Family Research Council

The Activists' Game Plan Against Religion, Life and the Family: The UN, the Courts and Transnationalist Ideology

By Pat Fagan and William Saunders Senior Policy Analyst

 

In "How U.N. Conventions on Women's and Children's Rights Undermine Family, Religion, and Sovereignty"[2], we considered difficulties inherent in two United Nations conventions: the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") and the Convention on the Rights of the Child ("CRC"). In particular, we called attention to the fact that the committees entrusted to review implementation reports by state parties are acting far beyond their actual powers in what can only be described as an "ideological" manner. Here we intend to show that the activism of the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women are part of an effort, both abroad and at home, to undermine the family, life and religion. CEDAW and CRC are simply two pieces used by cultural Marxists in the international clash of civilizations. The difference between cultural Marxists and traditional society is in how sexuality and reproduction are structured, and how both are linked to, or decoupled from, a sense of creation, or of the Creator. There is no reconciling these views. They clash.

Historical and Ideological Background

Influential intellectual roots of anti-family and anti-religious efforts can be found in the writings of Karl Marx's collaborator, the German philosopher Friedrich Engels. [3] Engels, in his vision of state ownership as the means of production and the ultimate triumph of the proletariat, was keenly aware that two institutions would stand in the way of his communist vision: the family and organized religion. He understood that in order for the international communist vision to come to fruition, the natural primacy of family and religion in society must be undermined.

Engel's Materialism and Attack on the Family Engels saw the establishment of the family as an aberration of the proper order of history, with its collapse being a necessary element in the coming communist world order. As he said in his preface to the first edition of The Origin of the Family, Private Property and the State: "The old society, built on groups based on ties of sex, bursts asunder in the collision of the newly-developed social classes." [4]

Engels' rationale for the collapse of the family can be found in his materialist view of man, in whom he understands all interactions to be products of the class struggle, and in which marriage plays a central role. He makes clear why monogamy (marriage) must be eliminated:

Thus, monogamy does not by any means make its appearance in history as the reconciliation of man and woman, still less as the highest form of such reconciliation. On the contrary, it appears as the subjection of one sex by the other, as the proclamation of a conflict between the sexes entirely unknown hitherto in prehistoric times. [5]

And,

The first class antagonism which appears in history coincides with the development of the antagonism between man and woman in monogamian (marriage), and the first class oppression with that of the female sex by the male. [6]

Thus the most fundamental of all "class struggles" (Engels' overriding preoccupation) is that between male and female, in which marriage effects the subordination of woman by man. Likewise religion could not stand in the way of the coming victories of communism. Engels explains in his introduction to "History (the role of Religion) in the English middle-class," that religion is only an offshoot of previous economic realities, used later to prop them up, "and, unless we believe in supernatural revelation, we must admit that no religious tenets will ever suffice to prop up a tottering society." [7]

The Family Undermined in USSR: Engels' vision of the collapse of the family and religion found a ready application in the Soviet Union. As one Russian observer in the 1920s noted, "When the Bolsheviki came into power in 1917 they regarded the family, like every other 'bourgeois' institution, with fierce hatred, and set out with a will to destroy it." [8] Thus they instituted radical changes in the marriage laws, such as divorce-at-will, the prohibition of religious marriage, and the abolition of illegitimacy laws, as well as more violent programs like Josef Stalin's dekulakization, in which the "rich peasants"("kulaks"), noted for their resilient family structures and religious piety, were "liquidated" as a class. Likewise the Russian Orthodox Church was systematically undermined from within.

Contemporary Cultural Marxism: Like Engels, many contemporary liberals see the family and religion as impediments to fulfillment rather than paths to it. Thus, they may fairly be denominated as "cultural Marxists," and we do so in this paper. Today, however, they try to undermine the family and religion through more subtle means than Lenin used. This is accomplished in an interrelated process: simultaneously, the power of the state is increased while that of the individual and his community is decreased, and laws pertaining to family and religion are undermined. Thus the traditional supports of society-family and religion-are crowded out by government increasingly under the influence of what one might call a totally different "civilization." As one feminist scholar put it,

