The State Department’s Commission on Unalienable Rights, a body of some 15 academics, legal scholars, and nonprofit leaders advising Secretary of State Mike Pompeo about human rights, was announced in late May without input from human rights groups or even the department’s existing Bureau of Democracy, Human Rights and Labor. Its purpose is to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights,” and, according to its charter, to propose “reforms of human rights discourse.” Human rights advocates immediately worried that the commission wouldn’t help enforce human rights, but rather rein them in.
Natural law—a tradition comprising Ancient Greek philosophy, Catholic medieval theologian Thomas Aquinas, and some Enlightenment-era social contract theory—in its classic form, argues that humanity has certain inherent “goods,” such as marriage or family, that are objective, universal, and, although inspired by God, also deducible through human reason, and therefore a proper basis for policy.
“According to this theory, God established a rational order to the universe, and the rules he has set are thereby ‘laws’ for all rational beings. Aiming at the natural goods for one’s species is thus commanded by God,” University of Wyoming political theory professor Brent Pickett told me.
But today, Pickett said, natural law theory is mostly used to justify differential treatment of LGBTQ people. In a 2004 critique, Pickett explained that, since the natural law view of sexuality holds that “sex must be related to a human ‘good’—in this case, the possibility of procreation—in order to be just,” its proponents commonly defend anti-LGBTQ policies from anti-sodomy laws to legal discrimination as grounded in human reason, rather than faith. The same rationales, he adds, are used to argue against contraception.
As a legal strategy, it’s a better bet than citing scripture. “It’s a way to achieve the same goals of religious conservatives without making clear that that’s what’s going on,” said Peter Montgomery, a senior fellow at People for the American Way.
If that seems like unusual subtlety for the Trump administration, you can thank Princeton professor Robert George, who, according to an ABC News source, wrote the concept note for the new commission and is slated to be among its 15 inaugural members.
A former member of President George W. Bush’s Council on Bioethics, past chair of the Unites States Commission on International Religious Freedom, and a member of more conservative boards than there’s space here to name, George is omnipresent in religious right advocacy. In 2009, The New York Times Magazine proclaimed him “this country’s most influential conservative Christian thinker.” The Catholic magazine Crisis declared, with more brio, “If there really is a vast right-wing conspiracy, its leaders probably meet in George’s kitchen.” Since the late 1980s, he’s advised Catholic bishops and religious leaders—typically urging them to focus not on issues like poverty or healthcare, where “reasonable and well-informed people of good will” can disagree, but on culture wars, where he believes natural law and the Bible clearly align—and has become a sought-after advisor to Republican politicians as well. He’s written amicus briefs defending anti-sodomy laws for right-wing groups like Focus on the Family; was on the founding board for leading anti-same-sex marriage group National Organization for Marriage; and, after the Supreme Court ruled in favor of legalizing same-sex marriage in 2015, called on public officials to “resist” the ruling as illegitimate.
He helped draft the nearly 5,000-word “Manhattan Declaration” of 2009, wherein 150 Catholic, evangelical and Eastern Orthodox leaders pledged civil disobedience around abortion, same-sex marriage, and religious freedom. At the unveiling of the declaration, a Catholic cardinal declared that the document was based not on the Bible but on “principles of right reason and natural law.” This year, in celebration of the document’s ten-year anniversary, George argued that only public policies affirming natural law are just laws that should be obeyed.
George has compared opposing same-sex marriage to fighting slavery or eugenics; has spoken in favor of banning contraception; and authored another book, with the dystopian title Making Men Moral, arguing that it’s valid, even in a pluralistic society, to impose morality laws on the populace.
“Robert George thinks that the state should endorse a specific conception of the good life, and put in place a legal code that pushes people towards that good life,” said Pickett. “But he says this institutes a virtuous cycle that pushes people to be better, so that banning abortion is the first step, and then you ban contraceptives for unmarried persons, then you can ratchet things further and further.”
The corollary to George’s—and the new commission’s—focus on natural law, is the limited notion of natural rights.
In recent years, conservatives have increasingly complained about what George calls the “inflation” of human rights. In 2017, the Heritage Foundation released a report arguing that, in the years since the Declaration of Independence enumerated a “concise triad” of natural rights—“life, liberty, and the pursuit of happiness”—the concept of human rights has been stretched beyond recognition: first when Franklin D. Roosevelt spoke, amid the Depression, of freedom from want and fear; second when the United Nations unanimously passed the 1948 Universal Declaration of Human Rights, which included rights like a decent standard of living and health care; and now, most disturbing to conservatives, with the expansion of rights to protect people from discrimination, particularly on the basis of gender or sexuality. While the original rights rested on the ideal of “self-ownership,” the report argued, “the new rights” rely on “presumptions of human neediness and dependence” that “hold no more moral authority than a barrel of ‘letters to Santa Claus.’”
“Unlike natural rights to freedom, which require only that we be left alone,” a 2018 piece in the National Review likewise argued, “these economic and social rights, if rights at all, are not universalizable. They’re created by legislatures, requiring endless redistributive schemes. And as demand for them grows, governments grow and liberty yields.”
Conservative concern about human rights particularly focuses on international law drafted in places like United Nations, the Organization of American States, and European Union bodies. U.N. battles over this have become fierce, as conservative activists and countries—now backed by the U.S.—fight both to block language that describes reproductive healthcare, sexuality or gender identity as human rights and, as Montgomery has written, to install a new suite of conservative human rights, like the right of children to have a married mother and father.
These efforts are driven by recognition that international law can affect domestic courts and legislation, here and abroad. In 2011, George helped draft a conservative treatise called the San Jose Articles, declaring that abortion is not an international human right and that any U.N. assertions to the contrary are false. Another signee, William Saunders, then the senior attorney for Americans United for Life, explained in a 2013 video that the intent was to prepare for the day when Roe v. Wadeis overturned, so “we won’t have the Supreme Court saying, ‘There’s no constitutional right to abortion, but there’s some kind of international right.”
This fall, Saunders—George’s former Harvard classmate as well as his godson, since George sponsored Saunders’s conversion to Catholicism—is launching a first-of-its-kind graduate program in human rights “from the uniquely Catholic perspective.” Directed by Saunders as part of a new center at the Catholic University of America (CUA), the program will teach natural law and rights, along with papal encyclicals, to ready young conservatives for careers in public work.
George serves on the program’s advisory board, and last fall joined Saunders at an inaugural event for the center, where he argued that human rights “inflation” and an “idolatry of desire” had led people to couch ideological agendas in the rhetoric of human rights. “Whatever they desire, they’ll treat it not as a desire, a want, a feeling, a passion, it will be a human right,” he said. “We lose our sense of the power and importance of the fundamental rights because of the inflation that happens when you conflate whatever it is you desire, whatever is on your agenda, with rights: ‘I have the right to my lifestyle, whatever my lifestyle is.’”
The conception of rights that CUA’s new program would teach, he said, would be different. “In Catholic theory, which will be front and center in this master’s program, what are rights? Rights protect human goods!”
This piece was originally published in The New Republic.