Commission Appears Poised to Reshape American Foreign Policy, Recommend Stripping Protections for Women, LGBTQ+ Communities Abroad Under Guise of Religious Freedom
In Response to Litigation, Trump Admin Releases Limited Commission Meeting Records; Continues to Shield Commission from Public View
Washington, D.C. — A coalition of human rights organizations advanced their suit against Secretary of State Mike Pompeo for unlawfully creating and operating the State Department’s Commission on Unalienable Rights in violation of the Federal Advisory Committee Act (FACA). The Commission is expected to send its recommendations to Secretary Pompeo by July 4, 2020. The new filing comes on the heels of President Trump’s Executive Order on Advancing International Religious Freedom.
Four groups represented by Democracy Forward — Robert F. Kennedy Human Rights, the Center for Health and Gender Equity (CHANGE), the Council for Global Equality, and the Global Justice Center — sued the Trump administration for stacking the Commission with members who have staked out positions that run counter to fundamental human rights principles and threaten LGBTQ+ and reproductive rights. Excluded from the Commission are the perspectives of mainstream human rights groups, as well as career diplomats within the State Department. The Commission has also operated without the transparency required by federal law.
The Commission, which was announced at a press event last July, is a project of particular and special interest to Secretary Pompeo. Its membership — comprised largely of religious liberty scholars — suggests that its true purpose is to provide the Secretary with a roadmap for prioritizing religious freedom rights over all others, a move that could lead to restrictions on reproductive freedom and the discrimination of LGBTQ+ individuals.
As the groups have argued, the Commission’s goals are “harmful to the global effort to protect the rights of all people.” In this latest filing, they further assert that: “The Commission has been unlawful since its inception. At every step of the way, the State Department has failed to operate the Commission in accordance with FACA’s requirements.”
“Accordingly,” the groups argue, “the State Department should be barred from relying on any recommendations the Commission has produced in secret.”
Secretary Pompeo’s Commission violates FACA’s requirements that outside groups that advise federal agencies on policy are in the public’s interest, have balanced membership, and make their records available to the public. Specifically:
- Secretary Pompeo failed to articulate why the Commission is necessary and not duplicative of other government resources, like the State Department’s Bureau of Democracy, Human Rights, and Labor, which has the authority to advise the secretary on human rights policy.
- The Secretary excluded the voices of mainstream human rights groups and career diplomats in favor of eleven academics with records of opposing LGBTQ+ and reproductive rights. Commission members have, for instance, argued that marriage equality is “nonsensical,” that homosexuality is “one of the signs of the End Times,” and that women should not have access to contraceptives to prevent transferring the Zika virus to newborns.
- The Commission has also shielded its records from public view, making it more difficult to track its activities and know what the Commission will recommend when it sends its report to Secretary Pompeo next month.
State Department records produced in response to this litigation further substantiate how State has violated the law, including by shielding the commission from public oversight. The State Department, for instance, withheld witness remarks and video recordings of the public meetings, providing them only after this lawsuit was filed. This belated disclosure does not resolve the violation as the public lacked the benefit of the Commission’s records while it was continuing to meet publicly.
More than 20 U.S. Senators and 50 members of Congress objected to the Commission’s formation and mission. They questioned why the Commission is necessary given the Department’s internal human rights experts. Members of the Senate reiterated these concerns on May 20 and, with the anticipated July release of the Commission’s report, encouraged Secretary Pompeo to ensure the Commission’s work reaffirms the U.S.’ commitment to human rights.
The Trump administration has a long record of illegally outsourcing policymaking to outside groups in violation of federal law.
The motion for summary judgment was filed on June 2, 2020, in the U.S. District Court for the Southern District of New York. Read the Plaintiffs’ full brief here.