-friends-wedding/?utm_term=.3a3c313b6351).

24 Arlene’s Flowers, 389 P.3d at 549.

25 Id. at 552.

 

Thank you to Ernie Walton and the Center for Global Justice, Human Rights, and the Rule of Law for inviting me to participate in today’s Symposium. I divide my comments today into three parts. First, I’ll discuss how the Supreme Court has come to view the nature of the individual rights that first received Constitutional protection in Griswold v. Connecticut.1 Then, I’ll turn to the effect of Griswold and its progeny on women’s social and economic equality in the U.S. And finally, I’ll offer some thoughts on the future and challenges that continue to face women who seek equal opportunities to define for themselves how their lives should go.

I. GRISWOLD V. CONNECTICUT (AND PROGENY)

In Griswold, the Supreme Court held that a state law criminalizing the use of contraception violated married couples’ privacy rights. 2 The decision promised that couples would be free from state intrusion into the bedroom.3 Seven years later, in Eisenstadt v. Baird, the Court extended the same protection to unmarried couples.

The Court in Griswold found the right to privacy implicit in the various provisions of the Bill of Rights.5 Justice Goldberg’s concurrence, moreover, pointed to the Ninth Amendment’s assurance that the enumeration of certain rights should not be construed to deny the existence of others. 6 In other words, the Framers understood the impossibility of cataloging all individual rights entitled to Constitutional protection (one of the reasons given by Alexander Hamilton for excluding from the Constitution altogether a Bill of Rights). 7 The Ninth Amendment clarifies that the list of rights spelled out in the Bill of Rights is not an exhaustive one. 8

Nonetheless, Constitutional originalists have long criticized the approach taken by the Griswold Court. 9 And I think the Court has responded by better explaining the nature of the privacy right in its later decisions. Eisenstadt v. Baird more explicitly grounded the right to privacy in the Fourteenth Amendment as part of the liberty guaranteed by that provision. 10 In Lawrence v. Texas, where the Court held in 2003 that criminalizing gay sex was not within the Constitutional power of the states, 11 Justice Kennedy wrote for the Court that “[l]iberty … presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct…. [L]iberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” 12

Justice Kennedy also takes a jab at strict interpretationists. In surmising why the Framers did not explicitly include the right to adult consensual intimate conduct (including same-sex conduct), he writes in Lawrence, “[h]ad those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight.” 13 The document that establishes the foundational principles of the nation’s government and rights of individuals within it is not a statute or administrative regulation; it’s a Constitution.

Griswold and its progeny thus establish that we individuals have a Constitutionally-protected liberty interest in private intimate conduct. 14 Pure moral disapproval of conduct is not a sufficient reason for the state to prohibit conduct. For example, the Court held that the Texas statute criminalizing gay sex “further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” 15

Today we understand “privacy” to be an essential aspect of “liberty,” the essence of which is “[l]iberty . . . from unwarranted government[al] intrusion[].” 16

 

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† Cabell Research Professor of Law, William & Mary School of Law. I thank the Institute at Regent University for inviting me to participate in this Symposium, and Charles Alvis for excellent research assistance.
1 Griswold v. Connecticut, 381 U.S. 479 (1965).
2 Id. at 485.
3 See id. at 485–86.
4 Eisenstadt v. Baird, 405 U.S. 438, 443, 454–55 (1972).
5 Griswold, 381 U.S. at 484–85.
6 Id. at 486–87 (Goldberg, J., concurring).
7 Id. at 486–89, 489 n.4.
8 Id. at 492.
9 See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 7–9 (1971) (arguing that Griswold “is an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it”); Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 M ICH. L. REV . 1555, 1597–98 (2004) (“The Griswold-Roe-Lawrence line of cases has no apparent basis in the text or original meaning of the Due Process Clauses, and the Justices have never tried to show that there is one.”). Cf. Jamal Greene, The So-Called Right to Privacy, 43 U.C. DAVIS L. REV. 715, 742–43 (2010) (suggesting that progressives should answer these criticisms by reclassifying privacy rights as liberty rights).
10 See Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 SUP. CT. REV . 173, 197–98 (arguing that Eisenstadt “unmasks Griswold as based on the idea of sexual liberty rather than privacy” because the law challenged in Eisenstadt restricted the distribution rather than the use of contraceptives).
11 Lawrence v. Texas, 539 U.S. 558, 567, 578–79 (2003).
12 Id. at 562, 572 (emphasis added).
13 Id. at 578–79 (emphasis added).
14 See Lawrence v. Texas, 539 U.S. 558, 578 (2003); Eisenstadt v. Baird, 405 U.S. 438, 453–54 (1972); Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).
15 Lawrence, 539 U.S. at 578.
16 Id. at 562.

INTRODUCTION

The European Court of Human Rights (the “Court”) recently decided a French same-sex marriage controversy that was engendered in 2004. 1 In June of 2004, mayor Noël Mamère officiated a marriage between Bertrand Charpentier and Stéphane Chapin.2 Mamère had intended his action to be a test of the compatibility of French law with same-sex marriage, and his ultimate intention was to pursue legal recourse as far as the European Court of Human Rights. 3 Through a refusal to grant an appeal on March 13, 2007, the French Cour de Cassation (the court of last resort for criminal and civil matters) upheld the proposition that marriage is exclusively between a man and a woman,4 and Chapin and Charpentier filed their application for appeal with the Court on September 6, 2007. 5

Perhaps one of the many reasons that same-sex marriage has garnered such eminent controversy in the modern era is due to the way in which proponents of a particular position predominately view counter opinions as being “based on animus.” 6 Without the regard to final causes of this socio-political dissension, the controversy is ripe for legal analysis. The Court accepted the present case to determine the compatibility of France’s ban of same-sex marriage with Articles 8, 12, and 14 of the European Convention of Human Rights (ECHR). 7 Since 1999, and at the time in which the controversy originated, French law recognized the following three types of legal unions: concubinage (similar to the American concept of common-law marriage), “the civil pact of solidarity” (also known as “Pacs;” a civil union other than marriage), and marriage. 8 Same-sex couples could previously avail themselves of concubinage and the civil pact of solidarity, but not legal marriage. 9 Something incredibly odd, however, happened in the time between the Court’s initial acceptance of Chapin in 2007, and the final decision in 2016—France legalized same-sex marriage by statute on May 17, 2013. 10 Therefore, any remedy the Court could have offered in judgment would have been obviated ipso facto, yet the legal enquiry of “discrimination” remained under Articles 8, 12, and 14 of the ECHR. 11