While international human rights law moves forward to meet the demands of the international women's movement, the reality in many societies is that women's rights [as interpreted by the feminist movement] are under challenge from alternative cultural expressions . ... The movement is not only generating new interpretations of existing human rights doctrine...but it is also generating new rights. The most controversial is the issue of sexual rights.... One can only hope that the common values of human dignity and freedom will triumph over parochial forces attempting to confine women to the home. [9]

Such anti-family objectives of contemporary cultural Marxists at the international level are further exemplified by the words of Arie Hoekman, a representative of the United Nations Population Fund, who commented favorably upon widespread family breakdown in words reminiscent of Engels' theories: "[It is] a weakening of the patriarchal structure, as a result of the disappearance of the economic base that sustains it and because of the rise of new values centered in the recognition of fundamental human rights." [10] In other words, what would be considered a disaster in most societies-the rise of out-of-wedlock birth, and the collapse of the married family-is something actively to be desired ("new values" based on "human rights") by contemporary cultural Marxists, who, like Engels and Marx, see the traditional family as an obstacle to personal fulfillment ("patriarchy").

The Abolition of Marriage as an Activist Ideal: Hoekman's view is echoed elsewhere, such as in the 2006 advocacy statement "Beyond Same-Sex Marriage." [11] This document, signed by over 300 scholars and activists from universities like Georgetown, Columbia, Princeton and Yale, debuted in a full-page advertisement in the New York Times and calls for a legal regime in which the question is not one of heterosexual vs. homosexual marriage, but rather one in which marriage as an idea has been abolished. [12] In particular, the authors seek:

  • Legal recognition for a wide range of relationships, households and families - regardless of kinship or conjugal status.
  • Access for all, regardless of marital or citizenship status, to vital government support programs including but not limited to health care, housing, Social Security and pension plans, disaster recovery assistance, unemployment insurance and welfare assistance.
  • Separation of church and state in all matters, including regulation and recognition of relationships, households and families.
  • Freedom from state regulation of our sexual lives and gender choices, identities and expression. [13]

In other words, "marriage," insofar as it exists, is to be entirely fluid and individualized, religious "interference" in public matters is to be minimized as are legal barriers to sexual activity, all while individual access to government welfare is to be maximized.

Contemporary Methodology

International Law and "Reproductive Healthcare": The goals of contemporary cultural Marxists cannot be achieved directly, for the people of the world do not agree with them. [14] Instead they must be achieved by guile and deception, using the back doors of international law and the judiciary. This is not an imputation of malign motives, for cultural Marxists have admitted as much. An explicit example of this is the detailed plan to advance the pro-abortion agenda by stealth that was disclosed in 2003. A planning memo of the pro-abortion Center for Reproductive Rights was leaked. It was, in turn, read into the Congressional Record by Congressman Chris Smith (R, NJ). [15]

The document detailed the stages in pursuing a plan to build "customary international law" so as to guarantee a "right" to abortion. While no such right has ever been recognized by name in any UN document, pro-abortion forces assert that the seemingly harmless words "reproductive health care" actually mean abortion, the very opposite of maternal health care. The term dates to the outcome document of the Cairo Conference on Population and Development in 1994, in which a number of nations specifically attached statements making it clear that abortion was not covered by this term.

Nonetheless, pro-abortion lawyers assert that the use of the phrase "reproductive health care" since Cairo has somehow morphed to include abortion, and that the repetitious use of that language in UN documents means that the whole world has already agreed to it, despite the fact that the same nations who objected at Cairo still have anti-abortion laws in place. However, as we will show below, the decisive thing for pro-abortion lawyers is their conviction that their allies among the judiciary will nevertheless interpret the language as they desire.

The Center for Reproductive Rights' (CRR) documents acknowledged, "there is a stealth quality to the work: we are achieving incremental recognition of values without a huge amount of scrutiny from the opposition. These lower profile victories will gradually put us in a strong position to assert a broad consensus around our assertions." [16]

Normalizing an Agenda Through Jurisprudence: While the surest way to enshrine such a social policy in international law would be through clearly delineated norms in multilateral human rights treaties (which is the opposite of a stealth approach), such a strategy is highly unlikely to win many states outside of Europe as signatories to such a treaty since most people of the world do not support it. Thus, the CRR noted, "The other principal option is to develop 'soft norms' or jurisprudence (decisions or interpretations) to guide states' compliance with binding norms." [17]

While CRR was agitating for abortion rights, the same tactics used to undermine life are used to undermine family and religion. As we have shown in our previous paper, these "soft norms" [18] have been used by institutions like the Committee on the Rights of the Child and the Committee to End Discrimination against Women to urge legalizing prostitution (targeting Mexico and Liechtenstein), banning Mother's Day (targeting Bulgaria), expanding state childcare (targeting Slovakia, Slovenia, and Germany), and stifling religious conscience rights (targeting Italy, Ireland, Norway, Croatia, Libya, and China).

