Critical Thinking About LGBT Rights Claims

Posted on December 15th, 2010 by Katherine Franke

Back in November, the U.S. representative to the UN Human Rights Committee abstained when a vote was taken on a resolution condemning extrajudicial, summary and arbitrary executions and other killings on the grounds that the final resolution removed a specific mention of sexual orientation-based killings that had been included in the document since 2008 (the General Assembly votes on this kind of resolution every two years).  A coalition of conservative states, led by Mali and Morocco, successfully blocked “sexual orientation” from being included among a list of fifteen groups that are particularly vulnerable to extrajudicial killings.  Previous post on this here.

Well, the United States Ambassador to the UN Susan Rice announced a couple days ago (on Human Rights Day) that when the matter comes up for a vote in the General Assembly on December 20th the U.S. would seek to restore the words “lesbian, gay, bisexual, and transgender individuals” to the resolution condemning extrajudicial killing of vulnerable people around the world.  Ambassador Rice said:

Today as we celebrate the birthday of the Universal Declaration of Human Rights, we must recall that its drafters insisted that it be truly universal—that its reach encompass each and every human soul. But while those rights are universally held, they are not yet universally enjoyed. We must not rest until the expanding circle of liberty and equality takes in all of us, gay and straight alike. We must all do our part, here at the United Nations and in our own countries, to ensure that no gay man need fear persecution, that no lesbian need fear discrimination, and that no transgender person need fear assault.

Her full remarks are here.

Much about her statement is to be applauded.  It states the U.S.’s support of the measure specifically and of the human rights of sexual minorities generally in unequivocal terms.

Yet, and this is a very large yet, it struck me as painfully ironic that Secretary Rice could make such an impassioned speech about the rights of gay men, lesbians and transgender people to be free from extrajudicial killing while another arm of the Obama Administration was simultaneously defending its unfettered authority to undertake arbitrary, extrajudicial targeted killings of Americans anywhere whom the president deems to be a threat to national security (regardless of their sexual orientation or gender identity) as part of the “global war on terrorism.”

Only a couple days before Secretary Rice’s speech on Human Rights Day, a federal court in Washington, D.C. dismissed a lawsuit brought by the ACLU and the Center for Constitutional Rights challenging the government’s decision to authorize the targeted killing of U.S. citizen Anwar Al-Aulaqi.  The lawsuit asked the court to rule that, outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety. The lawsuit also asked the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists, and to impose some form of judicial review of these targeting decisions.

What the lawsuit sought to contest was the U.S. government’s asserted authority to undertake targeted killings of U.S. citizens without any form of judicial review or accountability.  The judge dismissed the case without reaching this question, instead finding that the plaintiff in the case, Mr. Al-Aulaqi’s father, did not have standing to raise the issue.  The full decision is here.

It seems to be the view of the U.S. government that the Universal Declaration on Human Rights encompasses the fundamental right to life and due process of many, but not every human soul.

One more irony worth considering: on the day before the Al-Aulaqi case was dismissed under a rather narrow reading of the law of standing, lawyers representing the plaintiffs in Perry v. Schwarzenegger (the Prop 8 case) were arguing to the 9th Circuit that the court should interpret the rules of standing in a narrow fashion so as to bar Imperial County from appealing Judge Vaughn Walker’s ruling in the case.  As many have pointed out, the relaxation of standing rules in the 1960s and early 1970s gave public interest law firms easy access to federal courts, particularly under citizen-suit provisions in environmental and consumer protection statutes.  (A new article offers empirical evidence of this claim: Daniel E. Ho & Erica L. Ross, Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006, 62 Stan. L. Rev. 591 (2010), while Elizabeth Magill argues in Standing for the Public: A Lost History, 95 Va. L. Rev. 1131, 1133-50 (2009) that liberal standing rules allowed litigation to force compliance with the law by federal agencies in the name of the public interest).  The standing strategy in the Perry case is worthy of critical attention for its disconnect with standing claims in other progressive causes, whether they be taxpayer efforts to challenge unconstitutional government action, attempts to challenge corporate malfeasance, environmental law cases, or the Al-Aulaqi case.

In this and other areas, the arguments that are being made in the marriage equality cases have spill-over effects in a number of other legal arenas that might provoke concerns for progressives interested in more than homo-marriage.  In an earlier post I raised questions about the marriage equality defenders’ tactics to force the disclosure of the names of all people who have contributed to “anti-gay marriage” referenda or propositions:

The current political and legal strategy to force disclosure of supporters/contributors to anti-marriage equality measures smells a lot like the strategies that were used by racists, anti-communists, anti-unionists, and others in the 1950s and 1960s when they demanded that organizations such as the NAACP, the ACLU, the National Lawyers Guild, unions, SDS chapters, the Social Workers Party among others divulge their membership lists.  There was a spate of Supreme Court cases in this period that found pretty consistently that these disclosure laws violated the First Amendment associational rights of the members of these organizations.

Having Boies and Olsen represent the Perry plaintiffs has had the unfortunate effect of reinforcing an already acute problem in some of the marriage equality litigation: a disconnect between this legal campaign and other progressive legal and political causes.  The lgbt communities are entitled to applaud the Obama Administration’s willingness to keep pushing for the recognition of lgbt rights in the U.N., but we are also obliged to see these campaigns in the light of other less rights-respecting policy coming out of the same administration, and to connect the dots when the government’s lawyers, as well as the lawyers acting in the name of lgbt interests, make arguments and take positions that are duplicitous and/or undermine civil rights efforts more broadly.


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