I. THE FACTS & PROCEDURAL HISTORY

In an attempted coup, Noël Mamère conducted a marriage between Bertrand Charpentier and Stéphane Chapin. 12 On May 27, 2004, the local Prosecutor filed an objection to the marriage with the civil registrar for the town of Bègles.13 However, Mamère, who was acting in his capacity as registrar, celebrated the marriage on June 5 despite the objection from the prosecutor.14 The Prosecutor appealed to the High Court of Bordeaux on June 22, and on July 27, this court found that the annulment and subsequent ban of same-sex marriage did not constitute discrimination under Articles 8, 12, and 14 of the ECHR. 15 On April 19, 2005, the Court of Appeals of Bordeaux upheld the lower court’s judgment, reasoning that no discrimination existed under the ECHR because homosexuals were permitted to live as a family and adopt children. 16 Finally, the highest court in France rejected a petition for appeal, deferring to the lower court and specially noting that “marriage is the union [between] a man and a woman.”17

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† B.S. 2014, Regent University; J.D. 2017, Regent University School of Law.
1 See Chapin v. France, App. No. 40183/07, Eur. Ct. H.R. (2016),
http://hudoc.echr.coe.int/fre?i=001-163436 (translation on file with J. GLOBAL JUST. & PUB. POL’ Y); Press Release, Eur. Ct. H.R., Prohibition in France of Marriage Between Same-Sex Couples Prior to the Law of 17 May 2013 Was Not Contrary to the Convention, ECHR 199 (2016), http://hudoc.echr.coe.int/eng-press?i=003-5407086-6765196 [hereinafter Press Release].
2 Daniel Borrillo, Who Is Breaking with Tradition? The Legal Recognition of Same-Sex Partnership in France and the Question of Modernity, 17 YALE J.L. & F EMINISM 89, 93 (2005).
3 Id.
4 See Emmanuelle Bribosia, Isabelle Rorive & Laura Van den Eynde, Same-Sex Marriage: Building an Argument Before the European Court of Human Rights in Light of the US Experience, 32 BERKELEY J. INT’L L. 1, 6 (2014).
5 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶ 1; Press Release, supra note 1, at 2.
6 See LYNN D. WARDLE, MARK P. STRASSER & LYNNE MARIE KOHM , FAMILY L AW FROM MULTIPLE P ERSPECTIVES 114–15 (2014).
7 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶¶ 3–14; Press Release, supra note 1, at 2.
8 See Benoît de Boysson et al., France: Review of Family Law in 2010, in THE INTERNATIONAL SURVEY OF F AMILY L AW 187, 190 (Bill Atkin & Fareda Banda eds., 2011).
9 Id.
10 Angélique Devaux, The New French Marriage in an International and Comparative Law Perspective, 23 T UL. J. INT’ L & COMP . L. 73, 76 (2015).
11 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶¶ 3, 7–8; see also Press Release, supra note 1, at 2.
12 See Bribosia, Rorive, & Van den Eynde, supra note 4, at 6 (noting that the act of celebrating the marriage was civil disobedience).
13 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶ 12.
14 Id. ¶ 13.
15 Id. ¶¶ 14–15.
16 Id. ¶ 16; see also Convention for the Protection of Human Rights and
Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S 221 [hereinafter ECHR]
(guaranteeing the right to private life and family).
17 Chapin, App. No. 40183/07, Eur. Ct. H.R. ¶ 20.

ABSTRACT

In June of 2015, a young South African girl named Zizipho Pae (“Zizi”), who was the Acting President of the Student Representative Council (“SRC”) of the University of Cape Town (“UCT”) representing a student body of approximately 27,000, posted as follows on her personal Facebook page: “We are institutionalizing and normalising sin. May God have mercy on us.” Even though the post did not say this explicitly, her post was intended as a response to Obergefell v. Hodges. In protest, members of the University’s Queer Revolution broke into her office and, among other things, vandalized it, then took off their clothes, took pictures, and posted them on her Facebook page. They also filed a “hate speech” complaint against her with the University and reportedly also with the South African Human Rights Commission, had her expelled as member of the SRC without proper reasons or process, and almost got her scholarship revoked. The group quickly accomplished all of this despite the fact that there is a cut and dry right to the freedom of speech and expression in the South African Constitution. After requesting the University to review the SRC’s decision to expel her, the Vice-Chancellor of the University reinstated Zizi as member of the SRC because her post was protected by the Constitution. However, what if Zizi had been a student at a university in the United States? Could she be removed, prosecuted, or expelled for her statement on Facebook?

Oliver Wendell Holmes once said, “The best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out.” Freedom of speech has long been a stalwart principle that has kept the United States the most powerful nation in the world, but in recent years, anti-discrimination, harassment, and hate speech codes within public university student handbooks have severely limited students’ freedom of speech and expression and have threatened that foundational freedom. This Note suggests that current case law in the United States is not strong enough or clear enough to protect students’ right to freely exchange beliefs in the free marketplace of ideas because oftentimes university policy will either trump a student’s constitutional right or unconstitutionally punish students for constitutional speech because university administrators are ignorant of the law. This Note also proposes an alternative framework and solution that allows for courts to balance both the university’s authority to limit speech according to legitimate pedagogical concerns and the students’ right to freely express themselves and exchange ideas as they should so see fit. Incorporating a clear framework in student handbooks and in case law that honors this balance according to the law will promote consistency, reliability, and objective analysis by reviewing disciplinary hearing boards and courts, and will ultimately ensure an appropriate balance between the freedom of speech and university interests.