Coordinated efforts are underway to normalize these "soft norms" for use by compliance committees and national courts. These efforts at subversion are now out in the open for all to see. [19]

Yogyakarta Principles: Sexual Orientation and Gender Identity. Of these efforts the most notorious is the Yogyakarta Principles on The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. The result of a 2006 meeting of liberal human rights activists, the 29 Yogyakarta Principles seek to "address a broad range of human rights standards and their application to issues of sexual orientation and gender identity." According to the Principles, international human rights law requires a number of actions with regard to sexual orientation and gender identity, such as same-sex marriage (Article 24 of the Yogyakarta Principles: "Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members."), and a curtailing of religious freedom (Article 21: "States shall...Ensure that the expression, practice and promotion of different opinions, convictions and beliefs with regard to issues of sexual orientation or gender identity is not undertaken in a manner incompatible with human rights.").

Of course, sexual orientation and gender identity are not recognized in mainstream international human rights law. Thus, an activist statement of principles (such as the Yogyakarta Principles) declaring it s o is not enough. Knowing this, the authors of the Yogyakarta Principles recommend the next steps:

a) The United Nations High Commissioner for Human Rights endorse these Principles, promote their implementation worldwide, and integrate them into the work of the Office of the High Commissioner for Human Rights, including at the field-level;

b) The United Nations Human Rights Council endorse these Principles and give substantive consideration to human rights violations based on sexual orientation or gender identity, with a view to promoting State compliance with these Principles;

c) The United Nations Human Rights Special Procedures pay due attention to human rights violations based on sexual orientation or gender identity, and integrate these Principles into the implementation of their respective mandates...

These actions would serve to "mainstream" the radical ideas espoused in the Yogyakarta Principles, thus allowing them to be iterated and reiterated as "soft norms." The chances for success here are significant, given that those who signed the Yogyakarta Principles included many people with positions of responsibility in the world of international human rights, including eight UN Rapporteurs, and six Chairs and High Commissioners of International Human Rights Committees, including Mary Robinson, former President of Ireland and UN High Commissioner for Human Rights. [20]

In fact, the mainstreaming of the Yogyakarta Principles is already well under way. In December, 2008, the French government submitted to the Secretary General a declaration to be considered by the General Assembly of the United Nations on "sexual orientation" and "gender identity." While the goal of the declaration was ostensibly "to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties," the declaration in fact called for sexual orientation and gender identity to be protected under international human rights law. Under the otherwise benign auspices of trying to decry harsh criminal penalties for homosexuals, the French sought to create a soft norm of non-discrimination on the basis of sexual orientation at the international level, in accordance with the Yogyakarta Principles, much like the strategy the Center for Reproductive Rights proposed to follow for "abortion rights." 65 countries signed the French declaration at the time, as did the United States following the inauguration of Barack Obama. [21]

Transnationalism

The key legal theory behind these goals is the concept of "transnationalism." Transnationalism is a doctrine of supranational international law binding the internal affairs of nations. Transnationalism has three primary components:

  1. a reinvention of "customary international law" ("CIL") whereby its norms are generated by elite legal theorists and bureaucrats rather than consistent state practice,
  2. an understanding that treaties execute themselves (that is without authorizing legislation), and that their authority and scope is almost infinitely broad,
  3. Supreme Court reinterpretation of Constitutional provisions in such a way as to "reflect selected contemporary foreign and international practices." [22]

It is easy to see that this undermines democracy and the independence of nations. Transnational jurisprudence allows judges to unmoor themselves from the clear words of their own country's laws, and select, at will, alien decisions, declarations, and interpretations that happen to suit their ideological preferences-which almost invariably are anti-family and anti-religion-as the bases for their decisions.

