Cumulative jurisprudence and human rights: the example of sexual minorities and hate speech

Abstract

Leading non-discrimination norms in post-1945 human rights instruments have generally enumerated specified categories for protection, such as race, ethnicity, sex, and religion. They have often omitted express reference to sexual minorities. However, through ‘such as’ or ‘other status’ clauses, or otherwise open-ended phrasing or interpretation, such instruments have generated a ‘cumulative jurisprudence’, whereby sexual minorities subsequently become incorporated through analogical reasoning. That cumulative jurisprudence has yielded protections for sexual minorities through norms governing, e.g., privacy, employment, age of consent, and freedoms of speech and association. Hate speech bans, too, have often been formulated with reference only to more traditionally recognised categories, particularly race and religion, rarely making express reference to sexual minorities. It might therefore be expected that the same cumulative jurisprudence should be applied, such that their scope might be extended to encompass sexual minorities. In this paper, however, that approach is challenged. It is argued that hate speech bans suffer in themselves from deep flaws. Either they promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, they would dramatically limit free speech. While sexual minorities within longstanding, stable and prosperous democracies should generally enjoy all human rights, it is argued that they should not seek the protection of hate speech bans, which run real risks of betraying fundamental principles of human rights law.

Keywords:

• discrimination
• free speech
• gay rights
• hate speech
• sexual minorities

Acknowledgements

The ideas presented in this piece benefited from a staff seminar held at Durham University in April 2007, chaired by Erika Rackley and facilitated by Helen Fenwick and Gavin Phillipson, and from a subsequent one-day conference at Durham entitled ‘Sexuality, Hatred and Law’, 6 May 2008, organised by Neil Cobb and Gavin Phillipson. Thanks also to James Weinstein and two anonymous reviewers for their detailed comments, and to Phil Chan for his kind assistance.

Notes

See Au-delà de la Haine, documentary film directed by Olivier Meyrou (2005). Cf. Caroline Constant, ‘Leçon d'humanité’, L'Humanité, 14 March 2007, http://www.humanite.presse.fr/journal/2007-03-14/2007-03-14-847695 (accessed 19 September 2008).

Like concepts of ‘race’, ‘ethnicity’, and ‘religion’, concepts of ‘sexual orientation’ and ‘sexual minorities’ may be fluid and are not amenable to conclusive definitions. For the limited purposes of human rights law, the term ‘sexual minorities’ may be used generally ‘to denote people whose preferences, intimate associations, lifestyles, or other forms of personal identity or expression actually or imputedly derogate from a dominant normative-heterosexual paradigm’; see Eric Heinze, Sexual Orientation: A Human Right (Dordrecht, The Netherlands: Martinus Nijhoff, 1995), 61.

For a landmark text, see, e.g., Mari Matsuda, Charles Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, eds, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview, 1993). For other works, see, e.g., authors cited in Richard Delgado, ‘About Your Masthead: A Preliminary Inquiry into the Compatibility of Civil Rights and Civil Liberties’, Harvard Civil Rights–Civil Liberties Law Review 39 (2004): 1.

Michel Foucault, Histoire de la sexualité I: La volonté de savoir (Paris: Gallimard, 1976).

See also Michel Foucault, Histoire de la folie à l'âge classique (Paris: Gallimard, 1972).

Randall Kennedy, Nigger: The Strange History of a Troublesome Word (New York: Vintage, 2003), xii.

See, e.g., Kevin Boyle, ‘Hate Speech: The United States versus the Rest of the World?’, Maine Law Review 53 (2001): 487, 489.

See, e.g., Otto-Preminger-Institut v. Austria, Eur. Ct. H. R., Ser. A, No.295-A [1994] (upholding a blasphemy law protective of the Roman Catholic majority). See also Wingrove v. United Kingdom [1996] Eur. Ct. H. R. 1937.

Cf. Eric Heinze, ‘Viewpoint Absolutism and Hate Speech’, Modern Law Review 69 (2006): 543, 558–9. Cf. also Eric Heinze, ‘Towards the Abolition of Hate Speech Bans: A “Viewpoint Absolutist” Perspective’, in Religious Pluralism and Human Rights in Europe, ed. Titia Loenen and Jenny Goldschmidt (Antwerp: Intersentia, 2007), 295.

993 UNTS 3, entered into force on 3 January 1976.

For periodically updated data on ratifications, accessions, successions, reservations, and declarations, see, e.g., Office of the United Nations High Commissioner for Human Rights (UNHCR), ‘Ratifications and Reservations’, http://www.ohchr.org/english/countries/ratification/index.htm (accessed 19 September 2008).