INTRODUCTION

In response to a United States Supreme Court case, 1 a young South African girl named Zizi Pae posted a thought on her Facebook wall just like she did most every other day: “We are institutionalizing and normalizing sin! . . . May God have mercy on us.”2 Then, June 28, 2015 turned into a quite unordinary day for her. Zizi was the acting President of the Student Representative Council (“SRC”) of a student body of almost 27,000. 3 A few hours after she posted, her office was broken into by members of the campus group Queer Revolution, 4 had her Scriptures ripped off the walls,5 and had semi-naked pictures of the members in her office posted on her Facebook page with the caption “[We are] [b]ringing sin into the Holy SRC [office] of Zizipho Pae.”6

The University of Cape Town Queer Revolution (“UCTQR”) demanded Zizi’s resignation “on account of her queer antagonistic bigotry,” 7 so the SRC immediately removed her from her presidential duties and then attempted to hold a formal hearing on the matter.8 The hearing unfortunately dissolved into a shouting match at which members of the Lesbian, Gay, Bisexual, and Transgender Plus (LGBT+) community took their clothes off and commanded the chairman to rule in their favor,9 so the chairman adjourned the meeting and left the room. Unabated, the remaining members quickly replaced him with a newly elected chairman, and the members voted to dismiss Zizi from the SRC without following proper due process procedures and without giving her a chance to testify on her behalf according to those same procedures. 10 The UCTQR immediately filed a complaint against her with the Human Rights Commission,11 and a lobbying push began with the goal of seeing Zizi lose her scholarships to the university. 12 She was called an “idiot,” a “homophobe,” an “ignorant b****”,13 and received hundreds of hate mail messages in her Facebook inbox. 14 Then a Member of Parliament, Mr. Marius Redelinghuys, began to speak out against her and demand that she retract her statement through “a long series of mocking, insulting and other pro-homosexual messages which amount[ed] to harassment.” 15

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†B.A. 2011, Furman University; J.D. 2017, Regent University School of Law.
1 Michael Gryboski, ‘May God Have Mercy on Us,’ Says Christian Cape Town Student Forced Out of Leadership Role for Facebook Comment Opposing Gay Marriage, CP WORLD (July 28, 2015), http://www.christianpost.com/news/may-god-have-mercy-on-us-says-christian-cape-town-student-forced-out-of-leadership-role-for-facebook-comment-
opposing-gay-marriage-142005/. Obergefell v. Hodges, 135 S. Ct. 2584, 2619, 2642–43 (2015), legalized same-sex marriage within all jurisdictions in the United States.
2 Zizipho Pae, FACEBOOK (June 28, 2015), https://www.facebook.com/zizipho.maduna/posts/1146044868755871.
3 Statistics, U NIV . OF CAPE T OWN, http://www.uct.ac.za/about/intro/statistics/ (last visited Dec. 22, 2015) (noting the total number of students enrolled as of 2014).
4 UCT Student Leader Victimised Over Christian Viewpoint on Same-Sex Marriage, GATEWAY N EWS (July 2, 2015), http://gatewaynews.co.za/uct-student-leader-victimised-over-christian-viewpoint/.
5 Christian Student Threatened for Opposing Gay Marriage on Facebook,
CHRISTIAN INST. (July 16, 2015), http://www.exministries.com/christian-student-threatened-for-opposing-gay-marriage-on-facebook/.
6 Ra’eesa Pather, UCT Queer Community Sets Its Sights on Pae, THE DAILY VOX (July 3, 2015), http://www.thedailyvox.co.za/uct-the-queer-movement-has-been-born/; see Carlo Petersen, UCT Homophobe Gets Booted Out, IOL CAPE TIMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
7 Id.
8 UCT SRC, FACEBOOK (June 30, 2015), https://www.facebook.com/uct.src/photos/a.905100332874551.1073741833.895318217186096/94797093525417/.
9 Freedom of Religion S. Afr., My Story by Zizipho Pae-Part II, Y OUT UBE (Aug. 11, 2015), https://www.youtube.com/watch?v=HTMuJJlIrTY [hereinafter FORSA].
10 UCT SRC, SRC Minutes from the 21st of July 2015, F ACEBOOK (July 21, 2015), https://www.facebook.com/uct.src/photos/a.962140463837204.1073741838.895318217186096/962140477170536/?type=3&theater.
11 Carlo Petersen, UCT Homophobe Gets Booted Out, IOL C APE T IMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
12 Pather, supra note 6.
13 Andre Viljoen, Christian Leaders Speak Out Against Victimisation of “Expelled” UCT Student Leader, GATEWAY NEWS (July 23, 2015), http://gatewaynews.co.za/christian-leaders-speak-out-against-victimisation-of-uct-student-leader/.
14 Freedom of Religion S. Africa, supra note 9.
15 Carlo Petersen, DA MP’s Comments ‘Unacceptable’, IOL CAPE T OWN (July 28, 2015, 2:23 PM), http://sbeta.iol.co.za/news/politics/da-mp-s-comments-unacceptable-1891827.

INTRODUCTION

In the wake of the U.S. Supreme Court ruling in Obergefell v. Hodges,1 in which the Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution, promoting the rights of lesbian, gay, bisexual, and transgender (“LGBT”) individuals and building a more accepting society towards these non-conventional sexual orientations seem to have become a plausible goal of the U.S. society. Many LGBT rights activists argue that sexual orientation is an immutable characteristic and not a preference, therefore our society should create a climate where the LGBT individuals “can live openly without discrimination and enjoy equal rights, personal autonomy, and freedom of expression and association.”2 Exalting the idea of equal protection, personal autonomy, and right of privacy led the public to advocate for the LGBT rights.

However, such a consensus undoubtedly affect important aspects of everyone else’s lives. In particular, the freedom of parents to freely control sex education for their children, cultivate important values in their lives, and make medical decisions for them have been slowly but surely infringed upon. 3 Moreover, our rights to free speech and free exercise of religion under the First Amendment have been also infringed upon as we are often compelled to refrain from making religiously motivated statements especially in a professional work environment. 4 Respecting and promoting LGBT rights is one thing, but being forced to accommodate them in a way that denies our own fundamental rights in relation to our very own families and professional lives is another.

