Emilie Kao, director of the Richard and Helen DeVos Center for Religion and Civil Society at the Heritage Foundation, spoke about sex, gender, international religious liberty, and human rights at Providence’s Christianity and National Security Conference in November 2019.
She specifically addressed what religious freedom is and how international human rights law protects it, and covered religious liberty’s interaction with human rights. She also reviewed potential conflicts between religious liberty and LGBT rights in international law. The following is a transcript of the lecture.
Good morning. When I saw the title of this talk, it seemed very scintillating. I’m not quite sure my talk is going to live up to the title. But let me tell you what I am going to talk about. What is religious freedom and how is it protected in international human rights law?
What are the claims of the LGBT movement to new rights in the international human rights arena? Finally, what are the potential conflicts between these two issues in international law?
I really do want to leave about ten minutes for questions, so Mark, if you can help me by making sure that I stop at the right time, I’d appreciate it.
To begin with: What is the right to religious freedom? Well, I’m going to borrow from Professor Robert George of Princeton. His definition is that the essence of religious freedom is that the conscientious truth seeker can ask questions about the meaning of life, about our Creator, and then live with integrity according to what that truth seeker finds.
What role has religious freedom played in international human rights? Well, first of all, it is part of the very foundation of the International Human Rights Movement. Many of you probably know that theUniversal Declaration of Human Rights was drafted in 1948. After World War II, the Holocaust galvanized the international community to recognize that it was time to protect international human rights. And they based the recognition of human rights concept on human dignity.
What evidence do they cite for human dignity? Well, if you read the UDHR (Universal Declaration of Human Rights), Article 1 says, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” So there, you see two sources of human dignity: human beings’ reason and conscience. And that conscience is what I want to focus on.
So, how does the Universal Declaration of Human Rights address religious freedom? It says, “Everyone has the right to freedom of thought, conscience, and religion. This right includes the freedom to change religion or belief, to practice religion or belief freely either alone or in community with others, in public and in private, to manifest one’s religion or belief in teaching, practice, worship, and observance.”
So there you have the UDHR’s explanation of what religious freedom is. And note: it includes religious freedom, thought, and conscience. That’s the relationship between the very foundation of the universal human rights movement and religious freedom. Religious freedom is part of the very foundation of human dignity. So you could say, in essence, the entire structure of the human rights movement essentially rests on this freedom of thought, conscience, and religion—this acknowledgment that we have human rights because we are born with the ability to reason and to act according to our conscience.
Next, I’m going to look at what role religious freedom has played in the international human rights movement. I would describe it as the engine of the human rights movement because it is often religious conviction—or convictions of conscience—that have led people to realize violations of human rights and the need to protect human rights. There are many examples, but I’ll just highlight three.
First, there are the Geneva Conventions. The Geneva Conventions on the laws of war came from a man named Henri Dunant. He was the founder of the Red Cross. He was a Christian, and he was so grieved by the treatment of soldiers—or lack of treatment of soldiers on the battlefield—that led him, inspired him, to essentially start what became the Red Cross, which led to the Geneva Conventions.
Second, William Wilberforce. I’m sure many of you know his story. He was motivated by his Christian faith and his convictions about the nature of man and human dignity of every person to fight slavery.
Finally, here at home, Martin Luther King Jr. I’m sure he has been addressed by some of the other speakers. It was his Christian convictions that motivated his leadership of the civil rights movement.
So, we see across cultures and throughout history that it is re;igious beliefs and convictions of conscience that have led to developments in the international human rights movement.
Now, I want to turn to the question what are LGBT rights?
I think it’s very important to focus on the definition here because there actually is no clear definition in any international human rights treaty of what LGBT rights are.
I will say that LGBT rights, in the sense that every person is protected from the basic violations of human rights that are enunciated in human rights treaties, includes the right to life, the right to be free from arbitrary imprisonment, the right to be free from cruel, inhuman, and degrading treatment, to be free from torture. These are rights that we all have because we all have human dignity. Every person, whether they are LGBT or not, has these rights because of our human dignity.
However, those are not where the controversies lie. The controversies lie in two other areas.
