David M. Smolin, Overcoming Religious Objections to the Convention on the Rights of the Child

• Publication year: 2006

OVERCOMING RELIGIOUS OBJECTIONS TO THE CONVENTION ON THE RIGHTS OF THE CHILD

David M. Smolin^*

INTRODUCTION

This Essay is an exercise in mediation between children's rights groups and conservative religious groups within the United States. Of course the two groups are not mutually exclusive; many persons of conservative religious belief are significantly involved in the human rights or children's rights movements. However, to a significant degree, the two groups have collided over the Convention on the Rights of the Child (CRC).¹The United States is virtually the only nation that has not ratified the CRC,²and some religious groups' opposition to ratification has apparently played a significant role.³

Unfortunately, the alliance of mutual concern that should exist between conservative religious communities and human rights advocacy, including children's rights, has foundered to some degree due to the sharp disagreement about U.S. ratification of the CRC.

Mediation, as a method of dispute resolution, requires the concerted effort of each side to understand the other in an environment of mutual respect. Because I am an active participant in the kind of religious community that has opposed ratification of the CRC, while also being actively involved in scholarship on children's issues, I am hopeful that this Essay can further the kind of understanding and respect conducive to productive discussions of the issues.

The title of this Essay may erroneously suggest that its purpose is to demonstrate that there are no valid religious objections to the CRC. Thus, some may expect me to attempt a definition of religious doctrine that would lead logically to support for the CRC. Instead, I will describe the objections to the CRC commonly mentioned by some religious conservatives, but then suggest the kinds of reservations, understandings, and declarations that could logically overcome these objections. Overcoming religious objections to the CRC from this standpoint does not require so much a modification of religious belief as it does a somewhat altered understanding of the nature and obligations of the CRC. At the same time, I attempt here to place the religious objections to the CRC within the context of political and legal traditions and conflicts within the United States. Seen in this light, it may be that the so- called "religious" objections to the CRC have as much to do with the peculiar legal and political situation of the United States as they do with religious doctrine per se.

I. OVERCOMING RELIGIOUS STEREOTYPES: RELIGIOUS CONSERVATIVES IN THE UNITED STATES AND HUMAN RIGHTS ADVOCACY

The largest groups of religious conservatives in the United States are evangelical Protestant Christians and traditionalist "high church" Christians, including Roman Catholics, Anglicans, and others. While some would seek to marginalize such groups as a kind of far right fringe, the size of this group and the variety within its members suggest that they constitute a part of mainstream American culture. Evangelical Protestants alone represent between one- quarter and one-third of the population of the United States.⁴While those who identify themselves as Christian constitute a large majority of the American population, those whose religious beliefs might be considered conservative or traditionalist constitute a large plurality of Americans. While many who are religious conservatives are also politically conservative, that relationship is not automatic. The large group of theologically conservative Protestant and Roman Catholic Christians in the United States divide to a significant degree over political issues, and many would be considered political liberals or moderates.

Because active opposition to the CRC has been concentrated in politically conservative-or at least neo-conservative-groups, the key religious opposition to the CRC has come from those who are both politically and religiously conservative. The term "religious right" is sometimes used to stereotype such groups, but many would consider themselves to be both theologically conservative and traditionalist on social issues without identifying with the so-called religious right. Political beliefs interact in complex ways with religious beliefs so that even those who are in some ways both religiously and politically "conservative" may yet not fall within the stereotyped beliefs of the so-called religious right. Indeed, even many who embrace the religious right may not fit the overdrawn stereotypes sometimes used to describe this group.

For present purposes, it is important to note that among both Protestant evangelicals and Roman Catholics, including those clearly identified with the so-called religious right, there has been a great deal of human rights activism in recent years. Religious conservatives in the United States have been particularly active in advocating for human rights in regard to certain aspects of human and child trafficking, international religious liberty, and human rights abuses in Sudan.⁵Religious conservatives are also active in response to both large-scale disasters and chronic need, and they participate actively in both direct assistance and political efforts aimed at alleviating a wide range of human ills. This activism has led many leaders and participants of religious conservative movements within the United States to positively identify with much of the language and goals of the broader human rights movement. Indeed, religious conservatives within the United States have supplied much of the activism and passion in political efforts to engage the United States politically in support of international human rights.⁶

While former President Jimmy Carter is not viewed as politically conservative, his combination of human rights advocacy and open evangelical piety, both during and after his presidency, has furthered an identification of evangelical Christian political activism with support for human rights. The fact that this activism has occurred among American evangelicals of varying political views and both political parties over several decades suggests that there is a natural congruence between many forms of American Protestant evangelicalism and human rights activism. For Roman Catholics, the approach of the late Pope John Paul II has been quite significant. Despite the church's well-publicized conflicts with some human rights activists over issues such as abortion and contraception, John Paul II deeply embraced the language of human rights to express the church's concern for human dignity and its activism on behalf of the poor and vulnerable. Thus, Roman Catholics throughout the world, including the United States, have become habituated to the ideals and language of the human rights movement, even when there have been sharp disagreements about the import of those ideals for particular issues.⁷

This largely positive picture of the relationship between theologically- conservative Christianity and the human rights movement does not capture all nuances. Some evangelicals are still influenced by anti-United Nations perspectives that have their roots in dispensational Protestant fundamentalism, and these perspectives sometimes carry over to forge a deep distrust of

"international human rights."⁸However, efforts to understand contemporary evangelicalism, or even fundamentalism, primarily through the lens of these shrinking minority elements are not productive. An accurate account of religious opposition to the CRC must account for the combination of human rights activism and opposition to the CRC, which is prevalent in much of the conservative religious community in the United States.

II. RATIFYING THE CRC PIECE BY PIECE: THE UNTOLD STORY

During the twentieth century a fierce debate raged within U.S. constitutional law as to whether the Bill of Rights had been made applicable to the states through the enactment of the Fourteenth Amendment.⁹The Supreme Court never accepted the argument that the Fourteenth Amendment had incorporated and applied the entire Bill of Rights against the states, but it did accept incorporation on a clause-by-clause basis. By the late twentieth century, most of the important content of the Bill of Rights had been held applicable to the states through the process of selective incorporation.¹⁰

The incorporation battle serves as a rough analogy to the situation with the CRC. While advocates for the CRC have argued for ratification of the entire document, and opponents have opposed ratification, the United States has been involved in a process of ratifying and implementing critical parts of the CRC on an article-by-article basis. The process has been facilitated by the central role of the CRC in the children's rights movement. The CRC serves as a kind of umbrella charter whose broad terms are filled out and implemented, often by additional treaties focused on particular issues. The failure of the United States to ratify the overall charter (the CRC) has not stopped it from ratifying the treaties that elaborate upon various articles of the CRC. Ironically, this process of article-by-article implementation of the CRC through other treaties has occurred without any real political controversy within the United States and often with the active support of conservative religious communities. The support of the conservative religious communities for these children's rights treaties has been consistent with their broader support for human rights during this period.

The treaties involved in this process include the Worst Forms of Child Labour Convention,¹¹the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,¹²the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,¹³the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, of the United Nations Convention Against...