Natural Law, Gay Rights, and the State Department’s New Commission on Unalienable Rights

More on the State Department’s new Commission on Unalienable Rights, about which I wrote in this space on Friday. Aimed at providing Secretary Pompeo “with fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights,” the commission has raised several concerns. Chief among them is whether “natural law” is code, signaling that the department in future might “focus less on protecting women and LGBT people,” as put by Politico, which broke the story on Thursday afternoon. 

Giving weight to those concerns, ABC News late Friday reported that, according to a source familiar with the plans for the commission, Princeton’s Robbie George has played a prominent role in its creation. I’ve known Prof. George for some time now. He’s a first-rate scholar and advocate for religious liberty. In fact, he spoke at Cato’s 2016 conference on religious liberty, which we memorialized with our book Deep Commitments. But as co-founder of the National Organization for Marriage and a prominent voice in Catholic circles, he has long argued against the gay-rights agenda, especially same-sex marriage.

If this is the course the commission takes, this “fresh thinking about human rights” could seriously complicate the work of the department’s Bureau of Democracy, Human Rights, and Labor, especially in countries with draconian anti-gay laws and practices. But at a theoretical level too, as noted in my earlier post, the promise this “fresh thinking” raises for correcting some of the misconceptions that afflict today’s rights talk could easily be lost by coupling natural law and religious belief. A word is in order on that matter. 

Start with this: Natural law and natural rights are not the same thing. True, natural rights emerged historically from natural law. And in the Declaration of Independence, Jefferson did speak of our rights as being “endowed by [our] Creator.” But that was a very general invocation, suited properly for “a candid World” wherein was found a variety of beliefs. Properly understood, however, especially as modern natural rights theory has evolved, our rights are not grounded in a prescriptive natural law, much less in any belief system, religious or otherwise, but in universal human reason, as John Locke and many of the Founders understood. They saw that liberty—the right to pursue happiness by our own subjective lights—was the very essence of natural rights. 

Thus, on this understanding, natural rights are not derived from natural law. On the contrary, natural law—the rules suited to securing our logically prior natural rights—is derived from those rights. In fact, if you look at the famous second paragraph of the Declaration, that’s exactly the order you’ll find. Jefferson sets forth the moral vision first, defined by our natural rights; only then does he set forth the political and legal order—the law—that is “instituted among Men” to secure those rights. 

Historically, of course, many have associated natural law with, and grounded it on, religious beliefs, and many still do, although the ancient Greeks, especially the Stoics, and Roman Law did not so ground it. But the American founding emerged from the Enlightenment—English, Scottish, and continental—and so is best understood as having eschewed an undue reliance on theological considerations—though I grant that on that historical question it’s a mixed record, despite the theory of the matter. 

As a practical matter, however, it would be far better if this commission emphasized natural rights and the nation’s founding principles rather than natural law, because the former does not carry what many today see, not without reason, as the “baggage” of the latter. I presume that we all want a world that respects liberty, including religious liberty, not one that restricts our freedoms. That is what animated us at Cato’s Center for Constitutional Studies as the same-sex cases were coming along. Thus, we filed amicus briefs with the Supreme Court defending, on equal protection grounds, the liberty of same-sex couples to marry and, after that, the liberty of bakers and others, on religious freedom grounds, to decline to participate in various ways in same-sex weddings. In both cases, the principle was the same—liberty. 

As I intimated in Friday’s post, albeit with a focus on aberrations that have arisen from modern “human rights” thinking, this commission, properly staffed and conducted, affords an opportunity to redirect our public debate to America’s first principles—and to do so on many issues. Given the state of liberty today around the world, the concerns raised so far about this commission should be seen not as something to be countered but to be embraced. There will be close calls, to be sure, and some differences. But in the end, those raising the concerns and those calling for fresh thinking should be focused on the same thing—the liberty that natural rights are all about.