The Obama administration will endorse a U.N. declaration calling for the worldwide decriminalization of homosexuality that then-President George W. Bush had refused to sign, The Associated Press has learned. ...I'm frankly torn on this one. Obviously, I don't think sodomy, or any other immoral sexual conduct, should be a capital offense (I won't pretend to be a better man than I am, and I like my neck and spinal cord in one piece). Nor even be an actively prosecuted crime, either.¹
The officials spoke on condition of anonymity because Congress was still being notified of the decision. (CM: Will any member of Congress have the cojones to say nyet to this diktat or make a cause celebre out of it? ... Let's see Wednesday.)
They said the administration had decided to sign the declaration to demonstrate that the United States supports human rights for all. ...
"In the words of the United States Supreme Court, the right to be free from criminalization on the basis of sexual orientation 'has been accepted (CM: By whom, on what basis??) as an integral part of human freedom'," the official said.
According to negotiators, the Bush team had concerns that those parts could commit the federal government on matters that fall under state jurisdiction. In some states, landlords and private employers are allowed to discriminate on the basis of sexual orientation; on the federal level, gays are not allowed to serve openly in the military. It was not immediately clear on Tuesday how the Obama administration had come to a different conclusion. (CM: See below; I'm not sure they did.)
When it was voted on in December, 66 of the U.N.'s 192 member countries signed the declaration — which backers called a historic step to push the General Assembly to deal more forthrightly with anti-gay discrimination.
But 70 U.N. members outlaw homosexuality — and in several, homosexual acts can be punished by execution. More than 50 nations, including members of the Organization of the Islamic Conference, opposed the declaration.
Some Islamic countries said at the time that protecting sexual orientation could lead to "the social normalization and possibly the legalization of deplorable acts" such as pedophilia and incest. (CM: Now where O where might they have gotten such an idea.) The declaration was also opposed by the Vatican.
But at the same time, I'm pretty vigorously opposed to making anything a "right" or a "human right" under "international law" or treaties that could be enforceable by the U.N. or any now-realistically-conceivable judicial body. And not for reasons even remotely related to the specifics of homosexual conduct, but rather because I oppose giving the legal class any "words to work with" related to the current kulturkampf, any any words on any topic whatever to the international juridical class ("Davos Man," more or less). Rather, it's to the good of all nations that every nation have the sovereign right, under both the principles of (1) subsidiarity and (2) consent of the governed, to determine its own laws and policies on matters of morality, i.e., all laws and policies. Neither an unelected United Nations nor the international cosmopolitan class are a-priori morally superior to national governments in terms of their values (and more often than not, it's the reverse). And national governments, being closer to the actual people, will be better judges of what morals laws are fitting for a given people.
Further, I frankly doubt that the objective effect of this treaty will include preventing Iran or Afghanistan from hanging or stoning anybody. Iran will simply not sign the treaty, the Iranian Supreme Court will not do a Goodridge or Lawrence, and the Iranians will ignore any international tribunal on the matter. (Though hooray for all these things, in isolation.)
No ... what is much more likely is that some international tribunal or activist U.S. court will cite this treaty, despite its nonbinding nature, as representing some sort of international sensus fidelium and use it or cite it to strike down perceived anti-gay laws. After all, the Supreme Court already has used, as Ed Whelan describes here, a treaty the US did not even ratify as justification for striking down the death penalty for killers under 18. Who knows what can be done with a treaty one does ratify, even if it's nonbinding on its face?
The most cynical part of me, in fact, thinks that's exactly what the Obama administration wants, which is why I don't think the Obama administration necessarily came to a different conclusion from the Bush administration about the legal effects of the treaty. Team Obama just wouldn't mind if some international tribunal or an activist U.S. court were to cite this treaty as a basis for striking down, say, the ban on active homosexuality in the military or the federal or state legal definitions of marriage as a male-female union. Indeed, that'd be the best of both worlds, from their POV.² They and their gay-activist constituencies would get what they want substantively without having to risk political capital in a real political dispute for real stakes. "Hey, we have to do it, it's illegal under ... (bow our heads in reverence) international law."
¹ I think anti-adultery and anti-sodomy laws are useful to have on the books for other purposes, but I don't wanna go down that rabbit hole right now.
² There'd be a striking parallel to Obama's pusillanimous stance on same-sex marriage, which is the most spectacularly incoherent drivel to come out of his mouth, a 200-proof stream of self-serving political cowardice ... regardless of the merits of the issue, even (especially?) if you back gay marriage. Obama says he's against gay marriage (so far, so good; or, in principle, "booooo!!!"). Yet he opposes codifying that belief into law, whether statutorily or constitutionally, whether at the state or federal level, calling every such law (DOMA, Federal Marriage Amendment, Prop 8, etc.) hateful, bigoted, mean-spirited and the restof the litany. But not doing so so loudly as to risk backlash. At the same time, he praises state-court decisions that strike down such state codifications of his supposed beliefs, and he promises, both affirmatively by whom he praises and negatively by whom he damns, more judges in that mould.