Cf., e.g., Heinze, Sexual Orientation, section 12.3; Eric Heinze, ‘Equality: Between Hegemony and Subsidiarity’, Review of the International Commission of Jurists 52 (1994): 56. Cf. also, e.g., Marc Bossuyt, L'interdiction de la discrimination dans le droit international des droits de l'homme (Brussels: Bruylant, 1976).

See Heinze, ‘Viewpoint Absolutism and Hate Speech’, 556–9.

See, e.g., ibid., 544 (discussing the French case of Dominique Vanneste). See also, e.g., Jan-Peter Loof, ‘Freedom of Expression and Religiously-Based Ideas on Homosexuality: European and Dutch Standards’, in Religious Pluralism and Human Rights in Europe, ed. Titia Loenen and Jenny Goldschmidt (Antwerp: Intersentia, 2007), 267.

660 UNTS 195, entered into force on 4 January 1969.

Cf. UNHCR, note 11 above.

For some standard accounts, see, e.g., John D'Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940–1970 (Chicago: University of Chicago Press, 1983); Toby Johnson and Toby Marotta, The Politics of Homosexuality (Boston: Houghton Mifflin, 1981). Similarly, Marxist and left-wing approaches in Europe tended to aggregate the interests of outsider groups. See, e.g., Mario Mieli, Elementi di critica omosessuale (Turin: Giuliu Einaudi, 1977).

Cf. text accompanying notes 32–44 below.

Cf., e.g., Sexual Orientation, 12, n. 55 (noting limited attention to sexual orientation within the United Nations through the 1980s).

Ibid., ch. 8.

Ibid., 136.

Cf. text accompanying notes 32–44 below.

Heinze, Sexual Orientation, ch. 3.

Ibid., ch.10.

Ibid., sections 14.3–14.5.

Ibid., chs 12–13.

See Korematsu v. United States, 323 US 214 (1944); Brown v. Board of Education, 347 US 483 (1954); Loving v. Virginia, 388 US 1 (1967).

See Reed v. Reed, 404 US 71 (1971). Since the Supreme Court in Reed did strike down the gender discrepancy in dispute, however, it could be argued that the Court was already anticipating a more stringent approach.

See Frontiero v. Richardson, 411 US 677 (1973). The application of strict scrutiny by a plurality of only four justices, however, suggested a continuing unease about the appropriate judicial standard.

See Craig v. Boren, 429 US 190 (1976); United States v. Virginia, 518 US 515 (1996).

Bowers v. Hardwick, 478 US 186 (1986).

Romer v. Evans, 517 US 620 (1996)

Lawrence v. Texas, 539 US 558 (2003).

See the various views taken on the Supreme Court's standards of review in, e.g., Randy E. Barnett, ‘Justice Kennedy's Libertarian Revolution: Lawrence v. Texas’, Cato Supreme Court Review (2002–03): 21; Laurence H. Tribe, ‘Lawrence v. Texas: The “Fundamental Right” that Dare Not Speak Its Name’, Harvard Law Review 117 (2004): 1893.

Although Lawrence was not decided primarily on grounds of equal protection (non-discrimination), the Court noted the consistency of its holding with equal protection principles. Lawrence v. Texas, 574–5 (describing as ‘tenable’ a disposition of the case on equal protection grounds). See also ibid., 579 (O'Connor J., concurring) (arguing that the sodomy statute should be struck down on equal protection grounds).

See, e.g., John E. Nowak and Ronald D. Rotunda, Constitutional Law, 6th edn (St Paul, MN: West, 2000), §§ 14.11–14.30.

Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222 (entered into force on 3 September 1953), as amended by Protocols Nos 3, 5, 8, and 11 (entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998, respectively).

See Marckx v. Belgium, Judgment of 13 June 1979, Eur. Ct. H. R., Ser. A, No. 31.

See Inze v. Austria, Judgment of 28 October 1987, Eur. Ct. H. R., Ser. A, No. 126.

See Darby v. Sweden, Judgment of 23 October 1990, Eur. Ct. H. R., Ser. A, No. 187.

Dudgeon v. United Kingdom, Judgment of 22 October 1981, Eur. Ct. H. R., Ser. A, No. 45.

See generally, e.g., Eric Heinze, ‘Sexual Orientation and International Law: A Study in the Manufacture of Cross-Cultural “Sensitivity”’, Michigan Journal of International Law 22 (2001): 283.

See, e.g., United Nations Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, UN GAOR, UN Doc. CCPR/C/50/D/488/1992 (1994); Concluding Observations of the Human Rights Committee: Colombia, UN Doc. CCPR/C/79/Add.76 (1997), para.16; Concluding Observations of the Human Rights Committee: Sudan, UN Doc. CCPR/C/79/Add.85 (1997), para.8; Young v. Australia, Communication No. 941/2000, UN Doc. CCPR/C/78/D/941/2000 (2003). But see, e.g., Joslin v. New Zealand, Communication No. 902/1999, UN Doc. A/57/40 (2002), 214. Cf., e.g., Heinze, ‘Sexual Orientation and International Law’, 292.