The first is the issue of non-discrimination. The UDHR and the other treaties, International Covenant on Civil and Political Rights, protect people from being discriminated against. You won’t find “sexual orientation” or “gender identity” in the text of those articles. But what you will find in the text is the term “sex,” which, at the time of the drafting of the UDHR, everyone understood to mean male and female in the biological sense. Now, however, there is increasingly an assertion by the LGBT community that “sex” actually encompasses “sexual orientation” and “gender identity,” two very distinct concepts.
The second issue in international human rights law that is at the forefront right now is same-sex marriage. Is there a right to same-sex marriage? The UDHR does address and protect the right to marriage. There is an increasing assertion that this protection should encompass same-sex marriage.
Before we go into the conflicts between the rights, I want to briefly go over how rapidly the movement for LGBT rights has developed in the international human rights community. Just looking at one decade, we can see the rapid advancements at the United Nations.
In 2006, the Yogyakarta Principles were adopted by LGBT advocacy groups from around the world, alongside academics and UN officials. These principles serve as a roadmap for how the movement would incorporate sexual orientation and gender identity into every aspect of the universal human rights movement—into every treaty and every article of the UDHR.
In 2008, the French government offered the first resolution about LGBT rights at the United Nations. This resolution began to gain traction very quickly. The Bush administration did not sign on to it, but three years later, under the Obama administration, the U.S. signed the statement. Then, Secretary Clinton made a landmark speech at the UN Human Rights Council in Geneva. She said, “Human rights are gay rights. Gay rights are human rights.”
The first part of that statement, “Human rights are gay rights.” Human rights belong to everyone. In that sense, I agree that human rights belong to LGBT people. However, the second part, “Gay rights are human rights,” needs to be examined much more closely because it leads to assertions about rights that are not actually found in the text of treaties.
In 2014, UN Secretary-General Ban Ki-moon declared unilaterally that same-sex marriage would be recognized for all UN employees. He also stated that any opposition to same-sex marriage was rooted in homophobia.
Now, there was no vote taken by the UN general assembly. There was no input by the member states of the United Nations. This purely came from the Secretary-General. It is extremely concerning that he described the opposition to same-sex marriage as rooted in homophobia.
Particularly at the time, I think there were only 27 countries in the world that recognized same-sex marriage within their own laws. Then shortly after, the United Nations developed the “Free and Equal” campaign, which is their campaign to promote LGBT rights in every area of the United Nations.
I’m going to focus on how that affects the developing world because the “Free and Equal” campaign makes sexual orientation and gender identity a condition of the Sustainable Development Goals. These goals are tied to the UN development agencies’ funding for the developing world—billions of dollars that will be distributed until 2030.
In 2016, the Office of the High Commissioner for Human Rights created the first independent expert on sexual orientation and gender identity. That person was one of the original signers of the Yogyakarta Principles.
So, in one decade, you can see how rapidly this movement has developed. It has elevated LGBT rights to become one of the very top priorities of the United Nations bureaucracy. Now, how does this actually undermine the international human rights movement? I think there are two ways in which it does so.
First, the UN human rights bureaucracy is unelected and undemocratic. These are essentially intergovernmental bureaucrats who are now imposing their values upon the entire world, including through attaching the purse strings of the United Nations to these values.
Second, there is the concept that treaty terms are constantly evolving. This undermines the rule of law and the principle of sovereignty. Let me explain why it undermines sovereignty. Treaties and the Universal Declarations are drafted and adopted through a process of consensus in which member states carefully negotiate these treaties. These terms are very carefully negotiated, and then they are voted upon, just like we would vote in Congress. At the UN General Assembly, these treaties are voted upon.
When you have, later on, an organization like an entity of the UN—such as the Human Rights Committee—coming in and adding to the term “sex” something that is very controversial, like sexual orientation and gender identity, they look at some of the cases that have come up under these treaties, and they simply add in the terms “sexual orientation” and “gender identity.” That is not something that is up for a vote. It’s never been discussed among the member states. It is simply added in by these UN bureaucrats.
