Fundamental Rights - or Fundamental Confusion?
During the past year I have learned a lot about human rights. It began with my election to the Advisory Panel of the European Union’s Fundamental Rights Agency’s Fundamental Rights Platform. On that body I represent the Observatory on Intolerance and Discrimination against Christians in Europe.
However, my election was heavily criticized by left-wing NGOs represented on the panel because of an article published bywww.europe4christ.net, another NGO in which I am a volunteer. The article in question set out ten reasons against gay adoption. An FRA staff member informed me: “I spent three months clarifying that your opposition to adoption of children by gay couples is not a violation of fundamental rights.”
Three months! That is a long time. But, thankfully, his conclusion supported my position. Otherwise I would have been excluded from the platform and its advisory panel. How odd that my views on this subject caused so much bother even though almost every European country’s legislation is on my side. That includes the laws of Austria, FRA’s host country.
In December last year the Observatory published its Five-Year Report on Intolerance against Christians in Europe. A few weeks ago, on April 14th, I presented the report at the FRA’s conference on civil society, Fundamental Rights Platform.
I was aware that my audience would not be favourable, as combating homophobia is always a main issue at these meetings. But I believe in seizing occasions: I asked the numerous gay rights activist groups present to be more respectful when dealing with Christians. A “kiss-in” at Notre Dame Cathedral is disrespectful, I said. Anti-Christian images at gay parades -- including live imitations of the crucifixion -- are hurtful to Christians. The arrest of a street preacher for quoting the Bible on homosexuality violates freedom and is totalitarian.
My presentation was not about homosexuality, which has never interested me much. It was not about “hating homosexuals”, which no reasonable person would do. (Strange, how one always has to underline that. If I disapproved of the Swiss referendum’s results on the construction of Muslim minarets, would I have to affirm in the same breath that I do not “hate” all Swiss nationals?) No, my concern was about a group of people badly misbehaving and disturbing a fruitful public debate by their radical actions.
But, here is a replay of what happened:
“Let us agree,” I say in my workshop, “that no one should go to prison for respectfully stating an opinion which does not advocate violence.”
“No!” angry voices shout back at me. “People should go to prison for what they say if it is a negative comment against a vulnerable minority group, especially when they are in a position of power!” Heavy nodding of FRA staff accompanies this outburst.
People in the audience get agitated. An FRA staff member, a nice Italian, tries to calm everyone down by asking me: “Gudrun, tell us, if there is a Catholic maths teacher who says in class that gay people are stupid and cannot calculate -- is this a violation of fundamental rights?”
It is hard to think clearly when one is confronted all alone by a crowd of angry campaigners. To answer “no” would feel strange -- after all, that teacher is being very silly. To answer “yes” does not feel right... Which right is actually being violated?
The answer is, of course, “no”. The maths teacher does not violate rights. He violates the code of conduct of teachers and he ought to be disciplined accordingly. Human rights legal obligations bind states, not individuals. Only if the state prescribed to all maths teachers to teach that gay people were “too stupid to do maths”, one could probably speak of a human rights violation. Most of all, however, it would be a violation of the pupils’ right to education.
Does this need to be explained to staff members of Fundamental Rights Agency? It should not.
Is there a right not to be insulted? A freedom from hearing? A non-offence clause included somewhere in the principle of non-discrimination?
No, and the reason lies precisely in the word “principle”. Non-discrimination does not stand alone as a substantive norm but is always to be applied together with a fundamental right. It is a formal principle giving a key to the interpretation of rights and freedoms and their application. The principle of non-discrimination tells us that fundamental rights and freedoms apply equally to all people, regardless of the circumstances. Non-discrimination is not a right on its own.
Imagine for a moment if human rights bound individuals, and non-discrimination were a stand-alone substantive norm: every differentiation between persons would be suspect. Every “yes”, every “no” would be subject to legal investigation, refined by the possibility of lodging anonymous complaints to some “equality body”, shifting the burden of proof to the alleged culprit, and entailing “severe fines” including “victim compensation”.
Back to the meeting:
Next, I mention the case of a Berlin pharmacist who refuses to sell the morning after pill. Radical feminists smashed his windows and wrecked the pharmacy. “Rightly so,” says another participant of FRA’s Fundamental Rights Platform. “He violated the right of access to medical care!” Heavy nodding from the audience.
I am not sure whether to be surprised, shocked or scared. This is self-administered justice. It violates the freedom of conscience of a pharmacist who took up his business long before such pills were available. It also presupposes, wrongly, that the morning after pill is “medical care” although it has not been defined in this way by the courts. And it does away with proportionality, by assuming that that pill would not be reasonably accessible otherwise, which is not the case in downtown Berlin.
How much fundamental rights confusion can a fundamental rights conference take? I am not an expert on “LGBT issues”, nor did I ever want to discuss them publicly. But the aggressive acts and speech of some of their representatives forces me into this.
I love human rights, and I am glad that they hold such a prominent place in today's society. But they are vulnerable to fundamentalism and ideologies. As long as fundamental rights are used for some radical groups' agenda, they will never be fully respected.
Dr Gudrun Kugler is a lawyer in Vienna, Austria, and founder of the Observatory on Intolerance and Discrimination against Christians. She is an advisor for the Fundamental Rights Platform of European Union’s Fundamental Rights Agency.
This text was first published on Mercatornet:
http://www.mercatornet.com/articles/view/fundamental_rights_or_fundamental_confusion/