One good example, which is the main topic of this Note, is how our society criticizes any Sexual Orientation Change Efforts (“SOCE”) put forth even within the boundaries of our own family life. The term, SOCE is defined in many State statutes as “the practice of seeking to change a person’s sexual orientation,” including “efforts to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.” 5 It is widely referred to as a “conversion” or “reparative” therapy in which mental healthcare practitioners use different types of methods to help LGBT individuals convert back to a life of heterosexuality.6

The methods used in SOCE include behavioral techniques, cognitive behavioral techniques, and psychoanalytic techniques, as well as other medical, religious, and spiritual approaches.7 While some are known to employ extreme and physically intrusive tactics, such as hormone therapy, electric shock, and nausea-inducing drugs, the most common practice used by healthcare practitioners today is the “talk therapy,” which does not involve any physical intrusions on patients.8 Most of the contemporary SOCE therapies only involves verbal communication that discusses “traditional gender-appropriate behaviors” and “biblical perspectives” on sexual orientations.9

However, such a consensus undoubtedly affect important aspects of everyone else’s lives. In particular, the freedom of parents to freely control sex education for their children, cultivate important values in their lives, and make medical decisions for them have been slowly but surely infringed upon. 3 Moreover, our rights to free speech and free exercise of religion under the First Amendment have been also infringed upon as we are often compelled to refrain from making religiously motivated statements especially in a professional work environment. 4 Respecting and promoting LGBT rights is one thing, but being forced to accommodate them in a way that denies our own fundamental rights in relation to our very own families and professional lives is another.

A step to legally resist SOCE was made by several States when they completely prohibited their mental healthcare practitioners from administering SOCE therapies to minors regardless of whether the minor and his or her parents consented to the therapy.10 Furthermore, even President Obama has also recently called for banning medical practitioners from administering SOCE therapies on LGBT youth. 11 Although these States’ ban on SOCE are enacted to regulate licensed healthcare providers, on a deep level, the most affected stakeholders are in fact private individuals such as parents who are consequently deprived of their fundamental rights to make important decisions pertaining to raising their children according to their own family and religious values.

One good example, which is the main topic of this Note, is how our society criticizes any Sexual Orientation Change Efforts (“SOCE”) put forth even within the boundaries of our own family life. The term, SOCE is defined in many State statutes as “the practice of seeking to change a person’s sexual orientation,” including “efforts to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.” 5 It is widely referred to as a “conversion” or “reparative” therapy in which mental healthcare practitioners use different types of methods to help LGBT individuals convert back to a life of heterosexuality.6

INTRODUCTION

A recent study published by Human Rights Watch in December 2014, graphically documented the abuse of self-identifying homosexuals in the Russian Federation.¹ The report examined a total of seventy-eight cases in sixteen urban centers that have occurred since 2012.² In addition to soft discrimination (e.g., employment termination and verbal harassment), the report described various harrowing and violent personal attacks: forced sodomy with a bottle in public, and the brutal tearing-out of a transgender woman’s toenails after being stripped and abandoned in a forest.³ These events often are video-recorded and subsequently posted across internet domains to ensure maximum humiliation.⁴ Furthermore, attacks that have resulted in permanent blindness, shootings,⁵ and the gruesome murder of two men who were tortured to death on separate occasions in 2013, have been attributed singularly to the victims’ homosexual orientation.⁶

While the legal persecution and statutory prosecution of homosexuals on the numerous iterations of Russian territory is not novel,⁷ the rapid and unprecedented increase in vigilante activities against them in the previous two years alone is imputed wholly to the passing of a landmark bill on June 29, 2013.⁸ An almost universal consensus of opinion assigns responsibility for the present and pervasive vitriol to this one particular law.⁹ Allegedly written to protect minors against homosexual propaganda,¹⁰ the Russian State Duma authored¹¹ and President Vladimir Putin perforce signed Federal Law № 135-FZ (the “New Law”),¹² a brief amendment to the original federal law—On the Protection of Children from Information Detrimental to Their Health and Development.¹³ The New Law established penalties for those convicted of disseminating certain proscribed information to minors¹⁴ pursuant to the promotion of homosexuality.¹⁵ Stark evidence for the direct correlation between the enactment of the New Law and the consequent outbreak of abuse is likewise illustrated by the fact that Russia decriminalized homosexuality in 1993.¹⁶ To wit, a markedly noticeable increase in the number of attacks began only in 2013, when the New Law was enacted.¹⁷

Current scholarship positions the controversy over the New Law squarely in the arena of human rights. The New Law is seen as a restriction on the fundamental exercise of free speech, and more importantly as a surreptitious vehicle for state discrimination against practicing homosexuals.¹⁸ Recognized legal experts argue effectively that the New Law is a direct violation of the Russian Federation’s obligations under various international conventions—the most significant being the European Convention on Human Rights, which Russia ratified in 1998.¹⁹

Conversely, other experts have cast a wider proverbial net, and have argued persuasively that human rights in Russia, including therefore the New Law and the Russian Federation’s attendant international commitments under various international conventions, must be understood in a much broader context (i.e., cultural exceptions). The present Note reviews a recently published article espousing the wellreasoned belief that the New Law must be governed by the European Convention on Human Rights,²⁰ and surveys three contextual arguments: national identity,²¹ national sovereignty,²² and by analogy—national autonomy.²³ The Note ultimately posits a new approach—a cultural exception not yet thoroughly investigated or advanced, and which therefore, touches immediately upon the validity of the New Law: Russian customary/indigenous law is a human right protected under (1) the International Covenant of Economic, Social and Cultural Rights;²⁴ (2) the International Covenant on Civil and Political Rights;²⁵ and (3) the United Nations Declaration on the Rights of Indigenous Peoples.²⁶

While each of the three contextual arguments may advocate indirectly for the appreciation of customary law as it applies positively to human rights in Russia,²⁷ none attempt to link traditional indigenous rights with modern human rights via a relevant international agreement. The present Note attempts to do so—with trepidation and humility as the topic is innately sensitive. The intent is to explore whether the New Law is valid precisely because it is protected as a compelling expression of “cultural free speech” and/or an authentic product of indigenous Russian law. There is no intent to justify, excuse or in any way condone the prejudiced malcontents, whether private or public,²⁸ who have perpetrated the horrendous accusations and crimes against homosexuals in Russia that the New Law seems to have so vigorously engendered.

This Note is divided into four sections: section one—The Origins of the New Law; section two—The Exclusivity Argument: The New Law Violates the European Convention on Human Rights; section three—The Contextual Argument: The New Law as Cultural Exception to the European Convention on Human Rights; and section four—The New Law as Russian Customary Law Under International Agreements.