See Scott Davidson, ‘Equality and Non-Discrimination’, in Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee, ed. Alex Conte, Scott Davidson, and Richard Burchill (Aldershot: Ashgate, 2004), 161, 172–4.

See text accompanying note 14 above.

Recommendation No. R (97) 20E (1997), Principle 1 (emphasis added). Cf., e.g., Boyle, ‘Hate Speech’, 489 (advocating incorporation of sexual orientation within hate speech bans).

See, e.g., Otto-Preminger-Institut v. Austria; Wingrove v. United Kingdom [1996] Eur. Ct. H. R. 1937. In Jersild v. Denmark, Eur. Ct. H. R., Ser. A, No.298 [1995], the Court struck down a penalty imposed for the broadcast of racist views solely because they were broadcast within the context of expository journalism, not presented as the views of the journalist or broadcaster. There was no suggestion that the original speakers merited any freedom of speech.

See, e.g., Conclusions and Recommendations of the Committee on the Elimination of Racial Discrimination: Denmark, UN Doc. CERD/C/304/Add.2 (1996), para. A.3 (suggesting that, notwithstanding the European Court of Human Rights' judgment, Denmark retained an obligation under CERD to punish the offensive speech in Jersild). See generally, e.g., Committee on the Elimination of Racial Discrimination, General Recommendation No.7: Measures to Eradicate Incitement to or Acts of Discrimination (32nd Session, 1985), UN Doc. A/40/18 (1985), para. 120, reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 (2003), 199.

See, e.g., ECRI General Policy Recommendation No. 1: Combating Racism, Xenophobia, Anti-Semitism and Intolerance, adopted on 4 October 1996; ECRI General Policy Recommendation No. 7 on National Legislation to Combat Racism and Racial Discrimination, adopted on 13 December 2002; European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 8, adopted on 17 March 2004; ECRI General Policy Recommendation No. 9 on the Fight against Anti-Semitism, adopted on 25 June 2004.

On the concept of ‘treatment’ under non-discrimination norms, cf. Eric Heinze, The Logic of Equality (Aldershot: Ashgate, 2003), part 1.

Cf. generally Bossuyt, L'interdiction de la discrimination.

Cf. generally, e.g., ‘What Is Disability’, Disability Knowledge and Research, http://www.disabilitykar.net/learningpublication/whatisdisability.html (accessed 19 September 2008) (noting controversy about the concept of ‘disability’).

Cf., e.g., Heinze, The Logic of Equality, ch. 16.

See, e.g., Matsuda et al., Words that Wound.

See, e.g., Joseph Shapiro, ‘Label Falls Short for Those with Mental Retardation’, report of 22 January 2007, National Public Radio, http://www.npr.org/templates/story/story.php?storyId=6943699 (accessed 19 September 2008).

American Psychological Association, ‘Guidelines for Non-handicapping Language in APA Journals’, http://apastyle.apa.org/disabilities.html (accessed 19 September 2008) (emphasis added).

On age discrimination generally, see, e.g., American Association of Retired People, ‘Age Discrimination at Work’, http://www.aarp.org/money/careers/jobloss/a2004-04-28-agediscrimination.html (accessed 19 September 2008).

See, e.g., Obesity Society, http://www.obesity.org (accessed 19 September 2008).

See, e.g., Guidelive.com, review by Robert W. Butler of 9 February 2007, http://www.guidelive.com/portal/page?_pageid=33,97283&_dad=portal&_schema=PORTAL&item_id=52579 (accessed 19 September 2008) (reprinted from Dallas Morning Post).

See text accompanying notes 46–7 above.

See, e.g., ‘Sport: Football Hoddle Sacked’, BBC Online Network, 3 February 1999, http://news.bbc.co.uk/1/hi/sport/football/270194.stm (accessed 19 September 2008).

See, e.g., Tania Branigan and Alan Travis, ‘Straw Moves to Ban Incitement against Gays’, The Guardian, 9 October 2007, http://www.guardian.co.uk/gayrights/story/0,,2186690,00.html (accessed 19 September 2008).

At a global level, most disabled persons lack the basic services they require: see, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 5: Persons with Disabilities (11th Session, 1994), UN Doc. E/1995/22 (1995), 19, reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 (2003), 24.

