Gay-rights as a particular instantiation of human rights.

• Author: Samar, Vincent J.

This article argues that lesbian, gay, bisexual, and transgendered (LGBT) rights are a particular instantiation of human rights. But in order to make this argument, several things must be done first. Preliminarily, it should be noted that some transgendered issues fall under the rubric of "gay-rights," even though, strictly speaking, they center most prominently on matters of gender and not sexual orientation.(1) Still, their gender aspects are often ignored because of concerns related to sexual orientation, such as whether a transgendered female can use a woman's washroom.(2) Arguably, the reverse may also be true of gays, lesbians, and bisexuals insofar as many of society's concerns regarding this group involve their not following gender roles, even though the discrimination against them is not usually seen as sex discrimination.(3) Bearing that in mind, among the various responsibilities of this article is to define--in the broad sense--what gay and lesbian rights are.(4) This is followed by a similar set of expressions defining what human rights are and an argument for how such rights get justified.(5) Once that is done, the connection between gay and lesbian rights and human rights is pursued within the context of a theory of political morality that establishes the centrality of human rights to all moral concerns.(6)

One small caveat should be noted. This article is about the ideals that constitute gay and lesbian rights generally, although it will from time to time look at specific aspects of American law. These ideals are not always clear from specific legal doctrines because the doctrines that make up this area are far from settled. Where, at least in American law, one might expect the doctrines to lead to a certain set of results given the way prior cases not involving gays or lesbians were decided, there is often that funny exception pinned somehow to the fact that one of the claimants is gay. The article is also not about the political mechanics of how to actually bring gay rights into legal existence, though to some extent mechanics are mentioned to show how institutions operate to promote, or not promote, human rights. Political pragmatism is essential to the latter task, but political pragmatism will not be sustained unless the ideals upon which it is built are firmly understood and supported. Spending time on a theory of ideals is thus a worthwhile effort even for activists and lawyers who work to achieve legal protections for LGBT people in society. Ideals are what this article will address.

1. WHAT ARE GAY AND LESBIAN RIGHTS?

   At the outset, the reader might note that while talk about gay and lesbian rights, and human rights in general, is relatively new to the political stage (natural rights talk only dates back to the early modern period(7)), the idea of a right itself is not new. Surely, the ancient Greeks and Romans had a sense of this concept, even though they did not have a word for it, for they understood that the law could be used, for example, to force the payment of a debt.(8) That being the case, what is new about the modern rhetoric of rights is that there is now a systematic language in which to pull together talk about who holds the right, what the right is are about, and who (if anybody) has a correlative duty associated with the right.

   One result of that change in dialog is to make clear a distinction between two uses of the word "right," since they are often confused in the political debate, if not in academic discourse.(9) This is especially true when people think of the word "right" in the context of what it is "right to do." In those situations, people who may, for example, be sympathetic to gay-rights will not always agree with every use of those rights. The distinction is between the word "right" when used as a noun and its use as an adjective.(10) This distinction is important because the two uses are easily confused when both get applied in a single context. For example, it may seem contradictory (although it is not) to say that Nazis have a legal, and possibly a moral, right to stage an anti-Semitic march in Skokie, Illinois (which is home to many holocaust survivors),(11) even though it is not morally right for them to do so.

   In this example, the former, or nominative, use of the word "right" refers to particular rights of freedom of speech and assembly that are due every individual or group based upon some political, legal or moral ideal.(12) The latter, or adjectival, use is evaluative of the particular action of Nazis marching in Skokie, which is presumably not what the ideal is ultimately aiming to achieve.(13) The point is that one can say that there exists an important right (in the nominative sense) to freedom of speech and assembly that is available to all people, while, at the same time, saying that one ought not to exercise that right for certain heinous purposes. This is separate from the situation where the exercise of the normative right itself may create a clear, present, and imminent risk of harm to life or property. In that case, we might want to say that the right to march is overridden by another right (such as the right not to be harmed) because it is considered the more important right. Here too, one has to be careful that the valuation of importance is not based on some altogether independent moral standard. Rather, it should be based on finding a common denominator that justifies both rights to see exactly why the latter trumps the former. Otherwise, rights rhetoric devolves into a kind of rule utilitarianism.(14)

   We can also say of all nominative rights that they fit a common language pattern, which Alan Gewirth describes with the following paradigm: A has a right to X against B by virtue of y.(15) Here A is the subject of the right, the right holder; X is the object of the right, the thing the right is to; B is the respondent of the right, the person, group or institution (if any) that has a duty to satisfy the right; and Y is the reason or justification for the right. Separate from this paradigm, Gewirth describes the institutional setting in which the right is held (law, morality, and etiquette), as well as its nature (whether it is a claim-right, a liberty, a power, or an immunity).(16) Regarding this last point, Gewirth follows Wesley Hohfeld, who distinguished rights claims into these four distinct varieties.(17)

   Claim-rights, like the rights that arise from contracts and agreements, involve correlative duties by others.(18) Liberties, like the liberty to pick up ten dollars lying in the gutter (where no limiting statute applies), involve no specific duty on the part of any other person.(19) Powers, like the power of the Congress to pass legislation, involve correlative liabilities on the part of citizens to obey the law.(20) Immunities, like the Fifth Amendment immunity against self-incrimination, involve correlative disabilities on the part of the state to take action, such as forcing a confession in a police investigation.(21)

   Another way to describe rights language would be to incorporate directly into the Gewirthian paradigm these explanations about the institutional setting and the nature of the right.(22) The incorporation seems preferable to the separation approach because incorporation makes clear the paradigm's applicability to the language of rights in general rather than limiting applicability to specific types of rights, like legal rights or moral rights. Consequently, one might write Gewirth's paradigm as: A has a U-V right to X against B by virtue of Y.(23) Here U is the institutional setting for the right and V is the specific nature of the right.(24) Regardless of which construction is adopted, not much is affected in the final analysis of the way rights are described.

   One final point to be noted here is that the rights being described fit better a will theory than an interest theory of rights. The difference is that in the case of the will theory, a right empowers its holder "to make a choice about the fulfillment of someone else's duty," whereas an interest theory sees rights as "legally or morally shielded against interference or non-assistance."(25)

   Given what has been described as the way the paradigm identifies rights, the question can be asked: Do gay and lesbian rights fit the paradigm? In general, the aphorism "gay and lesbian rights" really references a set, or cluster, of separate claims concerning privacy, nondiscrimination, freedom of speech, marriage, parenting, and so forth, put forth by gay and lesbian people against the state and other individuals. The set of claims is a set of rights because the claims are meant to afford advantages to the holders of the rights as opposed to disadvantages that accompany various theories of duty.(26) However, gay-rights also involve duties because the rights gay people are asserting are not just claims to a set of liberties or privileges, but also claims against others--that others not interfere and, in some cases, supply a benefit to the "right-holders."

   When the claims are negative, in the sense of demanding noninterference in the performance of certain actions, they are active rights claims.(27) In other cases, when the claims involve positive benefits others can provide, they are passive rights claims.(28) These passive rights claims may also be referred to as entitlements. For example, consider the difference between the right to nondiscrimination and the right to marry or adopt children. In the first case, the right to nondiscrimination is a negative right imposing a duty on employers, landlords, mortgage brokers and the owners of public accommodations, such as hotels and restaurants, not to discriminate on the basis of sexual orientation when deciding to whom they will rent or grant a loan, or who they will hire, promote, or serve. In the latter case, the right to marry or adopt children is a positive right demanding that the state grant gays and...