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1 HUMAN RIGHTS WATCH, LICENSE TO HARM (2014), https://www.hrw.org/report/2014/12/15/license-harm/violence-and-harassment-against-lgbt-people-and-activists-russia [hereinafter LICENSE].
2 Alexey Eremenko, Violence Against LGBTs Getting Worse in Russia, Study Says, MOSCOW TIMES (Dec. 15 2014), http://www.themoscowtimes.com/news/article/violenceagainst-lgbts-getting-worse-in-russia-study-says/513341.html.
3 Id.
4 Russia: Impunity for Anti-LGBT Violence, HUMAN RIGHTS WATCH (Dec. 15, 2014), http://www.hrw.org/news/2014/12/15/russia-impunity-anti-lgbt-violence.
5 HUMAN RIGHTS CAMPAIGN FOUND., RUSSIA: YEAR IN REVIEW REPORT 6–7 (2015).
6 Steve Gutterman, Gay Man Killed in Russia’s Second Suspected Hate Crime in Weeks, REUTERS (June 3, 2013), http://www.reuters.com/article/us-russia-killing-gayidUSBRE95209Z20130603.
7 See Ben De Jong, “An Intolerable Kind of Moral Degeneration”: Homosexuality in the Soviet Union, 8 REV. SOCIALIST L. 341, 341–42, 344–45 (1982).
8 Gabrielle Tétrault-Farber, Russia’s ‘Gay Propaganda’ Law One Year On, MOSCOW TIMES (June 29, 2014), http://www.themoscowtimes.com/news/article/russias-gaypropaganda-law-one-year-on/502697.html.
9 Keith Perry, More than 200 Leading Authors Protest Against Russia’s Anti-Gay and Blasphemy Laws, TELEGRAPH (Feb. 6, 2014), http://www.telegraph.co.uk/news/worldnews/europe/russia/10620893/More-than-200-leading-authors-protest-againstRussias-anti-gay-and-blasphemy-laws.html.
10 Maria Issaeva & Maria Kiskachi, Immoral Truth vs. Untruthful Morals? Attempts to Render Rights and Freedoms Conditional upon Sexual Orientation in Light of Russia’s International Obligations, 2 RUSS. L.J. 81, 89 (2014). Homosexual propaganda is not defined under Russian law, and is otherwise legislatively ambiguous; however a thorough analysis of the relevant case law establishes perhaps a few parameters that make the definition somewhat more transparent.
Per the Constitutional Court of Russia, homosexual propaganda is “an activity of ‘purposeful and uncontrolled dissemination of information, detrimental to health [and] moral . . . development forming a distorted image of the social equality of traditional and non-traditional relationships.’” Further, the traditional relationships of “family, motherhood and childhood . . . are those values which ensure continuous change of generations and . . . development of the whole multinational people of the Russian Federation.” Id.; Russia’s Anti-gay ‘Propaganda Law’ Assault on Freedom of Expression, AMNESTY INT’L (Jan. 25, 2013), https:/www.amnesty.org/en/latest/news/2013/01/russia-anti-gay-propagandalaw-assault-on-freedom-expression/. Per the Supreme Court of Russia, homosexual propaganda is “an activity of natural or legal persons consisting in the dissemination of information, aimed at forming in the consciousness certain attitudes and stereotypes, or encouraging persons to whom it is addressed to commit something or refrain from it.” That is, homosexual and propaganda have “well-known meanings”; and homosexual propaganda occurs when (1) “[it] denies traditional family values,” and (2) “a child cannot critically assess incoming information and that his or her own interest in non-traditional relationships can easily be incited despite the fact that such interest is not ‘objectively based’ on the physiological characteristic of the child.” Issaeva & Kiskachi, supra, at 90.
Further, the Russian executive agency tasked with enforcing the New Law, Roskomnadzor, has enumerated its own criteria for identifying homosexual propaganda: “[information] arguing that traditional families do not meet the needs of modern society or the ‘modern individual’ . . . websites that publish ‘out-of-context’ statistics about children adopted by gay and straight couples . . . using ‘attractive’ or ‘repelling’ images to discredit traditional [families] and propagate alternative family models . . . or publishing lists of famous living or deceased gay individuals.” Id. at 94–95. Perhaps the best definition, however, is provided in the official commentary or explanatory note to the New Law: “The promotion of homosexuality has sharply increased in modern-day Russia. This promotion is carried out via the media as well as via the active pursuit of public activities which try to portray homosexuality as a normal behaviour. This is particularly dangerous for children and young people who are not able to take a critical approach to this avalanche of information with which they are bombarded on a daily basis. In view of this, it is essential first and foremost, to protect the younger generation from exposure to the promotion of homosexuality . . . . It is therefore essential to put in place measures which provide for the intellectual, moral and mental well-being of children, including a ban on any activities aimed at popularising homosexuality. A ban of this kind of propaganda as an activity involving the intentional and indiscriminate spreading of information which may be injurious to physical, moral and spiritual wellbeing, including instilling distorted ideas that society places an equal value on traditional and non-traditional sexual relations amongst people who are incapable, due to their age, of critically assessing this information on their own, cannot in itself be considered a breach of the constitutional rights of citizens . . . . The bill confers the right of drawing up charge sheets relating to activities carried out in public which are aimed at promoting homosexuality to minors on officials of the authorities responsible for internal affairs (the police) and of considering any resulting cases – on the courts.” HUMAN DIGNITY TRUST, RUSSIA: THE ANTI-PROPAGANDA LAW 1 (2014).
11 See AMNESTY INT’L, supra note 10. The Russian State Duma voted almost unanimously to pass the New Law in its first reading – only one representative voted against and one abstained. Id.
12 HUMAN DIGNITY TRUST, supra note 10; Federal’nyĭ zakon ot O vnesenii izmeneniĭ v stat’i͡u 5 Federal’nogo zakona “O zashchite deteĭ ot informat͡sii, prichini͡ai͡ushcheĭ vred ikh zdorov’i͡u i razvitii͡u” i otdel’nye zakonodatel’nye akty rossiĭskoĭ federat͡siiv t͡seli͡akh zashchity deteĭ ot informat͡sii, propagandirui͡ushcheĭotrit͡sanie tradit͡sionnykh semeĭnykh t͡sennosteĭ” [Federal Law on Amending Article 5 of the Federal Law on Protecting Children from Information Causing Harm to Their Health and Development and Certain Legislative Acts of the Russian Federation for the Purposes of  Protecting Children from Information Conducive to the Negation of Traditional Family Values] June 2013, No. 135. The New Law’s most salient and contested alteration occurs in Article 3(2)(b), which states “[p]ropaganda of non-traditional sexual relations among minors, manifested in the distribution of information aimed at forming non-traditional sexual orientations, the attraction of non-traditional sexual relations, distorted conceptions of the social equality of traditional and non-traditional sexual relations among minors, or imposing information [about] non-traditional sexual relations [that] evoke interest in these kinds of relations if these actions are not punishable under criminal law[, subject citizens] to administrative fines . . . in the amount of 4,000–5,000 rubles; for administrative officials, 40,000–50,000 rubles; for legal entities, 800,000–1,000,000 rubles or suspension of business activities for up to 90 days.” Russia’s “Gay Propaganda” Law: Russian Federal Law #135-FZ, THE SCHOOL OF RUSS. AND ASIAN STUDIES (Aug. 21, 2013), http://www.sras.org/russia_gay_ propaganda_law.
