On September 7, 2016, the US Commission on Civil Rights issued a report entitled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. The report has not received the attention it deserves. Should the next president appoint and the Senate approve judges and justices that agree with its findings, the report will serve as a playbook for those who believe that if there is a conflict between religious freedom and anti-discrimination laws, freedom of religion should lose.
The title of the report is ironic since its recommendations call not for balance, but for radically restricting freedom of religion. According to the majority report “U.S. Supreme Court has recently reaffirmed the foremost importance of civil liberties and civil rights, including nondiscrimination laws and policies” over religious exemptions. The authors view religious exceptions “to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity” as significantly infringing on civil rights. It should be noted that “sexual orientation and gender identity” have been added to the regular list and religion deleted.
According to the final recommendations of the Commission:
Overly-broad religious exemptions unduly burden nondiscrimination laws and policies. Federal and state courts, lawmakers, and policy-makers at every level must tailor religious exceptions to civil liberties and civil rights protections as narrowly as applicable law requires.
The final comment of Commission Chair Martin R. Castro, quoted in full below, reveals animus toward those defending freedom of religion:
The phrases “religious liberty” and “religious freedom” will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance. Religious liberty was never intended to give one religion dominion over other religions, or a veto power over the civil rights and civil liberties of others. However, today, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality. In our nation’s past religion has been used to justify slavery and later, Jim Crow laws. We now see “religious liberty” arguments sneaking their way back into our political and constitutional discourse (just like the concept of “state rights”) in an effort to undermine the rights of some Americans. This generation of Americans must stand up and speak out to ensure that religion never again be twisted to deny others the full promise of America.
The USCCR majority report also forwards the claim that the constitutional and statutory protections of freedom of religion apply only to belief and not to conduct. This eviscerates the right to free exercise, as the examples cited in the majority report clearly demonstrate.
In the case of Christian Legal Society v Martinez, the Supreme Court ruled that the University of California Hastings Law School could deny the Christian Legal Society recognition and support because it “discriminated on the basis of religion,” thereby violating the school’s anti-discrimination policy.
It is true that allowing only professed Christians to be voting members or leaders is discrimination, but it is just discrimination. To discriminate is to distinguish between things based on objective criteria. For example, UC Hastings Law School discriminates—that is distinguishes between applicants—on the basis of test scores and grade point averages. Such discrimination is considered just in a meritocracy, because applicants need to prove they are prepared to do the work law school requires. However, were the law school were to discriminate in admissions on the basis of race, color, or sex that would be unjust, because race or sex should be irrelevant. If the CLS were to discriminate of the basis of race or sex, that would be wrong. However, if the CLS’s primary purpose is to promote Christian teachings, it should be able to restrict membership and leadership to those who share its Christian faith. According to Commissioner Peter Kirsanow’s comprehensive dissent, the university’s interference violates the establishment clause of the first amendment.
Aside from the constitutional issues universities certainly have no moral right to tell religious groups what they may believe and who they may select as their leaders. Perhaps, then, they should exercise modesty and allow religious student groups to organize themselves as they wish.
Kirsanow also explains why, contrary to the claims of the majority, religious liberty should prevail over anti-discrimination concerns:
The tension between nondiscrimination principles and religious liberty is based on the assumption that the rights in conflict are of equal weight, or even that nondiscrimination is of greater weight. This assumption is erroneous. Religious liberty is an undisputed constitutional right. With the exception of racial nondiscrimination principles embedded in the Thirteenth, Fourteenth, and Fifteenth Amendments, nondiscrimination principles are statutory or judicially created constructs.
In his rebuttal to claims of other Commissioners, Kirsanow argues that:
The core of the dispute between partisans of sexual liberty and traditional religious believers is whether the two rights are of equal importance. In our constitutional order, the first reason that religious liberty takes precedence over sexual liberty is that this is enshrined in our Constitution. The First Amendment establishes the right to free exercise of religion, free speech, free association, and freedom of assembly. It does not establish the right to coerce other people into expressing approval of one’s self-expression. But why does the Constitution enshrine religious liberty as a “first freedom”? And why should we continue to treat it as a fundamental right that often trumps conflicting rights or government interests? After all, religious liberty sounds nice but nondiscrimination sounds nice too. The answer is that we accept that religious claims may actually be true, and if they are true, a person’s duty to God may be seen as weightier than his duty to the state. It is not unreasonable to believe in God, and it is impossible for the government or any person to remain truly undecided on the question. Either the government will act as though God may exist, or the government will act as though God does not exist. And for constitutional purposes it seems likely that the Framers assumed that God did exist though they differed mightily about specifics, and that is why they enshrined religion.
In a conflict between the partisans of absolute sexual liberty and freedom of believers to disapprove of certain behaviors, feelings may be hurt, but there is no right not to have your feelings hurt. Indeed the first amendment guarantees the right to say things that may hurt some people’s feelings.
Commissioner Gail Heriot expressed concern that even when litigants win First Amendment protection, dangers remain because:
[W]hen the federal government didn’t heavily subsidize both public and private higher education, when it didn’t heavily regulate employment relationships, when it didn’t have the leading role in financing and delivering healthcare, we didn’t need to worry nearly so much about the ways in which conflicts with religious conscience and the law arise… Targeted religious accommodations make it possible for ever-expanding government bureaucracies to divide and conquer. They remove the faith-based objections to their expansive ambitions, thus allowing them to ignore objections that are not based on faith. The bureaucratic juggernaut thus rolls on… A nation in which religious liberty is the only protected freedom is a nation that soon will be without religious liberty too.
In the ongoing battle over freedom of religion, Peaceful Coexistence reveals all that is at stake. The entire 300 page report is available on the net and well worth reading.