by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last month, the U.S. Commission on Civil Rights released a 300-page report entitled, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” In the words of Chairman, Martin R. Castro, the Commission “examined the balance struck by federal courts, foremost among them the U.S. Supreme Court, in adjudicating claims for religious exemptions from otherwise applicable nondiscrimination laws.”
The report has been poorly received, to say the least. Here are some typical reviews:
“The deeply troubling federal report targeting religious freedom” – Charles C. Hayes, The Washington Post
“The Government’s Civil Rights Bullies” – Richard Epstein, Hoover Institution
“U.S. Commission on Civil Rights Wants to Subjugate the First Amendment” – Stephanie Slade, Reason
“Obama Administration Says You’re a Bigot If You Live Your Religion” – Nicholas Senz, The Federalist
“The U.S. Commission on Abolishing Religious Freedom” – Marc Degirolami, The Online Library of Law & Liberty
I picked those particular examples because, in addition to being interesting accounts by well-respected legal experts, in each case the author makes his or her outrage clear in the title. I could easily have added dozens of other critical reviews with less emotive titles, including critiques by many church groups and other religious organizations.
I’d have liked to include at least one positive review as well, but I gave up trying to find one after the third page of a google search. Instead, I’m going to say something positive myself.
First, though, I want to make it clear that the body of the report—including the Executive Summary, the Discussion, and the Findings and Recommendations—is just as awful as the critics claim. Overall, it sends a very clear message to Americans who adhere to religions that impose a strict moral code in sexual matters: If you want the government to leave you in peace, you must keep quiet and do what you’re told.
The individual statements by the progressives who make up the majority of the eight-member commission are, if anything, even worse than the report itself. Here, for example, is Chairman Castro’s individual statement in full:
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.
However, the Commissioners’ Statements section contains two very good things as well, namely, the individual statements by the only members of the Commission who are not hard-core progressives: Peter Kirsanow and Gail Heriot. Both statements are well-researched, well-reasoned, and well-written, and, unlike the statements by the progressive members, both statements temper passion with tolerance and good will. In addition, both statements provide many real life examples that show how grossly unfair it is for Mr. Castro and the other progressive members to suggest that the millions of Americans who object, on religious grounds, to things like fornication, homosexuality, and same-sex marriage are merely hypocritical bigots. At 71 and 38 pages respectively, both statements are also very long, but they are nevertheless well worth reading in their entirely.
Mr. Kirasnow’s statement is actually a learned treatise on the role of religious freedom and public reason in American law and American history, and, while I’m sure he’s much valued in his role as a partner at Benesch, Friedlander, Coplan, and Aronoff, I can’t help wishing he was teaching law or sitting on a high-court bench. Here are some excerpts:
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….
[This] is a conflict between two worldviews, both held with the intensity generally associated with religious belief. The first, which is secularism, holds an individual’s unfettered sexual self-expression as a preeminent concern because it is an aspect of their self-creation…. Naturally, this worldview is at odds with many aspects of traditional morality grounded in sexual restraint….
The second worldview holds that individuals are not their own judge, but rather are subject to divine law and divine judgment. The morality of a person’s conduct does not ultimately depend upon whether he thinks it is right, or whether it accords with his desires, but whether it conforms to divine law…. Furthermore, it is a sin to assist another person in breaking the moral law, or to applaud breaking the moral law….
This is the nub of the conflict between the proponents of nondiscrimination norms and proponents of constitutionally-protected religious liberty….
The findings and recommendations in this report should serve as an alarm to liberty-loving Americans….
The approach embodied in the findings and recommendations … elevates the right to sexual liberty over the right to religious liberty. This is the precise opposite of the choice enshrined in our Constitution. That decision cannot be truly undone by civil rights statutes or even the whims of the Supreme Court but only through the amendment process. However, [the statements made by the other members] make it clear that, in their view, religion is only acceptable if it conforms to the dictates of modern liberalism.
Ms. Heriot’s statement is also excellent. Here are a few highlights:
The bigger and more complex government becomes, the more conflicts between religious conscience and the duty to comply with the law we can expect.
Back when 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….
While the targeted religious accommodations approach may sometimes be a good idea, it is not always the best strategy…. 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. People of faith should not allow themselves to become just another special interest that needs to be appeased before the next government expansion is allowed to proceed. They have an interest in ensuring the health of the many institutions of civil society that act as counterweights to the state—including not just the Church itself, but also the family, the press, small business and others. They also have an interest in ordered liberty in all its manifestations. A nation in which religious liberty is the only protected freedom is a nation that soon will be without religious liberty too….
I don’t think it helps for my colleagues to insist that this is not really an issue of religious freedom. It is always tempting to view one’s ideological adversaries as simply scoundrels or hypocrites. Those with political clout can feel good about just mowing those who disagree with them down….
Reasonable people may disagree both on how extensive anti-discrimination laws should be and how far protections of religious liberty should go…. But when opponents of these laws shriek that the other side’s true intent is only “cloaked as ‘religious freedom’” and that the other side’s real project is to “eviscerate” anti-discrimination laws, they are being unfair and unreasonable.