As Gordon Silverstein, politics professor at University of California at Berkeley , said in The New Republic,

"[Contemporary liberals], starting with the civil rights movement and accelerating in the wake of the Watergate crisis in the mid-1970s, put their faith and hope in the courts while largely abandoning what they perceived to be an increasingly corrupt or incompetent political system. Law-and the Supreme Court-seemed to offer a cleaner, more transparent and morally superior way to achieve policy goals. It was also more efficient: One requires a modest team of lawyers in New York and Washington --the other requires armies of workers in 435 congressional districts. And legal decisions don't require the negotiation, compromise, and bargaining that is the very essence of the policymaking process" [emphasis added]. [23]

This process of achieving cultural change through the courts rather than through democratic legislation has increasingly involved using foreign documents and determinations, such as international treaties and committee decisions.

The Constitution, the Supreme Court and Transnationalism: However, the United States has a written constitution. Thus, there is a written document that the Supreme Court is obligated to apply in any case concerning fundamental rights. The Court is not free under our system of government to rule as it thinks "best;" rather it is to rule as the law requires. Regrettably several Supreme Court Justices have indicated a tendency to interpret our constitution based on what was said by others, in other lands, about other documents. For example, Supreme Court Justice Ruth Bader Ginsburg said during a lecture at Ohio State University's Moritz College of Law, "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" [24]

Justice Ginsburg is not alone in taking that position. In fact, her colleague on the Supreme Court, Stephen Breyer, has expressed similar opinions in the past:

"[W]e find an increasing number of issues, including constitutional issues, where the decisions of foreign courts help by offering points of comparison. This change reflects the 'globalization' of human rights, a phrase that refers to the ever-stronger consensus (now near world-wide) as to the importance of protecting basic human rights, the embodiment of that consensus in legal documents, such as national constitutions and international treaties, and the related decision to enlist judges - i.e. independent judiciaries - as instruments to help make that protection effective in practice." [25]

Justice Anthony Kennedy's views on the use of foreign law have also played important roles in several high-profile court cases. A prime example is Lawrence v. Texas (2003), a decision which overturned existing Supreme Court precedent, Bowers v. Hardwick (1986), upholding the constitutionality of a Georgia anti-sodomy statute. [26] In his majority opinion, Justice Kennedy explained,

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom....Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. [27]

In other words, Justice Kennedy will interpret our constitution based on what other nations say about theirs. While the justices claimed to rely upon the "enlightened world," they are obviously choosing nations that accord with their own personal predilections (after all, sodomy is criminalized in much of the world other than Europe ). [28]

Transnationalism around the World: This sort of judicial interference is becoming common in courts all over the world. Judges increasingly look to their international peers and to the so-called "soft norms" of international human rights in making their rulings.

A clear example of this is the recent decision by the High Court of Delhi at New Delhi, legalizing consensual sodomy in the face of Section 377 of the Indian Penal Code, which has been the law of India since 1861. The decision [29] maintains that consensual homosexual acts are protected under the right to privacy inherent in liberty, even though "In India, our Constitution does not contain a specific provision for privacy..." Remarkably, the decision immediately decides to "refer to the case law in the US relating to the development of the right to privacy as these cases have been adverted to in the decisions of our Supreme Court." The Court goes on to cite United States Supreme Court decisions from Olmstead v. United States (1928) to Griswold v. Connecticut (1965), Roe v. Wade (1973), and Planned Parenthood v. Casey (1992), which contains Casey's famous "Mystery of Life" passage. [30]

The court's decision references the Yogyakarta Principles as persuasive authority regarding the nature of sexual orientation and the state's responsibility towards it. [31] It also takes note of the French-sponsored UN General Assembly declaration referenced above on discrimination based on sexual orientation, as well as of a statement delivered to the General Assembly by the UN High Commissioner for Human Rights, comparing the criminalization of sodomy to apartheid, and maintaining that it is "inconsistent...with international law." [32]

Likewise, recent foreign court decisions liberalizing abortion follow the same path of referencing international soft norms in their decisions. [33] The paramount example is in Colombia, where abortion was legalized in certain cases by the country's Constitutional Court, in part relying on a 1999 upbraiding of Columbia by the CEDAW compliance committee for not legalizing abortion. In the decision, the court cited "international authorities," in particular the CEDAW committee, in order to overturn democratically enacted restrictions on abortion.

