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Posts Tagged ‘human rights’

In oral submissions in the case seeking to overturn Propoition 8 in California, Kenneth Starr, the chief lawyer defending Proposition 8, on Thursday said that the majority has the power to overturn any right it so chooses to, including that of free speech.

As reported by ReutersKenneth Starr… repeatedly told the court that a simple majority could limit rights up to and including free speech under a state constitution designed to give citizens broad power to legislate through the ballot box.

Think about it  – any right, to anyone, would be subject to the whim of the majority at the time.

Starr’s position is extremely dangerous.

Scenario, the government creates an environment of extreme hostility against a specific minority at a specific time. There is a propposal launched to punish or ‘get rid of’ this minority, and the majority like sheep vote for it.

Imagine if Kenneth Starr’s opinion was law during the 50s comunist witch-hunt period?

Could the majority be so convinced to act in an extreme fashion against a disfavoured minority? Remember, a democratic Germany was convinced enough to vote for the anti-semitic Adolf Hitler.

Perhaps some of the words in the US declaration of Indepndence should be rewritten thusly:
We hold these truths to be generally agreed to at this time, that all men are created, if they correspond to cetain acceptable conditions, equal. That they are endowed by the majority with certain momentarilly granted Rights, that among these are Life, Liberty and the pursuit of Happiness, as the majorty may define them.

Is that the way it should read Mr Starr?

It seems to me that some Americans love their Declaration of Independence and Bill of Rights like a boxer loves their punching bag.

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Irrespective of our individual politics, especially surrounding contentious issues in human life, it is refreshing to read articles that appear to base arguments on the real life situation, and not on twisted interpretations or outright baseless fear-mongering. I found it interesting having these points to ponder.

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Even when taking into consideration cultural differences between countries and religions, some issues around marriage in some countries are beyond my understanding. If marriage is supposed to be strictly heterosexual (a situation I disagree with), that its primary instigation is love, and its primary purpose is procreation (something else I disagree with); marriage would seem to be something that must be entered into by two adults… But, it seems, not always.

An eight-year old Saudi Arabian girl who was married off by her father to a 58-year-old man has been told she cannot divorce her husband until she reaches puberty.

The rights of women, the rights of children.

What is the use or point of marriage when this is permitted to stand?

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Rights for one are rights for all
if it be else then none at all

I will state from the outset that I do not live in the US, nor am I from the US. I live and was born in Australia, a country that does not have a bill (or charter) of rights. Laws, their interpretation, and any rights that are recognised therein are decided by judges who are not elected to their position.

There is, at present, a discussion surrounding the possibility of the implementation of a bill of rights into Australian law. I hope that such a bill of rights does not follow the path of the US bill of rights or those from the states within the US (as I understand those paths to have been). One aspect of this path is the concept of inalienable (unalienable) rights as stated in both the US declaration of independence, and the California Constitution’s Declaration of rights.

Inalienable rights are those perceived to be intrinsic to human life and society within a code of laws; expressed in the declaration of independence as life, liberty, and the pursuit of happiness. Perhaps these broad constructs (life, liberty, etc.) are the embryo of what we know today as human rights (a line traceable through the UN declaration of human rights – 60 years old this month).  Rights that are considered inalienable are those which cannot be repudiated.  they cannot be legislated away by governments, nor can they be voted away by the majority… or can they?

As I see it, within the broad constructs of life, liberty, pursuit of happiness there would be specific aspects of being that pertain largely or exclusively to one of the constructs which have been deemed inalienable rights. These specific aspects may be defined as specific individual rights, within, or being intrinsic to, ones life, liberty, or pursuit of happiness. One of these recognised individual rights is the right to marry.

In the twentieth and twenty first centuries judges and the UN have recognised marriage as a basic human (inalienable) right. In 1948 the UN, in Article 16 of the Universal Declaration of Human Rights recognised the right to marry. In 1967 the US Supreme Court recognised that the right to marry extended to interracial couples as per the equal protection clause in the 14th amendment to the US constitution. In 2008 the Californian Supreme Court recognised that the right to marry extended to same-sex couples as per the equal protection clause in the Californian constitution. The California court determined the right of same sex couples to marry ‘to be part of fundamental liberty.’

It is now contemporary history that opponents of same sex marriage saw Proposition 8 placed onto the November 5 ballot and passed to overturn the decision of the Californian Supreme Court.

Supporters of same sex marriage have launched legal challenges against the passage of the proposition 8 claiming that the proposition was a review not an amendment to the constitution and is therefore invalid.

The California Attorney General Jerry Brown (as per his job) submitted to the court a document that supported the arguments of those who supported proposition 8, but he concluded with an argument that opposed prop 8 and called for its rejection on the grounds that a right that is recognised as inalienable should not be placed at the mercy of the majority.

In defending, and reconciling his apparent polarity of positions, he states in his brief to the California Supreme Court: Respondent Attorney General (himself) is the chief law officer of the state. In that capacity he is duty bound to uphold the whole of the constitution, not only the people’s reservation of the initiative power, but also the people’s expression of their will in the Constitutions Declaration of Rights.”