Even though their decisions are non-binding, these decisions are going to become part of customary international law. There is a danger that the more these interpretations are adopted, the more they will harden into the basic understanding of what these treaties mean.
So, in these two ways, it undermines sovereignty. There is also a concern that it undermines the credibility of the international human rights movement altogether. If these carefully negotiated terms can constantly be altered by unelected UN bureaucrats, what do they mean? How can governments and member states rely on what they mean? How can those advocating for human rights make claims that these rights should be protected and respected in every country? How will their claims stand if these terms are constantly changing and no one knows how they will evolve in the future?
Now, I want to address the conflicts between human rights—namely, the right to religious freedom—and the claims to LGBT rights. The basic conflicts between religious freedom and LGBT rights revolve around speech.
I want to preface that by going back to something I should have mentioned earlier: the status of religious freedom in international human rights law. There are three characteristics of the right to religious freedom.
First of all, religious freedom is an inalienable human right. Not only was this recognized by the founders in the Declaration of Independence, but it is also widely recognized that religious freedom is not a grant from the government. It is something that we all possess inherently.
Second, in international human rights law, religious freedom is recognized as non-derogable. Only a handful of rights are recognized as non-derogable. This term simply means that in times of war, crisis, or national emergency, a government cannot suspend respect for these rights. That is not true of every human right. As I said, only a handful of core rights are considered non-derogable.
Finally, religious freedom is universal. Every person, regardless of their religion, race, or national origin, has a religious freedom.
So, where are the conflicts between religious freedom and assertions of LGBT rights arising?
Well, much like you would expect if you’re following this debate in our country, much of the conflict is arising overseas in the areas of speech, compelled speech, and hate speech. So, I’m going to look first at some of the cases in foreign jurisdictions and then talk about how this applies to the UN.
You may be familiar with the case of the Colorado baker, Jack Phillips, who serves all customers but declines to endorse same-sex marriage by baking custom wedding cakes for same-sex marriages. A similar case arose in England, in Northern Ireland. The Ashers Bakery was asked to bake a cake in support of a Gay Pride campaign, and they declined. The highest court in England actually ruled in their favor, saying that it was compelled speech. That is a bright spot.
Unfortunately, in many other cases, the United Kingdom has taken the position that religious freedom is trumped by LGBT rights. There are two cases from the European Court of Human Rights that are particularly notable. Both involved British citizens versus the British government. These two citizens were Christians.
In one case, a civil servant who worked as a marriage registrar in an office asked to be excused from signing same-sex marriage certificates, and to have another employee sign the certificate. She was punished by the UK government.
The second case was a private employment counseling organization that was asked to provide counseling for a same sex couple. Again, the counselor made an arrangement with another employee to provide the counseling instead, but he was fired from his job.
When the European Court reviewed these two cases, they found in both instances that the right to religious freedom was trumped by the claims of LGBT rights.
I think the issue here is not whether every person has a right to counseling or a right to get married, because clearly, in both of these cases, those requests for certificates or counseling would be met by other people. The issue here really is the correct definition of discrimination.
Unfortunately, what the courts have done is turn disagreement on the nature of marriage into discrimination. But disagreement is not discrimination. The courts should not attempt to turn disagreement on issues like marriage—and also biological sex, which I’ll get to—into discrimination, using laws to punish those who don’t conform to the new sexual ideology. Doing so would actually create a state-sanctioned orthodoxy.
We’ve mentioned hate speech. There have been prosecutions in several European jurisdictions, and also, I believe, in Latin America. Pastors and imams have been prosecuted for their statements about marriage being between a man and a woman only. Countries like Belgium, Spain, Switzerland, and the UK have all punished pastors and imams for these statements.
Also, to mention our own government: under the Obama administration, USAID endorced the idea that statements opposing same-sex marriage could constitute hate speech.
The UN Secretary-General has also endorsed the concept of global hate speech. He has done this in response to the attacks on houses of worship, stating that it is necessary to defend religious freedom. But what is hate speech? As we look around the world, hate speech laws are really empowering governments to punish those who simply disagree with them.