Pro-family Aspects in International Human Rights Documents

It bears reiterating that the policies of cultural Marxists that seek to dismantle marriage and religion and promote abortion do not have a basis in international law, although they use the structures of international law. As one can see, the foundational architecture of international human rights, going back to the 1948 Universal Declaration of Human Rights, has protected and promoted marriage and religion, and does not provide a right to abortion.

    1. Universal Declaration of Human Rights -

On marriage:

Article 16:

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

On religion:

Article 18:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

On life:

Article 3:

Everyone has the right to life, liberty and the security of person.

    1. International Covenant on Civil and Political Rights (1966) -

On marriage:

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

On religion:

Article 18:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions."

On Life:

Article 6-1:

Every human being has the inherent right to life. This right shall be protected in law. No one shall be arbitrarily deprived of his life.

Efforts to use international law to undermine marriage and religion and to promote abortion fly in the face of documents like those referenced above and the clear meaning of their provisions, which is why supporters of true human rights and international law have been working to counter the activism of cultural Marxists.

Conclusion

A consistent tenet of cultural Marxists is the necessary marginalization of family and religion and promotion of abortion as central to the achievement of sexual liberation. While the family can no longer be assaulted directly, it is under threat from the philosophical heirs of Engels, through the effort to develop new international norms at the United Nations and other international fora.

As these norms and their proponents grow in influence, the ability of sovereign nations to resist them is reduced. Thus, what the UN says matters. It matters because people committed to transnationalist views use those UN statements in American courts to undermine traditional American support for the family, life and religion.



[1] William L. Saunders is an human rights attorney in Washington, DC, working for a nonprofit. The views expressed are his own.

[2] Patrick F. Fagan, William L. Saunders, and Michael A. Fragoso, "How U.N. Conventions on Women's and Children's Rights Undermine Family, Religion, and Sovereignty," May 2009, http://www.frc.org/insight/how-un-conventions-on-womens-and-childrens-rights-undermine-family-religion-and-sovereignty-(accessed: February 24, 2011).

[3] Much anti-family and anti-religion ideology also has its roots in the French Philosopher Jean-Jacques Rousseau, later, taken up by Engels and Marx. These strains are later added to by the work of Margaret Sanger and her later sexual-liberation allies. The radical feminist theorists, best exemplified by Shulamith Firestone combined all these elements to give and American cultural Marxist model of society, which now holds sway in much of American academia. A forthcoming paper by Patrick Fagan will elaborate on these theories.

[4] Frederick Engels, "Engels on the Origin and Evolution of the Family." Population and Development Review 14, no. 4 (December, 1988): 707.

[5] Ibid.

[6] Ibid, p. 720

[7] Freidrich Engels, "1892 English Edition Introduction to "History (the role of Religion) in the English middle-class," http://libcom.org/library/socialism-utopian-scientific-engels-history(accessed: February 24, 2011).

[8] A Woman Resident in Russia, "The Russian Effort to Abolish Marriage" The Atlantic Monthly, July 1926,

http://www.theatlantic.com/past/docs/issues/26jul/russianwoman.htm (accessed: February 24, 2011).

[9] Radhika Coomaraswamy, Reinventing International Law: Women's Rights as Human Rights in the International Community (Cambridge, Mass.: Harvard Human Rights Program, 1997).

EEOC Commissioner and Georgetown law professor, Chai Feldblum, argued similarly about gay rights: that freedom of religious beliefs do not protect one when gay rights interests collide with religious freedom. See Chai R. Feldblum, Moral Conflict and Liberty, 72 Brooklyn Law Review pp. 61-123 (2006).

[10] LifesiteNews,"United Nations Population Fund Leader Says Family Breakdown is a Triumph for Human Rights"February 3, 2009, http://www.lifesitenews.com/news/archive/ldn/2009/feb/09020312 (accessed: February 24, 2011).

[11] "Beyond Same-Sex Marriage," July 26, 2006, http://www.beyondmarriage.org/BeyondMarriage.pdf (accessed: February 24, 2011).

[12] For a fuller treatment of this see Ryan T. Anderson, "Beyond Gay Marriage," The Weekly Standard, August 17, 2007, http://www.weeklystandard.com/Content/Public/Articles/000/000/012/591cxhia.asp (accessed February 24, 2011).

