Koppelman on God and human rights

Over at Balkinization, Andy Koppelman has weighed in -- with this post, "The Partly Necessary God" -- to the Perry / Tamanaha / Vischer / Balkin / Araujo / etc. discussion on God and the morality of human rights.  (It strikes me that Andy's post works well in conversation with Michael Scaperlanda's, here.)

For starters, Andy takes it as having been "shown" that "religion isn't necessary to human rights" and also that religion is not "sufficient" for human rights (after all, "belief in God has sometimes produced massive human rights violations").  The latter point, certainly, is beyond dispute.  (It is, of course, not beyond dispute that theism has produced more or worse human rights violations than atheism.)  As for the former, I'm not sure.

I've never understood Michael's claim to be that "human rights" cannot exist, in positive law, or that they cannot be enforced through litigation or protected in law, without "religion."  As Andy puts it, referring to the "old gag about believing in adult baptism, all I can say is that 'I've seen it done.'"  One can litigate or decide well human-rights cases, and one can "believe" in human rights, and one can struggle and sacrifice for human rights, without being a theist.

But, I've understood (maybe I have him wrong) Michael's claim to be that "the morality of human rights" is one that proceeds from and -- to the extent it describes moral realities, rather than preferences or conventions -- depends on human-dignity claims that themselves depend on "religious" claims about the person.  That is, I understand Michael's point to be that, if it is not the case that, in some sense, we are created, sustained, and loved by God, then, at the end of the day, it is not the case that we have "human dignity" in the way that the "morality of human rights" assumes.  This point is not refuted, it seems to me, by the observation that some people believe in God, but disrespect human rights, or by the observation that some people disbelieve in God, and vindicate human rights.  The challenge, it seems to me, is to figure out whether what needs to be true in order for the morality of human rights to be founded in something other than preference or convention really is true. 

Now, one could concede this and still say that theism is not necessary, that -- say -- Kant will do.  (Assuming that Kantian morality does not itself depend on theism.)  And then, I guess, the question is whether we think that, all things considered, the theistic account of the foundations of the morality of human rights is, on the merits, more reasonable than the Kantian account.

At the end of the day -- and this was the point made several days ago by Rob -- the question remains whether it matters whether or not we should care whether or not the morality of human rights, as practiced and endorsed by non-theists, really requires theistic foundations.  Koppelman ends his post:

We should be grateful for allies, instead of complaining that my foundation is better than yours.

Maybe so.  Thoughts?

UPDATE:  Reader and law prof Chris Green writes: 

"The challenge, it seems to me, is to figure out whether what needs to be true in order for the morality of human rights to be founded in something other than preference or convention really is true."  Exactly right.

I've weighed in on Andy's last does-it-matter point a couple of times in the Balkinization threads here and here and here.  Here's a paraphrase of the last one: The general proposition that "believers and non-belivers should not attack the core beliefs of the other" (Tamanaha's restatement of Koppelman's admonition) seems self-referentially incoherent, at least if "attack" includes criticism, as it seems to in context.  That suggests that we shouldn't argue with each other about whether God exists. But that would only make sense if it doesn't matter much whether God exists, and lots of people have a core belief that (to put it mildly) it matters an awful lot whether God exists. So this suggestion itself seems to be attacking one of those people's core beliefs.

I also put up some thoughts on the Bainbridge blog here, defending at some length the thought that morality needs something like God that exists necessarily in order to undergird moral claims that are subject to challenge by hypothetical counterexample.