LGBT Rights and the Universal Declaration:
A Critique of Secretary-General Ban Ki-moon's Remarks on International Human Rights Day
By E. Douglas Clark
It was not just the LGBT community who cheered when UN Secretary-General Ban Ki-Moon recently decried violence against gays. [Click here to read his remarks.] Addressing a crowded room of LGBT activists assembled on December 11, 2012 to celebrate International Human Rights Day at UN headquarters in New York, Ban spoke for us all-or perhaps we should say for all people of good will-when he condemned the outrages all too often perpetrated againstLGBT people as they are targeted, assaulted, beaten, bullied, and sometimes even killed.
Such acts certainly constitute, as Ban noted, a violation of the rights recognized in our most foundational of all human rights documents: "The very first article of the Universal Declaration of Human Rights proclaims that: ‘All human beings are born free and equal in dignity and rights.' All human beings; not some, not most, but all. No one gets to decide who is entitled to human rights and who is not."
We are grateful to the Secretary-General for using the stature of his office to call for an end to such heinous acts. It is no exaggeration to say that all of us-whether straight, gay, or however else individuals may self-classify-stand shoulder to shoulder with him in defending the rights of all people, including the LGBT community, to be free of such violence.
But when Ban declared that he stood "shoulder to shoulder with [the LGBT community] in their struggle for human rights," it became increasingly clear that his view of LBGT rights went quite beyond the right to be free from violence-especially when he singled out Argentina, the first Latin American country to legalize same-sex marriage, for special approbation: "I applaud Argentina for introducing some of the most progressive legislation in the world on same-sex partnerships and gender recognition." By the end of his speech, without ever saying the words "gay marriage," Ban left no doubt that his concept of LGBT rights encompassed gay marriage with all its ramifications. Those include, of course, the adoption and raising of children by gay couples.
And all this, he insisted in his closing salvo, was included in the rights envisaged in the Declaration: "You and I and people of conscience everywhere must keep pushing until we realize the promise of the Universal Declaration of Human Rights for all people. The freedom, dignity and equal rights that all people are born with must be a living reality each and every day of their lives."
Does the Declaration really include a right to gay marriage? Any right asserted under the Declaration must take account of the other rights therein recognized, says Harvard Professor Mary Ann Glendon as she addresses what lies ahead for the Declaration:
And on what does a healthy civil society depend? The Declaration leaves no doubt: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State," declares Article 16(3). Professor Richard G. Wilkins observed:
No wonder that the family is the only group recognized by the Declaration as having rights, even though there were a number of other groups-including social, religious, and educational organizations-which the drafters believed were significant in the scheme of human rights. (See Glendon, pp. 239-240.) And no wonder that the rights of the family are not said to be granted by the State, but must be protected by the State.
And if the family has rights, so do men and women who wish to marry and thereby establish a family: "The right of men and women of marriageable age to marry and to found a family shall be recognized." (Art. 16(1).) Further, if parents have the right to bring children into the world, they also have "a prior right to choose the kind of education that shall be given to their children." (Art. 26(3).) Most impressive of all is the Declaration's recognition of the heightened rights to which mothers and children are entitled: "Motherhood and childhood are entitled to special care and assistance." (Art. 25 (2).)
The irreplaceable role of mothers and their unique bond with their children were mentioned by Ban Ki-moon himself in his 2009 statement on the International Day of Families: "Mothers play a critical role in the family, which is a powerful force for social cohesion and integration. The mother-child relationship is vital for the healthy development of children." [Click here to read the entire statement.]
Today the role played by mothers remains as critical as ever, while the mother-child relationship likewise remains as vital as ever for the healthy development of children. Motherhood and childhood are still entitled to special care and assistance. And the family is still the natural and fundamental group unit of society, and entitled to protection by society and the State. The Declaration's vision of rights remains as timely and compelling as ever.
To preserve marriage as the time-honored and exclusive union of a man and a woman is no violation of the Declaration, but a ringing affirmation of the rights therein enshrined. To do otherwise by extending LGBT rights to include gay marriage would necessarily encroach upon the superior rights of children to maternal care, and would undermine the rights of the family itself as the natural and fundamental group unit of society.
Professor Glendon's warning could not be more relevant: the Declaration must not be read "as a string of essentially separate guarantees," and "nations and interest groups [must not] use selected provisions as weapons or shields, wrenching them out of context and ignoring the rest.... The Declaration's message [is] that rights have conditions-that everyone's rights are importantly dependent on respect for the rights of others, on the rule of law, and on a healthy civil society."
To paraphrase Ban's own words, no one gets to expand the scope of Declaration-enshrined rights at the expense of other right-holders. No one, not even the Secretary-General.