Recall the popular jibe long directed at Bush, ‘Somewhere in Texas a Village Is Missing an Idiot!’; see, e.g., Michael Honigsbaum, ‘Divided We Stand’, The Guardian, 17 October 2004, http://observer.guardian.co.uk/review/story/0,6903,1329057,00.html (accessed 19 September 2008).

To draw an analogy, it is not merely Falstaff but Jews who are smeared when Mistress Page disparages Falstaff's deceit by calling him ‘A Herod of Jewry’. William Shakespeare, The Merry Wives of Windsor, II.i.20.

Private communication of 24 December 2007, on file with author.

Otto-Preminger-Institut v. Austria.

According to Encyclopaedia Britannica: ‘In the early 1990s the [Austrian] population was 84 percent Roman Catholic and 6 percent Protestant (mainly of the Augsburg Confession). Some 4 percent followed other religions – including the Old Catholic and Orthodox churches, Judaism, and Islam – while some 6 percent had no religious affiliation.’ Britannica Online, http://www.britannica.com/eb/article-33395 (accessed 19 September 2008).

See Otto-Preminger-Institut v. Austria, para. 47 (interpreting article 9 of ECHR as protecting ‘the religious feelings of believers’ from ‘provocative portrayals of objects of religious veneration’).

Despite their advocacy of hate speech bans, Jean Stefancic and Richard Delgado have inadvertently noted that racist and other discriminatory incidents had increased in Europe after hate speech bans were introduced; ‘A Shifting Balance: Freedom of Expression and Hate Speech Regulation’, Iowa Law Review 78 (1992-3): 737, 745. Cf., critically, Heinze, Viewpoint Absolutism and Hate Speech', 577–8.

See, e.g., Disability Rights Commission, ‘The Holocaust – Perfection Is the Issue, Says Disability Rights Commission’, 26 January 2006, http://www.drc.org.uk/newsroom/news_releases/2001/the_holocaust_perfection_is.aspx (accessed 19 September 2008).

See, e.g., Matsuda et al., Words that Wound; Delgado, ‘About Your Masthead’.

Delgado, ibid., 15.

Richard Delgado and Jean Stefancic, ‘Images of the Outsider in American Law and Culture’, in Critical Race Theory: The Cutting Edge, ed. Richard Delgado and Jean Stefancic, 2nd edn (Philadelphia: Temple University Press, 2000), 131, 225, 229 (reprinted from Cornell Law Review 77 (1992): 1258) (emphasis in original).

Otto-Preminger-Institut v. Austria, para. 52. Cf. R.A. Lawson and H.G. Schermers, Leading Cases of the European Court of Human Rights, 2nd edn (Leiden: Ars Aequi Libri, 1999), 573.

Report of anonymous reviewer for publication in International Journal of Human Rights, delivered to me via electronic communication on 2 August 2007.

See Eric Heinze, ‘Even-handedness and the Politics of Human Rights’, Harvard Human Rights Journal 21 (2008): 7.

UN GA Res. 217A (III), UN Doc. A/810 (1948), para. 71.

Universal Declaration of Human Rights, arts 1, 2, 7, and 28.

See notes 46–9 above.

Report of anonymous reviewer, note 76 above.

Cf. generally, e.g., Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) (distinguishing between concepts of ‘policy’ and ‘principle’).

See, e.g., Matsuda et al., Words that Wound.

See Chaplinsky v. New Hampshire, 315 US 568, 571–3 (1942). Cf., e.g., Heinze, ‘Viewpoint Absolutism and Hate Speech’, 575–7.

See Wisconsin v. Mitchell, 508 US 476 (1993).

ECHR, art. 15; ICCPR, art. 4.

See, e.g., Korematsu v. United States, 323 US 214 (1944) (finding that national security may constitute a compelling government interest in abridging a constitutionally protected right).

Cf. ECHR, art. 1; ICCPR, art. 2(2).

Thus, for example, the United Nations Human Rights Committee's reference to ‘exigency’ inevitably presupposes levels of available resources to prevent violence or harm: General Comment No. 29: States of Emergency (article 4), UN Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 (2003), 186.

See, e.g., Conclusions and Recommendations of the Committee on the Elimination of Racial Discrimination: Bulgaria, UN Doc. CERD/C/304/Add.29 (1997), paras 8–9 (expressing concern about hate speech and hate crimes in Bulgaria).

See European Parliament Resolution of 26 April 2007 on homophobia in Europe, P6_TA-PROV(2007)0167, http://www.europarl.europa.eu/sides/getDoc.do?Type=TA&Reference=P6-TA-2007-0167&language=EN (provisional edition) (with special reference to Poland) (accessed 19 September 2008).

For a classic judicial statement, see, e.g., Whitney v. California, 274 US 357 (1927) (Brandeis J., concurring).