It was a telephone call so urgent that it echoes across borders. In early December, Honduran human rights activist Walter Trochéz was kidnapped while walking near his home in the capital, Tegucigalpa. Since the June 2009 coup in his country, Trochéz had documented a pattern of disappearances and killings of 15 lesbian, gay, bisexual, and transgender community leaders. His call to U.S. colleagues was to alert them he had nearly joined the list.
Trochéz escaped the four masked men who abducted him Dec. 4. But just nine days later he was dead. The chain of murders of LGBT activists in Honduras, for which no suspects are in custody, has rattled an already besieged community and raised alarms about police and private vigilantes exploiting the lack of oversight to operate with impunity. For human rights activists in the U.S., outrage at the atrocities should be tinged with concern for a far subtler form of impunity taking root in our own legal system.
The Supreme Court, in two recent holdings, has sided with anti-gay activists in thwarting the public's interest in viewing state records and state proceedings involving campaigns to roll back the rights of gay people. Does the high court's action mean that a climate as pervasive and vicious as the impunity now afoot in Honduras is likely to take root in the U.S.? Not at all.
But in both cases, the arguments of anti-gay activists in seeking the power to lash out at gays while expecting the state to protect and maintain their privacy represent a troubling parallel. In appearing to ratify such arguments, a majority of the court has stepped away from a standard of openness, disclosure, and accountability that has been the envy of Honduras and many other democracies.
In October, the high court intervened in a dispute from Washington state about petitions to trigger a referendum on a law passed early last year extending legal rights for same-sex couples. Washington has a far-reaching state open records law, much of which was itself passed via ballot measure. The petitions against the domestic-partner law only barely met the threshold for valid signatures.
Gay-rights activists cited the open-records law and sought to view the petitions. The federal circuit court of appeals ultimately agreed. But the Supreme Court, with Justice Stevens dissenting, blocked disclosure. Supporters of equal rights succeeded in approving the law at the ballot box. Still, the issue of the impunity from exposure of the petition-signers survives.
The court's order doesn't reveal its reasoning for maintaining the shield. Earlier this month, however, the court accepted the case for review. By early June, at least, its judgment will see the light of day.
How a majority of the court is already leaning is no mystery. On January 13, five members of the court blocked recording and playback of the trial in U.S. District Court of California's constitutional ban on equal marriage rights for same-sex couples. The move, characterized as an "extraordinary intervention" by Justice Steven Breyer and three other dissenting colleagues, went beyond simply barring a camera in the federal Prop 8 trial. The five justices granting the order gave credence to the notion that donors to antigay campaigns face undeserved reprisals from advocates of gay rights when their names are made public. The majority cited "incidents of past harassment" and extended its empathy to the expert witnesses defending Prop 8. It all but equated the risk of airing their testimony with placing the witnesses in a dunk tank and interposed itself over the drop lever. But there is an especially unsettling aspect of the anti-gay argument and the court's holding in the California case. The majority notes in justifying its decision that "witnesses have already said that they will not testify if the trial is broadcast." Never mind that many of the witnesses due to testify in defense of Prop 8 were vociferous, widely traveled, and hardly camera-shy opponents of equal rights for LGBT people during the campaign. That the court would bend to such a threat of nonparticipation suggests acquiescence, rather than resistance, to a tactic whose effect for Prop 8's sponsors is a form of impunity. That Justice Thomas, in a separate case involving corporate spending in federal campaigns, echoes the allegations of the California ant-igay activists to justify his preference for striking down all disclosure is sign that impunity and its risks still haunt our politics. Few watchdogs, press, or U.S. officials have tuned into Honduras since last summer's coup. The killings of LGBT activists, at least 19 of whom are now dead, are a symptom of the collapse of democratic governance. The state of extrajudicial impunity that has taken root, and its role in the murders of sexual minorities, is a crucial dimension of the tragedy. Yet the danger of impunity should not be lost on Americans fighting for fairness at home. The struggle for human rights by LGBT people in the U.S. has focused mainly on one bedrock premise of our democracy: equal protection under law. But the error of the Supreme Court in beginning to carve out a form of impunity for anti-gay activists is a reminder that we have a second hallowed principle to make real: that no one is above the law.
Hans Johnson is president of Progressive Victory and a columnist and commentator on politics and civil rights in the U.S. Suyapa Portillo is a visiting fellow at Pomona College who monitors conditions in her native Honduras.