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Secretary of State Mike Pompeo leaves a press conference at the State Department in Washington, D.C. on March 17, 2020. (Photo: Nicholas Kamm/AFP via Getty Images)

Secretary of State Mike Pompeo leaves a press conference at the State Department in Washington, D.C. on March 17, 2020. (Photo: Nicholas Kamm/AFP via Getty Images)

In Pompeo's New Hierarchy of Rights, Religion and Property, Not Humans, Are at the Top

Pompeo’s ideologically motivated initiative aims to quash equal protection of human rights and dignity, and we must reject it.

Jamil Dakwar

 by Speak Freely / ACLU

The Trump administration is advocating for a new hierarchy of rights that would elevate religion and property over basic human rights. Secretary of State Mike Pompeo is leading this dangerous endeavor through his Commission on Unalienable Rights, which published a 60-page draft report and initiated a two week public comment period following the proposal. Sec. Pompeo then delivered a preposterous speech to support the ideological initiative. The commission and its glossy report are designed to lend a veneer of legitimacy to an endeavor that is both dangerous and a waste of taxpayer money — at a time when the government should be focusing on responding to the public health and economic crisis.

This commission isn’t fooling anyone. Its main purpose is to weaken international human rights protections and propose a new, politically-charged framework of rights that elevates a specific vision of religious freedom and ignores well-established, globally accepted norms. This was already evident last year, when we warned that the commission would diminish the progress made to advance the universal rights of women and LGBTQ people, as well as socioeconomic rights, especially of vulnerable and historically marginalized populations. 

The report asserts that the United States should “vigorously champion human rights in its foreign policy,” and that “America can only be an effective advocate for human rights abroad if she demonstrates her commitment to those same rights at home.” Yet the report is stunningly silent about the racist policies and xenophobic rhetoric of the Trump administration, which have been widely condemned by international human rights bodies. It also fails to account for the Christian favoritism that Pompeo has displayed time and time again, implying that there is a hierarchy even among religious groups. 

A hierarchy of rights is inconsistent with human rights law and our constitutional framework. The report presents a selective and revisionist history, emphasizing the “primacy of the American political tradition” and the founding era of American history. The result is a crude and erroneous attempt to constrain the notion of the U.S. Constitution as a living document. As the ACLU has repeatedly stated, “There is an obligation to adapt fundamental principles of liberty and equality to the needs of an evolving social culture.” It seems that the 11 members of the commission have missed the fact that our constitutional rights are evolving, not static. 

Sec. Pompeo’s commission ignores the bedrock principle that all human rights have equal status, and they are not hierarchical. The consistent refrain in the report, and from Sec. Pompeo, is that “[f]oremost among the unalienable rights that government is established to secure … are property rights and religious liberty.” This is in fact a new and novel hierarchy of rights, designating religious freedom and property rights as the most important. This is a political and ideological decision that contravenes international law, and ignores lived experiences and structural inequities. It’s also counterproductive to democratic participation and fundamental freedoms because it excludes certain types of people from all human rights, including people living at or near the poverty line, such as low-wage workers.   

We must reject any proposal that prioritizes religious liberty over equal rights and human dignity. All too often, religion has been invoked to sanction violence and discrimination against people of color, including those of African descent and Indigenous peoples, women and girls, and LGBTQ people. A recent report by the United Nations Special Rapporteur on freedom of religion and belief documents how this dynamic has taken place in all regions of the world. The Special Rapporteur concluded that “[i]nternational law is clear that the manifestation of religion or belief may be limited by States in situations where doing so is necessary to protect the fundamental rights of others, including the right to non-discrimination and equality, a principle upon which all human rights, including the right to freedom of religion or belief depends.” 

While religious freedom must be protected and faith organizations are entitled to autonomy, such deference should be extended within a holistic conception of rights grounded in the universality, indivisibility, and interdependence of the full range of human rights. 

The right to property has long been wielded as a justification for atrocities committed against people of African descent and Indigenous peoples in the U.S. The report attempts to wash over most historical rights violations, though it curtly acknowledges slavery as a wrong. In an effort to further rationalize its rights hierarchy, the authors link property rights to freedom from slavery: “…only by becoming property owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.” 

While the report acknowledges that historically states’ rights have been invoked to prevent freedom and justice for enslaved people, it fails to mention that this has also been true for Indigenous peoples. This practice continues to this day, despite the latest U.S. Supreme Court decision in Mcgirt v. Oklahoma regarding tribal lands in Oklahoma.

The commission’s report asserts that economic and social rights are best compatible with America’s founding principles when they serve as “minimums that enable citizens to exercise their unalienable rights, discharge their responsibilities, and engage in self-government.” The commission bizarrely concludes that guaranteeing a basic social safety net and fundamental human rights such as the right to health, education, and housing, would “curtail freedom — from the rights of property and religious liberty to those of individuals to form and maintain families and communities.” 

Additionally, the report sets up the premise that social and economic rights create a “clash of claims” with other rights like religious liberty. If anything, the correct interpretation is that social and economic rights are complementary and enabling rights. People cannot exercise freedom — political or otherwise — if their social and economic rights are in jeopardy.   

While the report rightly considers the Universal Declaration of Human Rights (UDHR) as a foundational document for the modern international human rights framework, it fails to mention that the U.S. has continuously undermined the UDHR by ignoring and selectively enforcing basic universal rights. Different groups throughout American history, including Indigenous peoples, enslaved African people, and women, among others, have all suffered from America’s double-standard and failure to practice what it preaches. 

Notably, the U.S. is one of a handful of nations that has not yet ratified the Convention on the Elimination of All Forms of Discrimination against Women, and is the only country in the world that has yet to ratify the Convention on the Rights of the Child. More importantly, the report glosses over the government’s failure to uphold its legal obligations under ratified treaties including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Ongoing poverty, and racial disparities in health and economics, are some of the clearest indicators of the impact of failing to prioritize rights on equal footing. 

Last week, the ACLU joined 230 human rights organizations, faith-based groups, activists, academics, former senior U.S. government officials, and others to object to the commission’s mandate as well as the fundamentally flawed analysis and recommendations contained in the report. As the coalition letter concludes, the report “undermines American commitments to human rights and provides cover for those who wish to narrow certain categories of rights protections, resulting in a weakening of the international human rights system and its protections in the process.” 

At a time when the Trump administration is resorting to authoritarian measures to suppress Black Lives Matter protests, and failing to protect our basic human rights during the COVID-19 crisis, we must fight any attempt to shake the foundations of our global humanity. Pompeo’s ideologically motivated initiative aims to quash equal protection of human rights and dignity, and we must reject it.

© 2021 ACLU
Jamil Dakwar

Jamil Dakwar

Jamil Dakwar is director of the ACLU's Human Rights Program.

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