That’s why we don’t recognize the concept of hate speech in our laws here in the United States. Instead, we recognize that we have the right to disagree with the government. We have the right to disagree with one another. That’s why we protect free speech in this country. It’s also why, when the U.S. Senate took a reservation to the hate speech provision in the International Covenant on Civil and Political Rights.
Some of the consequences of the growing conflicts between religious freedom and the assertions of LGBT rights can be seen in England. All the adoption agencies run by religious organizations have been shut down because of their belief that every child deserves a mother and a father and their desire to place children in such families.
This really goes to one aspect of religious freedom that I mentioned earlier: the ability of religious people to live out their convictions in the public square—not only in private, not only within a house of worship.
Some of the other implications of the conflicts between religious freedom and LGBT assertions in human rights concern the issue of transgender ideology. As you may know, a medical doctor in England was recently punished because he refused to address a patient as a member of the opposite sex. This implicates not only his religious beliefs but also his beliefs about science. There are increasing conflicts with the conscience rights of medical professionals.
I’ll now wrap up with some implications for U.S. foreign policy.
First, the U.S. is taking steps to clarify what unalienable rights are and to ensure that they are protected amidst this growing politicization of human rights. This politicization is not only about LGBT rights but also includes massive proliferation of assertions of new human rights. These range from claims of a right to free internet access, to vacation rights, to employment counseling rights. All of this is very problematic and undermines the integrity of the human rights framework.
So, Secretary Pompeo organized a commission to return to the roots of what the human rights movement was about: protecting unalienable human rights and defining them.
Second, the U.S. government should support international religious freedom. This includes supporting those who believe that marriage is between a man and a woman or that we are born male and female. Such beliefs are increasingly under attack in many countries. These conflicts should be included in the International Religious Freedom Report.
I recently met with a group of people who formerly identified as homosexual and transgender. They have been meeting with their counterparts in countries around the world where there are increasing efforts to ban counseling that would help people struggling with same-sex attraction or gender dysphoria.
Finally, the U.S. continues to be a member of the Sexual Orientation and Gender Identity (SOGI) Core Group at the United Nations. This core group was created by the UN High Commissioner for Human Rights and and LGBT rights groups. The UN is part of a handful of Western countries advancing some of the most radical notions of LGBT rights. These include the right to non-discrimination on the basis of sexual orientation and gender identity, which is increasingly used to punish those who simply disagree on issues like marriage and biological sex.
The U.S. should either use its membership in the SOGI Core Group to promote correct definitions of human rights and to protect both religious freedom and the rights of LGBT people when they are violated as defined in the treaties, or it should withdraw from the group entirely.
Q&A
Question: Hello, I’m with Liberty University. On the second question, I actually might get myself in trouble, but in my high school, I had a lot of friends and family members who were part of the LGBT community. I think a question that sometimes maybe all Christians struggle with is: where is the line between protecting our religious freedoms and then protecting that human dignity of not wanting to overpressure them?
For example, I think we they could have same-sex marriage and adopt. I think that’s something that they should have the ability to pursue, just as we have the ability to. I don’t think us disagreeing with that life choice should prevent them from having those abilities. But where is the line between promoting our religious freedoms and denying the marriage certificate or passing it off to someone else and then continue with that right of marriage?
I guess my question is, how do we define where that line is so we’re not pressuring one side versus the other and can find that happy balance?
Answer: Well, I think I need to address the domestic context as well as the international context and how they interact. Let me first talk about the difference between international law and U.S. law.
So, as I mentioned, international law is arrived at through a somewhat democratic process. The UN General Assembly has all these member states, and they vote on treaties and resolutions. No one has put to a vote the question of same-sex marriage or the question of adoption at the UN. These are not recognized in international law.
I think a basic principle of sovereignty is that every nation should be able to decide for itself what policy preferences they want to adopt. Policy preferences are not necessarily international human rights issues, like how we must handle adoption or marriage. Those are largely policy preferences. To the extent that there is an intersection with internationally recognized rights, like religious freedom, countries should respect international human rights.