The approximate USD value of the fines is difficult to determine due to the Russian currency’s recent severe fluctuations. However, rounding to an average of 60 rubles per 1 USD at today’s rate, the fines total $67–$83 for citizens; $667–$830 for administrative officials; and $13,333–$16,667 for legal entities. See CENT. BANK OF RUSS. FED’N, http://www.cbr.ru/eng/ (last visited Mar. 25, 2016).
13 Federal’nyĭ zakon ot (red. Ot 14.10.2014) O zashchite deteĭ ot informat͡sii, prichini͡ai͡ushcheĭ vred ikh zdorov’i͡u i razvitii͡u [Federal Law on the Protection of Children Against Information that may Be Harmful to Their Health and Development (with Amendments and Additions)] Dec. 2010, No. 436; see also Russia: Use Leadership to Repeal Discriminatory Propaganda Law, HUMAN RIGHTS WATCH (Sept. 5, 2013), https://www.hrw.org/news/2013/09/05/russia-use-leadership-repeal-discriminatorypropaganda-law [hereinafter Russia: Use Leadership to Repeal Discriminatory Propaganda Law].
14 See Russia: Use Leadership to Repeal Discriminatory Propaganda Law, supra note 13. Minors in Russia are defined generally as citizens under the age of eighteen, though there are exceptions. Russia (née Soviet Union) ratified the International Convention of the Rights of the Child (the “CRC”) in 1990; however, “[d]ifferent pieces of Russian legislation do not follow the definition of children provided by the CRC uniformly. Despite the fact that article 1 of the CRC states that everyone under eighteen years of age is recognized as a child, most specialized health care programs in Russia do not include children older than fourteen, or older than sixteen, if a child is disabled. Parental consent for medical procedures is required for children under sixteen, and tax legislation treats minors under sixteen, and between sixteen and eighteen years of age differently.” Children’s Rights: Russian
Federation, LIBRARY OF CONGRESS, http://www.loc.gov/law/help/child-rights/russia.php (last visited Mar. 25, 2016); Convention on the Rights of the Child, U.N. TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&
lang=en. (last visited Mar. 25, 2016); GRAND VALLEY STATE UNIV. HUMAN RESEARCH REVIEW COMM., G-9: HRRC GUIDANCE ON AGE OF MAJORITY/ADULTHOOD IN USA & OTHER COUNTRIES 3 (2012), https://www.gvsu.edu/cms3/assets/E122C984-F34A-F437-8340DB5CD900C177/procedures/g-9._guidance_on_age_of_majority_in_us_and_foreign_countries._ 0725.2012.pdf.
15 See Russia: Use Leadership to Repeal Discriminatory Propaganda Law, supra note 13. The limits of the New Law are still being tested. For example, in February 2014, a district court in central Russia found a woman not guilty of breaching the New Law for creating a social media site/forum on Facebook to assist teenagers struggling with homosexuality. The case has been appealed. Russian Journalist Accused of Anti-Gay ‘Propaganda’ Defeats Charges, AMNESTY INT’L UK (Jan. 29, 2016), https://www.amnesty.org.uk/russia-journalistelena-klimova-lgbt-gay-propaganda; Tom Balmforth, Children-404: LGBT Support Group in Kremlin’s Crosshairs, RADIO FREE EUR./RADIO LIBERTY (Nov. 21, 2014), http://www.rferl.org/content/russia-lgbt-children-404-propaganda/26703500.html. Further, sympathetic heterosexuals who encourage the non-discrimination of homosexuals may be liable under the New Law: “Ekaterina Bogach, a Spanish language teacher from St. Petersburg, was targeted by a homophobic group for her support of LGBT rights. Media reports said that in November 2013, the group began an online campaign harassing Bogach and claiming that her involvement with the Alliance of Heterosexual People for LGBT Equality was harmful to her students. They also sent a letter to the city committee on education calling Bogach a ‘supporter of perverts’ and harmful to her students’ ‘psyche,’ the media reports said. Despite the harassment campaign against her, Bogach kept her job.” Russia: Anti-LGBT Law a Tool for Discrimination: An Anniversary Assessment, HUMAN RIGHTS WATCH (June 29, 2014), http://www.hrw.org/news/2014/06/29/russia-antilgbt-law-tool-discrimination.
16 Matthew Schaaf, Advocating for Equality: A Brief History of LGBT Rights in Russia, HARRIMAN MAG., Feb. 10, 2014, at 23–24. Homosexuality was initially decriminalized in the Soviet Union immediately succeeding the Russian Revolution in 1917, but recriminalized again in 1933. Jong, supra note 7, at 342.
17 See LICENSE, supra note 1.
18 Russian Constitutional Court Rules on Anti-Gay Law, HUMAN RIGHTS FIRST (Sept. 26, 2014), http://www.humanrightsfirst.org/press-release/russian-constitutional-court-rulesanti-gay-law.
19 Issaeva & Kiskachi, supra note 10, at 96–101; Frédéric Pinard, Council of Europe: Russia Ratifies European Convention on Human Rights, IRIS MERLIN, http://merlin.obs.coe.int/iris/1998/6/article6.en.html (last visited Mar. 25, 2016).
20 See Issaeva & Kiskachi, supra note 10, at 83.
21 See Petr Preclik, Culture Re-introduced: Contestation of Human Rights in Contemporary Russia, 37 REV. CENT. AND EAST EUR. L. 173, 173 (2012).
22 Mikhail Antonov, Conservatism in Russia and Sovereignty in Human Rights, 39 REV. CENT. & EAST EUR. L. 1, 2 (2014).
23 See Merilin Kiviorg, Collective Religious Autonomy Versus Individual Rights: A Challenge for the ECtHR?, 39 REV. CENT. AND EAST EUR. L. 315, 315 (2014).
24 See International Covenant on Economic, Social and Cultural Rights arts. 1, 5, adopted Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
25 See International Covenant on Civil and Political Rights arts. 1, 5, adopted Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
26 See G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous People, at 1 (Oct. 2, 2007) [hereinafter UNDRIP].
27 Preclik, supra note 21; Antonov, supra note 22; Kiviorg, supra note 23.
28 While the majority of attacks are from non-state actors, semi-official acquiescence is tolerated due to deliberate inaction. See Susannah Cullinane, Human Rights Watch Criticizes Russia, Says It Fails to Protect LGBT People, CNN (Dec. 15, 2014), http://www.cnn.com/2014/12/15/world/europe/russia-hrw-gay-report/(“The police officer who took his complaint said to him, ‘It’s all right, you’re gay so it’s normal that you were attacked. Why would you need to file a complaint against anyone?’”); see also David M. Herszenhorn, Gays in Russia Find No Haven, Despite Support from the West, N.Y. TIMES (Aug. 11, 2013), http://www.nytimes.com/2013/08/12/world/europe/gays-in-russia-find-no-haven-despitesupport-from-the-west.html?_r=0 (“Few gay people in Russia openly acknowledge their sexual orientation, and those who do are often harassed. When some gay people protested the propaganda law by kissing outside the State Duma, the lower house of Parliament, police officers stood by and watched as the demonstrators were doused with water and beaten by antigay and religious supporters of the bill.”); see also Kseniya A. Kirichenko, Study on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity Legal Report: Russian Federation, DANISH INST. FOR HUMAN RIGHTS 70 (2009), http://www.coe.int/t/Commissioner/Source/LGBT/RussiaLegal_E.pdf (Tambov Governor Oleg Belin made an aggressively offensive pre-New Law statement in 2008: “Faggots must be torn apart and their pieces should be thrown in the wind!”).

