Fundamental rights - or fundamental confusion?

During the
past year I have learned a lot about human rights. It began with my election to
the Advisory Panel of the European Union’s Fundamental Rights Agency’s
Fundamental Rights Platform. On that body I represent the  Observatory on
Intolerance and Discrimination against Christians in Europe.

However, my
election was heavily criticized by left-wing NGOs represented on the panel
because of an article published by,
another NGO in which I am a volunteer. The article in question set out ten
reasons against gay adoption. An FRA staff member informed me: “I spent three
months clarifying that your opposition to adoption of children by gay couples
is not a violation of fundamental rights.”

months! That is a long time. But, thankfully, his conclusion supported my
position. Otherwise I would have been excluded from the platform and its advisory
panel. How odd that my views on this subject caused so much bother even though
almost every European country’s legislation is on my side. That includes the
laws of Austria, FRA’s host country.

In December
last year the Observatory published its Five-Year Report on
Intolerance against Christians in Europe
. A few weeks ago, on April 14th, I
presented the report at the FRA’s conference on civil society, Fundamental
Rights Platform.

I was aware
that my audience would not be favourable, as combating homophobia is always a
main issue at these meetings. But I believe in seizing occasions: I asked the
numerous gay rights activist groups present to be more respectful when dealing
with Christians. A “kiss-in” at Notre Dame Cathedral is disrespectful, I said.
Anti-Christian images at gay parades -- including live imitations of the
crucifixion -- are hurtful to Christians. The arrest of a street preacher for
quoting the Bible on homosexuality violates freedom and is totalitarian.

presentation was not about homosexuality, which has never interested me much. It
was not about “hating homosexuals”, which no reasonable person would do.
(Strange, how one always has to underline that. If I disapproved of the Swiss
referendum’s results on the construction of Muslim minarets, would I have to
affirm in the same breath that I do not “hate” all Swiss nationals?) No, my
concern was about a group of people badly misbehaving and disturbing a fruitful
public debate by their radical actions.

But, here
is a replay of what happened:

“Let us
agree,” I say in my workshop, “that no one should go to prison for respectfully
stating an opinion which does not advocate violence.”

“No!” angry
voices shout back at me. “People should go to prison for what they say if it is
a negative comment against a vulnerable minority group, especially when they
are in a position of power!” Heavy nodding of FRA staff accompanies this

People in
the audience get agitated. An FRA staff member, a nice Italian, tries to calm
everyone down by asking me: “Gudrun, tell us, if there is a Catholic maths
teacher who says in class that gay people are stupid and cannot calculate -- is
this a violation of fundamental rights?”

It is hard
to think clearly when one is confronted all alone by a crowd of angry
campaigners. To answer “no” would feel strange -- after all, that teacher is
being very silly. To answer “yes” does not feel right... Which right is
actually being violated?

The answer
is, of course, “no”. The maths teacher does not violate rights. He violates the
code of conduct of teachers and he ought to be disciplined accordingly. Human
rights legal obligations bind states, not individuals. Only if the state
prescribed to all maths teachers to teach that gay people were “too stupid to
do maths”, one could probably speak of a human rights violation. Most of all,
however, it would be a violation of the pupils’ right to education.

Does this
need to be explained to staff members of Fundamental Rights Agency? It should

Is there a
right not to be insulted? A freedom from hearing? A non-offence clause included
somewhere in the principle of non-discrimination?

No, and the
reason lies precisely in the word “principle”. Non-discrimination does not stand
alone as a substantive norm but is always to be applied together with a
fundamental right. It is a formal principle giving a key to the interpretation
of rights and freedoms and their application. The principle of
non-discrimination tells us that fundamental rights and freedoms apply equally
to all people, regardless of the circumstances. Non-discrimination is not a
right on its own.

Imagine for
a moment if human rights bound individuals, and non-discrimination were a
stand-alone substantive norm: every differentiation between persons would be
suspect. Every “yes”, every “no” would be subject to legal investigation,
refined by the possibility of lodging anonymous complaints to some “equality
body”, shifting the burden of proof to the alleged culprit, and entailing
“severe fines” including “victim compensation”.

Back to the

Next, I
mention the case of a Berlin pharmacist who refuses to sell the morning after pill.
Radical feminists smashed his windows and wrecked the pharmacy. “Rightly so,”
says another participant of FRA’s Fundamental Rights Platform. “He violated the
right of access to medical care!” Heavy nodding from the audience.

I am not
sure whether to be surprised, shocked or scared. This is self-administered
justice. It violates the freedom of conscience of a pharmacist who took up his
business long before such pills were available. It also presupposes, wrongly,
that the morning after pill is “medical care” although it has not been defined
in this way by the courts. And it does away with proportionality, by assuming
that that pill would not be reasonably accessible otherwise, which is not the
case in downtown Berlin.

How much
fundamental rights confusion can a fundamental rights conference take? I am not
an expert on “LGBT issues”, nor did I ever want to discuss them publicly. But the
aggressive acts and speech of some of their representatives forces me into

I love human rights, and I am glad that they hold such a prominent
place in today's society. But they are vulnerable to fundamentalism and
ideologies. As long as fundamental rights are used for some radical
groups' agenda, they will never be fully respected.

Gudrun Kugler is a lawyer in Vienna, Austria, and founder of the Observatory on Intolerance
and Discrimination against Christians
. She is an advisor for the
Fundamental Rights Platform of European Union’s Fundamental
Rights Agency


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