In this, I see him stating that he is the servant of two masters (the voters and the constitution), not the slave of one.  In that, he must accept, defend, and enact what the voters decide through the initiative process, but protect the rights in the constitution from the voters where necessary. He continues “In reconciling these separate constitutional protections, Respondent concludes that the initiative power could never have been intended to give the voters an unfettered prerogative to amend the Constitution for the purpose of depriving a disfavored group of rights determined by the Supreme Court to be part of fundamental human liberty.”

He appears to be arguing that there would be no point in having a declaration of rights (specifically inalienable rights of human liberty), if the voters have an unfettered prerogative to remove rights from people they don’t like at their whim. He sees this case as the thin edge of the wedge. In that while the current case is about the right of same sex couples to marry,  something determined by the Supreme Court to be part of fundamental liberty, the underlying issue goes far beyond the issue of same sex marriage; and as far as I am concerned it goes beyond just one state’s constitution, it smacks at the very relevance of a bill (or declaration) of rights. If the voters can remove the existing ‘fundamental’ right of same sex couples to marry, what rights can’t be removed from others?

If Proposition 8 is allowed to stand, there will be nothing to stop someone from proposing to overthrow the ban on interracial marriage… The precedent proposition 8 will create will place any and all protections for minorities at the will and whim of the voters. Jerry Brown poses the question; “At bottom, the question is whether rights secured under the state constitution’s safeguards of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.” In my opinion, if such inalienable rights can be removed by a majority vote, then there is no such thing as an inalienable right – in fact the very idea of a bill or declaration of rights will have been rendered irrelevant.

As goes California so goes the country?

I hope those in Australia who are considering implementing a bill of rights here are watching California very closely.

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MSNBC Countdown program, Monday 10 November, 2008. Keith Olbermann’s special comment on the passing of California’s Proposition 8.

Transcript of the Special Comment:

http://thenewshole.msnbc.msn.com/archive/2008/11/10/1667759.aspx

Finally tonight as promised, a Special Comment on the passage, last week, of Proposition Eight in California, which rescinded the right of same-sex couples to marry, and tilted the balance on this issue, from coast to coast.

Some parameters, as preface. This isn’t about yelling, and this isn’t about politics, and this isn’t really just about Prop-8.  And I don’t have a personal investment in this: I’m not gay, I had to strain to think of one member of even my very extended family who is, I have no personal stories of close friends or colleagues fighting the prejudice that still pervades their lives.

And yet to me this vote is horrible. Horrible. Because this isn’t about yelling, and this isn’t about politics.

This is about the… human heart, and if that sounds corny, so be it.

If you voted for this Proposition or support those who did or the sentiment they expressed, I have some questions, because, truly, I do not… understand. Why does this matter to you? What is it to you? In a time of impermanence and fly-by-night relationships, these people over here want the same chance at permanence and happiness that is your option. They don’t want to deny you yours. They don’t want to take anything away from you. They want what you want — a chance to be a little less alone in the world.

Only now you are saying to them — no. You can’t have it on these terms. Maybe something similar. If they behave. If they don’t cause too much trouble.  You’ll even give them all the same legal rights — even as you’re taking away the legal right, which they already had. A world around them, still anchored in love and marriage, and you are saying, no, you can’t marry. What if somebody passed a law that said you couldn’t marry?

I keep hearing this term “re-defining” marriage.

If this country hadn’t re-defined marriage, black people still couldn’t marry white people. Sixteen states had laws on the books which made that illegal… in 1967. 1967.

The parents of the President-Elect of the United States couldn’t have married in nearly one third of the states of the country their son grew up to lead. But it’s worse than that. If this country had not “re-defined” marriage, some black people still couldn’t marry…black people. It is one of the most overlooked and cruelest parts of our sad story of slavery. Marriages were not legally recognized, if the people were slaves. Since slaves were property, they could not legally be husband and wife, or mother and child. Their marriage vows were different: not “Until Death, Do You Part,” but “Until Death or Distance, Do You Part.” Marriages among slaves were not legally recognized.

You know, just like marriages today in California are not legally recognized, if the people are… gay.

And uncountable in our history are the number of men and women, forced by society into marrying the opposite sex, in sham marriages, or marriages of convenience, or just marriages of not knowing — centuries of men and women who have lived their lives in shame and unhappiness, and who have, through a lie to themselves or others, broken countless other lives, of spouses and children… All because we said a man couldn’t marry another man, or a woman couldn’t marry another woman. The sanctity of marriage. How many marriages like that have there been and how on earth do they increase the “sanctity” of marriage rather than render the term, meaningless?

What is this, to you? Nobody is asking you to embrace their expression of love. But don’t you, as human beings, have to embrace… that love? The world is barren enough.

It is stacked against love, and against hope, and against those very few and precious emotions that enable us to go forward. Your marriage only stands a 50-50 chance of lasting, no matter how much you feel and how hard you work.