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† J.D. 2016, Regent University School of Law.

INTRODUCTION

Much is at stake in the developing conflicts between freedom of conscience and lesbian, gay, bisexual, and transgender (LGBT) policies in international human rights law. Conscience is the human faculty with which individuals seek moral truth.¹ Over centuries, as evil roused the conscience of previous generations, they recognized the existence of human rights, and called upon states to protect these rights. In the twentieth century, drafters of the international human rights framework cited our endowment with conscience and reason as evidence of our inherent human “dignity,” the basis for universal and inalienable human rights.²

Because the creators of the international human rights system had a high view of conscience, both as a faculty for discerning moral truth and evidence of human dignity, they identified it as a “core human right”; and they created the strongest level of legal protection for it.³ As conflicts between freedom of conscience, state interests, and other rights have arisen, legal interpreters have consistently upheld freedom of conscience. However, over the past decade, conflicts between freedom of conscience and new LGBT policies (particularly legislatively and court-created same-sex marriage and sexual orientation nondiscrimination mandates) have grown. These conflicts threaten the status of freedom of conscience, both as a core human right and as foundational to the human rights system.

I. ORIGINS OF HUMAN RIGHTS

A. Where Do International Human Rights Come From?

No matter what human rights you believe in, this is an important question. For what you believe about the source of human rights will largely determine which rights you consider to be universal and how you believe the human rights system should be sustained and strengthened.

Philosophers, theologians, and legal scholars from many different time periods, have recognized conscience as a source of our rights. From Socrates to Thomas Aquinas, men have sought to determine questions about rights in their conscience.⁴ The assertion that conscience is the human faculty for apprehending moral truth may seem obvious, but it was not until the seventeenth century that thinkers began to articulate the relationships between conscience, reason, and rights.

In 1625, Dutch legal scholar Hugo Grotius, the “Father of International Law,” identified “right reason” (the ability to discern right from wrong) as a uniquely human power.⁵ Grotius and many others of his time saw human conscience as evidence that God made individuals in His own image (Imago Dei).⁶ He also believed that the power to discern right from wrong necessitated certain rights.⁷ A century after Grotius, Swiss scholar Emmerich de Vattel articulated the role of states vis-à-vis each other. In his watershed book, The Law of Nations, he asserted that states have duties to protect each other’s citizens from injury.⁸ Taken together, Grotius’ view of our unique human nature and Vattel’s view of the state, created the basis for an international human rights system.⁹ Neither saw the state as the source of human rights but as trustee of the duty to protect rights.¹⁰ 

Conscience has also been the engine of human rights action. In 1789, William Wilberforce, the “Conscience of England,” showed his nation that African and West Indian slaves were no less human than their masters and possessed human rights in no less measure.¹¹ In his speech “On the Horrors of the Slave Trade,” he made this appeal:

Wilberforce’s Christian beliefs motivated him to action.¹³ But, in his appeal to the nation, he did not rely on shared religious beliefs. He called upon the conscience of all citizens to recognize the evil of the slave trade and do their part in ending it. Wilberforce knew the human rights of slaves hinged upon the ability of men to apprehend truth in their conscience.

Florence Nightingale revolutionized medical care in armed conflict after seeing soldiers die needlessly in the Crimean War in 1854.¹⁴ She wrote, “[e]very man stands upon his own conscience; everything is between himself and his God.”¹⁵ Conscience caused the earliest human rights activists to turn ideas into action to protect the vulnerable.