But, I think the issues you’re discussing at this point are policy preferences. So, the U.S. government is obviously going through its own internal democratic process regarding adoption. I wouldn’t say the same thing about same-sex marriage, which was decided by five unelected Supreme Court justices who found a right in the Constitution which I don’t think actually exists.
But my point is that we should try to keep these two concepts somewhat distinct. For your question about where religious freedom ends and where LGBT claims to marriage and adoption begin, I think the adoption question is particularly pertinent right now.
What we see—there was actually a major announcement about this yesterday by the Trump Administration—is that in states where they have adopted sexual orientation and gender identity (SOGI) policies, those non-discrimination policies are not simply used to allow LGBT people to adopt. LGBT individuals can adopt in every state; there is no state in this country that bans any person from adopting based on their sexual orientation.
However, in states where these laws have been adopted, they have been used as a weapon to shut down faith-based adoption agencies—Catholic, Protestant, etc.—that believe that every child deserves a mother and a father.
That is not a position that is against the ability of LGBT people to adopt. No one is fighting to stop LGBT individuals from adopting. But shutting down these agencies cripples the ability of the foster care system to care for the over 440,000 children who are in foster care in this country. So, in Massachusetts, when the state adopted these SOGI policies, they told the Catholic Church, “You must start placing children with same-sex couples.”
The Catholic Church responded, “We’re Catholic. We cannot do that. These are our convictions, and we want to live in the public square on the same terms as a secular adoption agency.” There was no tolerance for the religious beliefs of the Catholic adoption agency, so they had to shut down. This led to the displacement of 2,000 families who were qualified to be foster parents.
What you see with these SOGI non-discrimination policies is that they are not being used as a shield to protect people from discrimination because that’s really not happening against LGBT people in this country. What is happening is those laws are being used as a sword to coerce people in faith to conform to this sexual ideology that is increasingly becoming a state sanctioned orthodoxy.
Question: You mentioned the Masterpiece v. Colorado Civil Rights Commission case. Why do you think it’s important? Justice Kennedy, in his opinion, mentioned that the government is committed to religious toleration. So, why is it important to focus on religious freedom as opposed to simply toleration?
Answer: This question goes back to America’s roots. Why was America founded? America was founded by people who were fleeing religious persecution. In the United Kingdom, there was the Toleration Act, which basically imposed a state sanctioned orthodoxy on people, and it allowed toleration only for those outside of the Church of England. So, they were treated as second-class citizens, but they were tolerated. They couldn’t hold public office or manifest their beliefs in the public square in the same way as those in the Church of England. Of course, England was and still is a theocracy, has an official church and a state sanctioned orthodoxy. Maybe it’s a more benign theocracy than ones we talk about here at Providence.
That’s why the founders didn’t write the First Amendment to establish toleration for people of faith or anything; they knew they needed something more robust. Toleration is not enough. No one wants to be merely tolerated in society. People want to be free in society. That’s what most people want, and that’s what leads to authentic and peaceful pluralism—when everyone, whether Christian, Muslim, Jewish, or otherwise, has the freedom to live out their beliefs in the public square and not just merely tolerated.
I want to go back to something you said at the beginning of your question which is that you have many friends who are identifying as LGBT. I think most of us do. So I want to say, as Christians, one thing in two contexts: Do not be afraid.
Do not be afraid to live out your Christian convictions about the good news of Christ, including God’s design that male and female are created for one another.
But, I also recognize that there is increasing hostility. Not even just social and cultural hostility but economic hostility. So, my second piece of advice is do not be afraid to engage those who disagree with you. First of all, we are called as Christians to love our neighbors, so that includes those who identify as LGBT. Most of us have friends or family members who are part of this community. Engaging in these discussions is important because where there are offenses and misunderstandings, they can often be discussed and resolved in civil society.
Whether it’s an offense to a person who’s religious or LGBT, and then those two categories are not completely separate, right? There are people who cross over those categories. So, many of the things that are problems in our society can actually be resolved without getting the government involved. They should be resolved and discussed in civil society, and that’s why relationships are so important. More engagement in society could lead to fewer political and legal conflicts.
