Brett G. Scharffs is Director of the International Center for Law and Religion Studies and Rex E. Lee Chair and Professor of Law at Brigham Young University Law School. This post is adapted from a presentation made 20 February 2020 in Washington, DC, at the Special Meeting to Share Lessons Learned and Exchange Good Practices to Advance a Regional Dialogue on the Right to Freedom of Thought, Conscience, and Religion or Belief Committee on Juridical and Political Affairs, Permanent Council of the Organization of American States.
The need for “climate change” in human rights discourse
Ján Figeľ, the European Union’s Special Envoy for Freedom of Religion and Belief, speaks often of the need for “climate change” in our human rights discourse. Why is this? Today, our contemporary human rights discourse is more divisive and politicized than it ought to be. In addition, sometimes human rights seem too imperial, as if they are going to solve every problem. At other times, they seem quite fragile and vulnerable, subject to a variety of types of criticism and condemnation. And so, I think it is true that we really do need “climate change” in our human rights discourse.
How do we do this? I have two suggestions:
- Consider how we can make freedom of religion and belief (FoRB) an ordinary and everyday integrated part of human rights discourse.
- Make a journey from persecution to inclusion, considering how the concept of human dignity for all people in all places can help us rejuvenate human rights discourse.
Making FoRB an ordinary part of human rights discourse
Too often there is a disconnect between religious human rights advocates and secular human rights advocates. Sometimes we speak as if we have to make a choice between religious freedom and human rights, neglecting that religious freedom is itself a fundamental human right, by some accounts the “grandparent” of all human rights.
Too often there is a discussion of a clash of rights. Pursuing rights will work best if we understand that they are interrelated and mutually reinforcing. And so, we need to be constantly looking for strategies for mutual vindication of rights and mutual reinforcement of rights. This ought to be obvious, because it’s clear that when freedom of religion and belief is well-respected and well-protected this is good for other fundamental rights, including freedom of expression, freedom of association, as well as women’s rights, children’s rights, and the rights of sexual minorities.
Sometimes we speak as if non-discrimination and freedom of religion are in some sort of a struggle with each other. When we do this, we overlook that much of the discrimination we see in the world, much of the intolerance we see in the world, much of the violence we see in the world, is religious discrimination, religious intolerance, and violence against people because of their religion or belief. Religious minorities and sexual minorities in particular need to recognize that they have much more in common than they sometimes sense – primarily that they are each minorities that can easily be overrun by majoritarian politics. When we protect the freedom of all, when we protect the human dignity of all, this will be good for all. FoRB is sometimes described as the “canary in the coal mine” – when rights of freedom of religion and belief are violated, violations of other human rights are sure to follow.
Consider for example the stereotype that protecting religious freedom allows us to discriminate. Here we think of the cases involving bakers or florists in the wedding industry, but the most recent case decided in the United States under the Religious Freedom Restoration Act protected progressive religious activists. These were humanitarians leaving water and food on government property for migrants. They had been convicted of trespassing and a federal judge in Arizona, Judge Rosemary Marquez, recently held that these convictions could not stand because they were acting from sincere religious beliefs, and under RFRA the state had failed to prove that there was no less restrictive way of accomplishing the compelling state interest of protecting property than by prohibiting and criminalizing this behavior. And so we see that protecting religious freedom will protect both conservative but also progressive values.
The journey from persecution to inclusion: Human dignity for everyone everywhere
Let me conclude by offering a few observations about what we think of as the journey from persecution to inclusion. Many religious groups around the world have made such journeys. Think here of typical Protestant groups in many countries in Latin America and in the Caribbean over the last fifty years, since the time of Vatican II. The journey from persecution to inclusion of many of these groups in many of the countries represented in this room has been breathtaking. And what we notice is that it’s the very same institutions and individuals who inhabit those institutions that created the conditions for persecution to flourish, that were also necessary and the instruments of the journey to inclusion, the journey to participation, the journey to equality.
Consider for example, the role of states. In places where religious persecution is high, states are a part of the problem, almost always. This is true of governments, it is true of courts, it is true of police, it is true of other law enforcement and governmental agencies. When persecution thrives, the state all too often facilitates the persecution. One of the little noticed features of persecution is that it takes preparation, planning, coordination, effort, expertise, and resources.
Similarly, the press. Think of the way the press treated minority faiths in Latin America fifty years ago, compared to the way the press treats those groups today. It is much more fair-minded and even-handed, and whereas the press was often a tool of persecution, today it is often a tool of inclusion.
Similarly, majority religions. Majority religions will usually either be among the most powerful perpetrators of persecution or the most powerful allies of the persecuted. And we have seen majority faiths in the Western hemisphere change from being powerful instruments of persecution to being powerful instruments of inclusion.
Think also of education. Consider how a typical textbook about religion fifty years ago in your home country treated minority faiths. Compare that to how they are treated today. My hunch is that in most countries represented in this room, there has been enormous progress in the balanced and fair-minded treatment of minority faiths, although there may still be distances to travel.
Similarly, the role of business. Similarly, the role of entertainment media, movies, books, novels, even comics.
And finally, consider the behavior of the persecuted groups themselves. Sometimes the persecuted can become powerful advocates, not only for their own rights but for the rights of others. Sam Brownback, US Ambassador-at-Large for International Religious Freedom, often uses the phrase “standing for each other”. It is when we learn to do this, even the persecuted, when the persecuted learn to stand for others, the climates of persecution will begin to change.
The Punta del Este Declaration on Human Dignity for Everyone Everywhere
An initiative that emerged from Latin America was the Punta del Este Declaration on Human Dignity for Everyone Everywhere. This was a collective voice declaration issued by a group of scholars and human rights advocates from all over the world, who gathered in Punta del Este, Uruguay in December of 2018 in commemoration of the 70th anniversary of the adoption of the Universal Declaration of Human Rights. This declaration is about the uses of human dignity in bringing about climate change in human rights discourse. Our hope in convening the meeting to create this declaration was to start a dialogue and a discourse that will result in broadening, deepening, and heightening our commitments to human rights, our commitments to freedom of religion and belief for all people in all places, and in deepening, broadening, and heightening our commitments to human dignity for all people at all places at all times.