In the twentieth century, World War II and the Holocaust shocked the collective conscience of the world. The post-World War II generation vowed “never again” and created a system of international law to protect the human rights of every person. In 1947, the United Nations (UN) commissioned American First Lady Eleanor Roosevelt, Lebanese Christian leader Charles Malik, Chinese philosopher Peng Chun Chang, French diplomat René Cassin, and Canadian lawyer John Peters Humphrey to draft the Universal Declaration of Human Rights (UDHR).¹⁶ They came from different nations, cultures, and religions.¹⁷ Roosevelt was Protestant.¹⁸ Cassin was Jewish.¹⁹. Chang was a noted Confucian scholar.²⁰ Malik was Greek Orthodox.²¹ They could not agree on divinity, but all saw the need for a transcendent basis for human rights.

They found this in human dignity—Article 1 of the UDHR states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience . . . .”²² 

Like Grotius and Vattel, the drafters found that man’s endowed qualities of reason and conscience are evidence of our unique human dignity. This dignity requires all states to recognize the rights of all humans. The clear lesson of World War II was that an unchecked state could produce unimaginable evil and suffering and abhorrent violations of individual rights.²³ Therefore, the UDHR made clear that human dignity and endowed reason and conscience was the source of human rights, not the state.²⁴ To directly safeguard individual conscience, it created the strongest legal protection possible. The UDHR itself did not create rights—it merely recognized their existence.²⁵

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1 See Conscience, BLACK’ S LAW DICTIONARY (10th ed. 2014).
2 See G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 1 (Dec. 10, 1948) [hereinafter UDHR].
3 See International Covenant on Civil and Political Rights art. 4, opened for signature Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 AM . U.L. REV . 1, 17–19 (1982)(explaining that while the ICCPR admits that states have the authority to derogate certain human rights in times of emergency, the ICCPR categorizes the right to conscience as an inalienable right that never can be lawfully derogated).
4 Robert P. Lawry, Ethics in the Shadow of the Law: The Political Obligation of a Citizen, 52 CASE W. RES. L. REV. 655, 718–19 (2002) (discussing the attempts of Socrates, Aquinas, Thoreau, Martin Luther King, Jr. et. al. to proffer an acceptable solution in instances when conscience and the duty to obey the law are in conflict).
5 1 HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 150–153 (Richard Tuck ed., Liberty Fund 2005) (1625), http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/grotius/Law2.pdf; Benjamin Strauman, Early Modern Sovereignty and Its Limits, 16 THEORETICAL INQUIRIES L. 423, 429–30 (2015) (noting that Cicero and Grotius similarly attribute right
reason to humans alone).
6 Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, in INTERNATIONAL LAW AND RELIGION (Martti Koskenniemi et al. eds.) (forthcoming) (manuscript at 2–3), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665553.
7 See GROTIUS, supra note 5, at 1132 & n. 8.
8 EMER DE VATTEL, THE LAW OF NATIONS, 262–63 (Richard Whatmore & Béla Kapossy eds., Liberty Fund 2008) (1758), http://oll.libertyfund.org/titles/2246.
9 See Evan J. Criddle, Standing for Human Rights Abroad, 100 CORNELL L. REV. 269, 299–332 (2015).
10 See id. at 308, 313, 332 (noting that the “fiduciary theory” based on the work of Vattel and Grotius provides for an international law system where human rights are vested “exclusively in human beings,” not the state).
11 See William Wilberforce, On the Horrors of the Slave Trade, Speech in the House of Commons (May 12, 1789), in 4 THE WORLD’S FAMOUS ORATIONS 60, 68 (William Jennings Bryan & Francis W. Halsey eds., 1906) (arguing against the inhumanity of the slave trade
that caused the “effusion of human blood,” set “fellow creatures a-hunting each other for slaves,” and filled fairs and markets with “human flesh”).
12 Id. at 69–70 (emphasis added).
13 Michael V. Hernandez, A Flawed Foundation: Christianity’s Loss of Preeminent Influence on American Law, 56 RUTGERS L. REV. 625, 681 n. 348 (2004).
14 See Tsvetelina Gerova-Wilson, Nursing Is Not a Lesser Included Profession: Why Physicians Should Not Be Allowed to Establish the Nursing Standard of Care, 16 QUINNIPIAC HEALTH L.J. 43, 45 n. 12 (2012–2013) (describing the impact of Nightingale’s reforms on the practice of nursing and treating those wounded in war).
15 Letter from Florence Nightingale (Feb. 17, 1848), in 7 FLORENCE NIGHTINGALE’S EUROPEAN TRAVELS 264, 265 (Lynn McDonald ed., 2004) (ebook) (writing these words in reflecting upon Michelangelo’s painting, The Last Judgment, and perhaps revealing the associations she made between conscience, duty, rights, and religion).
16 See History of the Document, UNITED NATIONS, http://www.un.org/en/sections/universal-declaration/history-document/ (last visited Feb. 2, 2016).
17 See id.
18 Mary Ann Glendon, God and Mrs. Roosevelt, FIRST THINGS (May 2010), http://www.firstthings.com/article/2010/05/god-and-mrs-roosevelt.
19 JAY WINTER & ANTOINE PROST, RENÉ CASSIN AND HUMAN RIGHTS: FROM THE GREAT WAR TO THE UNIVERSAL DECLARATION 318 (2013).
20 Mary Ann Glendon, Foundations of Human Rights: The Unfinished Business, 44 AM. J. JURIS. 1, 1 (1999).
21 Drafting of the Universal Declaration of Human Rights, UNITED NATIONS,
http://research.un.org/en/undhr/draftingcommittee (last visited Feb. 2, 2016).
22 UDHR, supra note 2, art. 1 (emphasis added).
23 See Karina Michael Waller, Intrastate Ethnic Conflicts and International Law: How the Rise of Intrastate Ethnic Conflicts Has Rendered International Human Rights Laws Ineffective, Especially Regarding Sex-Based Crimes, 9 AM. U. J. GENDER SOCIAL SOC. POL’Y & L. 621, 622, 624–25 (2001); History of the Document, supra note 16.
24 See UDHR, supra note 2, pmbl., art. 1–2.
25 See id.

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† Director, Center for Religious Liberty, Family Research Council, Washington,
D.C.; B.S. 2002, U.S. Naval Academy; J.D. 2010, Regent University School of Law; LL.M. 2011, Georgetown University Law Center.
†† L. Lin is a graduate of Harvard Law School who has defended freedom of thought, conscience and religion for clients of various faiths from around the world.