sjamar at law.howard.edu
Fri Apr 2 13:03:57 PST 2004
Thanks Mike. A couple of responses are compelled by your note - to
highlight the difference in perspective.
> 1. Defining the "inherent worth and dignity of each person" is a
> theological proposition. And it is probably the most broadly religious
> of any foundation of human rights.
Well, it may be a theological proposition. Or not.
> 2. I think the "broad consensus of people developed over time" is
> always, ALWAYS, amended in practice with "until we know better, and we
> choose to do it differently."
Hence the "over time" qualifier -- we learn more, we modify our
understandings and beliefs. The example of gay rights is a perfect
example of such change over time. The consensus is not static; it
changes. And the gay rights issue has not been something coming up
over the course of just a few years - it has been underway for decades
- and the pushing is bearing fruit now.
Same for women's rights - the consensus changed over time. But the
change over time is not the same as momentary majority.
One certainly can take issue with the extent to which "consensus" is
the right term; or how broad it has to be. But I stand by the phrase -
not as a pure type, but as generally accurate description.
Sometimes that change in understanding if forced by non-majoritarian
institutions - like the Court in Brown v. Board of Education. But
today, I think we have the proper broad consensus that segregation and
Jim Crow are wrong.
> The gay marriage debate is an excellent
> example. The broad consensus of people developed over time is that
> marriage is between a man and a woman. If rights are derived from that
> consensus, there is no such thing as a "right" to same-sex marriage.
> Yet in the span of a relative few years, the governors (judges, here)
> ignored the "weight of history, longitudinal consensus, and
> Perhaps this was the enlightened thing to do, yet it was not based on
> history and broad consensus; in fact, those arguments were pretty
> quickly disposed of on this list.
> 3. I agree that it most certainly matters for religious liberty. As a
> general proposition (with exceptions, of course, since theologies vary
> and people administer regimes in flawed ways), religious liberty has
> flourished in governments influenced by Christianity relative to those
> influenced by Islam (for example, generally, and subject to
> Muslims and atheists are politically free in France, England, and the
> United States. In comparison, Christians and atheists are not so
> politically free, even in Saudi, Syria, and Iran, for example. I
> it matters to religious freedom.
Well, in France Muslim women can't wear scarves in public schools. And
Turkey is a Muslim country that permits religious freedom. And India
under the Muslim raj centuries ago allowed Hinduism to continue. And
there are many Jews and Christians in Lebanon, Jordan, and Egypt.
I don't intend to enter into an extended debate about the relative
merits of one religious foundation over another - just that I don't
want lurkers to think it is all one-way.
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW mailto:sjamar at law.howard.edu
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
"When I grow up, I too will go to faraway places, and when I grow old,
I too will live by the sea."
"That is all very well, little Alice," said her grandfather, "but there
is a third thing you must do."
"What is that?"
"You must do something to make the world more beautiful."
from "Ms. Rumphius" by Barbara Cooney
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