And here are people overjoyed at the prospect of just that chance, and that work, just for the hope of having that feeling.  With so much hate in the world, with so much meaningless division, and people pitted against people for no good reason, this is what your religion tells you to do? With your experience of life and this world and all its sadnesses, this is what your conscience tells you to do?

With your knowledge that life, with endless vigor, seems to tilt the playing field on which we all live, in favor of unhappiness and hate… this is what your heart tells you to do? You want to sanctify marriage? You want to honor your God and the universal love you believe he represents? Then Spread happiness — this tiny, symbolic, semantical grain of happiness — share it with all those who seek it. Quote me anything from your religious leader or book of choice telling you to stand against this. And then tell me how you can believe both that statement and another statement, another one which reads only “do unto others as you would have them do unto you.”

You are asked now, by your country, and perhaps by your creator, to stand on one side or another. You are asked now to stand, not on a question of politics, not on a question of religion, not on a question of gay or straight. You are asked now to stand, on a question of…love. All you need do is stand, and let the tiny ember of love meet its own fate. You don’t have to help it, you don’t have it applaud it, you don’t have to fight for it. Just don’t put it out. Just don’t extinguish it. Because while it may at first look like that love is between two people you don’t know and you don’t understand and maybe you don’t even want to know…It is, in fact, the ember of your love, for your fellow **person…

Just because this is the only world we have. And the other guy counts, too.

This is the second time in ten days I find myself concluding by turning to, of all things, the closing plea for mercy by Clarence Darrow in a murder trial.

But what he said, fits what is really at the heart of this:

“I was reading last night of the aspiration of the old Persian poet, Omar-Khayyam,” he told the judge.

“It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the hearts of all:

“So I be written in the Book of Love;

“I do not care about that Book above.

“Erase my name, or write it as you will,

“So I be written in the Book of Love.”

Good night, and good luck.

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The denial of a right may be politics, but the denial of a freedom is tyranny.

The right to do, or participate in, something is invariably linked to the freedom to choose whether or not to exercise that right. That is to say that when one has the right to do, they also have the freedom to choose not to do. As an example of this, I have the right to freely travel across any state border, I also have the choice not to if I do not need or want to.

In a ‘free’ society, civil/human rights are justifiably seen as important to the workings of that ‘free’ society, and that the whole community ought to enjoy the same rights equally.

The preamble to the Universal Declaration of Human Rights (UDHR) includes statements like ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world‘ and Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. In other words, the foundation of freedom, justice and peace in the world is the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family; and that these inalienable rights should be protected by the rule of law (not by government fiat).

How many of us really believe these Utopian words?

Do we believe that the rights (and the freedoms attached to that right) should be shared and enjoyed by all? including minorities? all minorities? all peoples? ALL?

Article 7 of the UDHR continues with the above theme, stating ‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.’

All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.’

Article 16 of the UDHR states that ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Two words – GAY MARRIAGE

Early this morning (Australian time) the California Supreme Court ruled that the right to marriage extends to same sex couples, and that to exclude people from that right based on sexual preference is discriminatory and therefore unconstitutional. This is a correct decision and follows in the spirit, theme, and in the journey toward human rights and human dignity for all.

The right to marry, the freedom to choose not to marry. This may be a tiny thing in the larger scheme of things in the world; it may be just one brick in the structure of human rights and dignity, but without this brick another brick will not be supported and the structure will be weakened and incomplete. Each brick is equally important, just as each person is equally important – racial equality, dignity for disabled people, women’s rights, gay rights, etc. each brick of this structure supporting and supported by each other.

The denial of a right may be politics, but the denial of a freedom is tyranny.

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As I see it, it is a rare phenomenon when a government creates its legacy early in its tenure in power, it must therefore be quite unique when a government creates its legacy to history with its first act in parliament or legislature.

The Australian Labor government has announced that it will issue an official apology to the stolen generation, on the first sitting of the new parliament, for previous wrongs done by the government to Aboriginals. Many government policies have impacted negatively on the indigenous populations, and such an acknowledgment of the dire consequences of those policies by the newly elected contemporary government will probably be seen as a great step forward in social justice and may lend this government an image of a righter of past wrongs… or will it?

The apology and acknowledgment of past wrongs imposed on Aboriginals is an act that is many many years overdue. Long did we watch the previous prime minister, John Howard, play semantic games expressing regret, doing all he could to avoid one word – Sorry. On other issues, the previous government was at once either blind to what was obvious (climate change), willfully confrontational (boat people), clearly discriminatory (gay rights), officious and callous (the Rau and Solon episodes), the list goes on.

The foreshadowed action by the new government will probably be seen as a great step forward in social justice, but it may also be seen as an act toward simply catching up to where our understanding of what kind of social justice and level of human rights ought to be accepted in Australia. Have we, after eleven years of very conservative rule, become so bankrupt in recognising and living social justice that the act of doing something so overdue as the apology to the stolen generation is seen as a wonder, and as the one social justice thing this government can live on for the rest of its tenure. In other words, if this government is true to its defense of social justice and human rights; the apology, while being a great step in social justice, it must not be its only step.

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