Response to Aidan O’Neill

In response to my question, “What gives this court the authority to determine whether a particular religious interpretation is misguided?,"  Aidan says:

I think that by using the word “misguided” the court is not suggesting that the views expressed are not in fact true expressions of the particular religious beliefs described, but rather that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies.  The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific  and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world. 

There are two problems with Aidan’s response, as I see it.  First, there is no universal –or near universal - consensus in the “civilized” world that “respect for individual human dignity” requires recognition of same-sex sexual relationships.  In the aftermath of WWII, the “civilized” world did come to recognize that certain rights were necessary to give “respect for individual human dignity,” but recognition of same-sex relationships was not among these recognized rights.  By contrast, in the asylum context, the world community recognized the right to political and religious freedom as constitutive of human dignity.   The “enlightened” West has for a long time tried to promote abortion as a fundamental right necessary to the proper respect of individual human dignity and now it is trying to promote same-sex relationships on the same ground.  But, without the same sort of consensus that came together in the aftermath of WWII, what gives this court the authority to determine whether a particular religious interpretation is misguided?  Aidan, I look forward and hope for your response.

Second, as Mary Ann Glendon pointed out in her chapter of “Recovering Self-Evident Truths:  Catholic Perspectives on American Law,” the post-WWII/post-Nuremberg consensus involved a pragmatic consensus about some important but minimal international human rights.  What they didn’t decide – and didn’t even discuss much – was the foundation for those rights.  In other words, the anthropological questions, which would have addressed “why human beings have rights and why some rights are universal” (p. 317), were rarely discussed and never resolved.  Aidan states that “An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge, and I see no usurpation of power in their so doing in this particular case.”   Hmm?  On what ground does the court presume to develop (evolve?) the list of fundamental human rights or legally binding “absolute moral values” beyond those agreed to in treaties without a guiding principle or criterion for determining what rights human beings have and what rights are fundamental.  Isn’t the court really engaged in an exercise of raw judicial power (maybe for good or maybe for ill) without some foundational premises from which to derive their specific conclusion?  Thoughts?