Stanley Carlson-Thies, September 22, 2016

On September 7 the US Commission on Civil Rights released a report and recommendations on how to deal with conflicts between nondiscrimination laws and religious freedom claims. Unfortunately, the Commission majority presents deeply flawed conclusions that undermine the foundational value of the First Amendment. The majority claims that civil rights protections (they leave out of this the protection of religious exercise) should be “preeminent” over religious freedom. Indeed, chairman Martin Castro asserts that “religious liberty” and “religious freedom” are “code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy [and other forms] of intolerance.” Rather than encouraging and guiding lawmakers and the public to work together amidst deep difference to devise fair ways for citizens and organizations to live together with respect and in peace, the Commission majority advocates dramatically shrinking First Amendment protections for religious exercise in order to marginalize unpopular religious views.

The report is the much delayed outcome of a briefing sponsored by the Commission on March 22, 2013. The briefing heard testimony from many top experts, including Kimberlee Colby (Christian Legal Society), John Inazu (author of Confident Pluralism), Lori Windham (Becket Fund for Religious Liberty), Edward Whelan (Ethics and Public Policy Center), Marci Hamilton (noted critic of the Religious Freedom Restoration Act), Daniel Mach (ACLU), and Ayesha Khan (Americans United for Separation of Church and State). The US Commission on Civil Rights is a bipartisan, independent, federal agency that investigates national civil rights issues and issues recommendations. Its recommendations are not binding, but can help to shape public opinion and lawmaking.

The report’s title, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” is deeply misleading, as Charles Haynes of the Religious Freedom Center of the Newseum Institute points out: “the wording suggests that religious freedom is a ‘civil liberty,’ when in truth it is a fundamental, inalienable right protected by the First Amendment.” And the report “is less about reconciling differences and more about asserting the primacy of nondiscrimination over religious freedom.” The report’s emphasis, given by the majority, is not coexistence but the marginalization of unpopular religious views and organizations.

The report considers sharply differing views concerning high profile issues such as whether religious student clubs at public universities may require that leaders be faithful in belief and conduct, the HHS contraceptives mandate and the Hobby Lobby decision, the ministerial exception that protects the selection of “ministerial” leadership of religious institutions, and generally the meaning of the First Amendment’s religion clauses and whether the Religious Freedom Restoration Act should be narrowed.

Three deeply worrisome views of the Commission majority:

• The supposition in the “Findings” that nondiscrimination rules are of “preeminent importance” and so should take precedence over the broad protection of religious exercise, ignoring the design and emphatic language of the Constitution.

• The view—dangerous when set forth by commissioners acting in their official capacity—that suppression of unpopular religious views about sexuality and marriage is not only acceptable but positive because “throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly.”

• The suggestion that religious freedom protections should be re-conceptualized as protecting only beliefs and not conduct because this dramatically narrowed religious freedom “is fairer and easier to apply.”

In an insightful commentary on the report, Emma Green of The Atlantic notes how difficult the conflicts and issues examined in the report are “because the law is but clunky machinery for reconciling opposing world views.” And yet it may be just that effort of reconciliation that must be reconsidered. American people and organizations do differ very deeply on LGBT conduct and identities, what marriage really is, and on reproductive issues. Agreeing to disagree—principled or civic pluralism—is the framework that is needed: extending legal protections to all sides so that people can live side-by-side without loss of rights and livelihood as they use persuasion and example instead of the coercion of the law to win adherents.

Very unfortunately, as Charles Haynes notes, the approach adopted by the Commission majority not only does not help in the search for such actual peaceful coexistence but rather discourages and delegitimizes such a search with its supposition that there are not multiple rights that must all be honored and protected.

The original briefing in 2013 heard from proponents of strong religious freedom protections as well as those championing nondiscrimination law with minimal accommodations. The report that was finally issued records all of the testimony, reviews the conflicting views, and reports not only the perspectives and recommendations of the majority but also the very strong and articulate dissents of the two commissioners in the minority. In this way, at least, the US Commission on Civil Rights shows vital respect for the First Amendment. Going forward, we can only hope that the Commission amends its majority stance to allow the same diversity of perspectives present amongst the Commission itself also to “peacefully coexist” in the larger landscape of American life, for both individuals and institutions.