[13] James Harold, "Separation of Church and State: Let Religion Define Matrimony," San Francisco Chronicle, August 6, 2003, http://www.mtholyoke.edu/offices/comm/oped/Seperation.shtml (accessed Feb. 24, 2011); Stephanie Coontz, "Taking Marriage Private," New York Times, 26 November, 2007, http://www.nytimes.com/2007/11/26/opinion/26coontz.html (accessed February 24, 2011).

[14] For example: fewer than a dozen countries perform same-sex marriages.

[15] "Documents Reveal Deceptive Practices by Abortion Lobby," Congressional Record, Extension of Remarks, December 8, 2003 , p. E2534, http://www.cwfa.org/images/content/smithstatements.pdf (accessed: February 24, 2011).

[16] Ibid. p.E2535

[17] Ibid.

[18] Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "hard law" in the future. This "hardening" of soft law may happen in two different ways. One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law. Soft law is a convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments for political and/or economic reasons but when the parties wish to negotiate something in the meantime.

[19] Douglas Sylva and Susan Yoshihara, "Right by Steath: the Role of UN Human Rights Treaty Bodies in the Campaign for an International Right to Abortion," National Catholic Bioethics Quarterly, vol. 7, no1 (Spring 2007): 97-128.

[20] The Yogyakarta Principles: Principles on The Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (March 2007) at 34-35, http://www.yogyakartaprinciples.org/principles_en.pdf (accessed: February 24, 2011).

[21] For the text of the Declaration and an original list of signatories, see http://ilga.org/ilga/en/article/1211. For an updated list of signatories, see http://www.franceonu.org/spip.php?article4092. Also note the reference in the French United Nations site to the Yogyakarta Principles.

[22] M. Edward Whalen III, "Harold Koh's Transnationalism," March 5, 2009, http://www.eppc.org/programs/constitution/news/newsID.3810,programID.39/news_detail.asp (accessed: February 24, 2011).

[23] Gordon Silverstein, "A Boring Bench? " The New Republic, posted May 27, 2009

http://www.tnr.com/article/politics/boring-bench (accessed: February 24, 2011).

[24] Adam Liptak, "Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa," The New York Times, 11 April, 2009, http://www.nytimes.com/2009/04/12/us/12ginsburg.html (accessed: February 24, 2011).

[25] Stephen Breyer, "The Supreme Court And The New International Law," The American Society of International Law, 97th Annual Meeting, Washington, D.C., April 4, 2003, http://www.aclu.org/hrc/JudgesPlenary.pdf (accessed: February 24, 2011).

[26] Lawrence v. Texas, 539 U.S. 558 (2003).

[27] Lawrence v. Texas, 539 U.S. 558 (2003) p. 16

[28] Kennedy also looked to international law in the juvenile death penalty case of Roper v. Simmons 543 U.S. 551 (2005), in which he referenced the Convention on the Rights of the Child, to which the United States is not a party.

[29] Naz Foundation v. Government of NCT of Delhi and Others, No.7455/2001 (Delhi, H.C.) (Jul. 2, 2009) (India).

[30] In Planned Parenthood v. Casey, 505 US 833, 852 (1992) the "plurality" (O'Connor, Souter, Kennedy) of the majority (ie, those 3 plus Stevens and Blackmun) stated: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." This is the "mystery of life" passage, which the plurality is saying is essential to understanding "liberty" under the 5th and 14th Amendments of the U.S. Constitution. Justice Kennedy, whom many think was the actual author of the plurality opinion in Casey, relied upon the mystery passage again in Lawrence v. Texas (see above).

[31] Ibid sections 43-4

[32] Ibid section 59

[33] A similar situation occurred in Mexico. Although the Mexican Constitution provides a right to life, Mexico City, a state in Mexico's federal system, in 2008 legalized abortion early in pregnancy. Given the right to life protection in the national constitution, the constitutionality of the Mexico City law was challenged. The Mexican decision is available at: http://ss1.webkreator.com.mx/4_2/000/000/01f/c72/ENGROSECOSSxcdO-146-07.pdf (accessed: February 24, 2011 ).

Meet The Author
Pat Fagan Senior Fellow and Director, MARRI

Patrick F. Fagan is Senior Fellow and Director of the Marriage and Religion Research Institute (MARRI), which examines the relationships among family, marriage, religion, (Full Bio)

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