Michael J. Perry

Toward a theory of human rights : religion, law, courts

Part I. The Morality of Human Rights: 1. The morality of human rights 2. The morality of human rights: a religious ground 3. The morality of human rights: a nonreligious ground? Part II. From Morality to Law: 4. From morality to law 5. Capital punishment 6. Abortion 7. Same-sex unions Part III. From Law to Courts: 8. Protecting human rights in a democracy: what role for the courts? 9. How should the Supreme Court rule?: capital punishment, abortion, and same-sex unions.

MORALITY AND NORMATIVITY

In this essay I elaborate a particular, and particularly important, morality: the morality of human rights. Next, I ask the ground-of-normativity question (as I call it) about the morality of human rights and go on to elaborate a religious response. Then, after explaining why one might be skeptical that there is a plausible secular response to the ground-of-normativity question (i.e., to the question asked about the morality of human rights), I comment critically on John Finniss secular response. Finally, I consider what difference it makes if there is no plausible secular response to the ground-of-normativity question.

Human Rights in the Constitutional Law of the United States: Introduction

The title of my new book references the subject matter that has been my principal scholarly obsession since the beginning of my academic career: Human Rights in the Constitutional Law of the United States.In the book -- the introduction to which is available here for download -- I elaborate three internationally recognized human rights, each of which, as I explain, is entrenched in the constitutional law of the United States: the right not to be subjected to “cruel and unusual” punishment, the right to moral equality, and the right to religious and moral freedom. I then pursue three inquiries: Does punishing a criminal by killing him violate the right not to be subjected to “cruel and unusual” punishment? Does excluding same-sex couples from civil marriage violate the right to moral equality or the right to religious and moral freedom? Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?I also pursue a fourth inquiry: In exercising judicial review of a certain sort -- judicial review to determine whether a law (or other public policy) claimed to violate a constitutionally entrenched human right does in fact violate the right -- should the Supreme Court of the United States inquire whether in its own judgment the law violates the right? Or, instead, should the Court proceed deferentially, inquiring only whether the lawmakers’ judgment that the law does not violate the right is a reasonable one? In short, how large/small a role should the Court play in protecting (enforcing) constitutionally entrenched human rights?I have long been engaged by, and have before written about, questions such as those I address in this book: questions about the implications of constitutionally entrenched human rights -- and the question about the proper role of the Supreme Court in adjudicating such questions. (The title of my first book, published in 1982: The Constitution, the Courts, and Human Rights.) Indeed, I have before written about each of the three constitutional controversies at the heart of this book: capital punishment, same-sex marriage, and abortion. Because I was not satisfied with my earlier efforts, I decided to revisit the controversies.I have recently posted to SSRN two papers that draw on material from the book: The Morality of Human Rights (June 2013), http://ssrn.com/abstract=2274381; Freedom of Conscience as Religious and Moral Freedom (July 2013), http://ssrn.com/abstract=2287436.

The Right to Religious Freedom, with Particular Reference to Same-Sex Marriage *

In this essay, I elaborate and defend the internationally recognized human right to religious freedom. I then pursue the implications of the right for government’s exclusion of same-sex couples from of civil marriage.

Liberal Democracy and the Right to Religious Freedom

The Roman Catholic Church was famously late to embrace the right to religious freedom. Some have plausibly maintained that when, in 1965, the cardinals and bishops at the Second Vatican Council overwhelmingly adopted the Declaration on Religious Freedom—known by the first two words of its official Latin version: Dignitatis Humanae—the church betrayed one of its most traditional and established theological teachings. The right to religious freedom, according to international law, rests in part on respect for human dignity. Thus there is a prima facie link between the liberal democratic justification and the churchs 1965 justification. But, as I will argue, the appeal to human dignity is not a preserve of modern liberal democracy. Indeed, we can imagine a government that limits religious freedom because it wishes to save souls, and this precisely out of a respect for human dignity. A similar view was held by the pre-Vatican II church. Thus the appeal to human dignity is not evidence of a fundamental shift by the church. What then does account for the churchs undeniable change of direction? Human dignity by itself cannot provide the fundamental justification for the right to religious freedom. Another ingredient is needed: distrust, born of long historical experience, of government authority to adjudicate questions of religious truth. The church in Dignitatis Humanae accepted this lesson of history, a lesson available to believers of a variety of stripes as well as nonbelievers.

A Few Words of Gratitude

I am deeply grateful for this symposium on The Idea of Human Rights. I am especially grateful to Marie Failinger, co-editor of the Journal of Law and Religion, who conceived the symposium and then brought it to fruition. I am also greatly honored by this symposium. In particular, I am honored that the contributors to the symposium are thinkers whose own work I esteem. I have learned from experience that my engagement with critical commentary on my work is much more likely to be genuinely productive on my part if I do not rush to respond. I am especially wary of rushing to respond at the present time, because for the past few years I have been in the grip of two sets of issues very different from those I addressed in The Idea of Human Rights.1 For now, suffice it to say the contributors to this symposium, each in her or his own way, have both broadened and deepened my understanding of the issues I addressed in The Idea of Human Rights. When I revisit those issues, as I expect to do in the next few years, I will turn to the important, difficult questions and arguments pressed by the symposiasts in the preceding essays. As Jean Bethke Elshtain, for one, has emphasized in her contribution, there is much more work to be done-important work. Included in the important work to be done is careful reflection on what it means, as a practical matter, an existential matter, to say that the Other-especially the extreme Other: the stranger, the alien, even the enemy-is sacred.2 Also included is reflection both on the idea (and, for some, the experience) of God as (ultimate, infinite) Other and on the idea (experience) of the Other as, somehow, of God. After all, the idea of the Other as sacred has been intimately connected to-and is even, perhaps, inextricably bound up with-the