The deeply troubling federal report targeting religious freedom
October 3, 2016
By Charles C. Haynes
Inside the First Amendment
Nearly 225 years after the ratification of the First Amendment to the U.S. Constitution, the cause of conscience protected by the principles of "no establishment" and "free exercise" may be losing support in the minds and hearts of the American people.
Appeals by religious individuals and groups for exemption from government laws and regulations that substantially burden religious practice are increasingly unpopular and controversial. So much so that many in the media have taken to using scare quotes, transforming religious freedom into "religious freedom."
Now the U.S. Commission on Civil Rights appears to be recommending that we make it official: Our first freedom is first no more.
According to a commission report released on Sept. 7, "civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of preeminent importance in American jurisprudence."
If we accept this assertion, it means that conflicts between religious freedom and nondiscrimination principles are resolved by denying accommodation for religious conscience — except perhaps in very rare and narrow circumstances.
According to the findings of the commission:
"Religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon those civil rights."
The findings and recommendations of the U.S. Commission on Civil Rights — an independent, bipartisan, fact-finding federal agency — carry weight with government officials responsible for national civil rights policy and enforcement.
Robust protection for civil rights is, of course, essential in a democratic society. But so is protection for liberty of conscience. Despite dark chapters of religious discrimination, the United States has a long and honorable history of taking claims of conscience seriously. From conscientious objection to war to religious accommodations in the workplace, the American experiment in religious freedom seeks (on our best days) to ensure that people are free to follow the dictates of conscience in matters of faith.
Yes, accommodations for religious practice often affect the lives of other people. But the aim must be to balance competing claims and interests, minimizing harm while protecting conscience.
Consider, for example, the bitter conflict over allowing county clerks to opt out of performing same-sex marriages. Last year, Utah passed legislation designed to prohibit discrimination against LGBTQ people while simultaneously protecting religious freedom.
A key provision of the Utah law ensures that county clerk offices perform marriages and that a clerk be readily available to marry same-sex couples. A clerk may opt out of performing a same-sex marriage if, and only if, another clerk is available to issue the license and perform the ceremony. Under this balanced approach, same-sex couples are provided the service (without knowing who, if anyone, has opted out in the clerk's office) and religious conscientious objectors are accommodated.
Unfortunately, the commission's report does nothing to encourage — and, I would argue, actually discourages — efforts like the one in Utah to find a balance between nondiscrimination and religious freedom.
The title of the commission's report alone speaks volumes: "Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties." First, 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 second, the commission's report is less about reconciling differences and more about asserting the primacy of nondiscrimination over religious freedom.
Peaceful coexistence is not difficult to achieve if one side declares victory and demands that the other side concede defeat before the argument even begins. In real life, of course, peace between those who worry that religious claims are code for bigotry and those who seek religious accommodations will not be possible without setting aside name-calling, committing to civil dialogue and working for common-ground solutions.
The commission's report arrives at a time when popular support for religious accommodations — particularly for minority faiths — has been eroding for decades as our increasingly secular society relegates religion to the purely private sphere. In recent years, culture wars over abortion and gay marriage have accelerated the public distaste for religious conscientious objectors, often poisoning the well for religious freedom claims in the public square.
Without getting into finger pointing, there is enough blame to go around. Some religious freedom advocates have pushed for accommodation while simultaneously opposing even the most basic nondiscrimination protections for LGBTQ people. And some LGBTQ advocates have mistakenly labeled all efforts to seek religious exemptions as a form of bigotry.
It's time for all sides to reaffirm equality and liberty as twin pillars of the American Republic. Authentic peaceful coexistence requires moving from the zero-sum game described in much of the commission's report to the level playing field required by our constitutional commitment to both nondiscrimination and religious freedom.
This column first appeared in the "Acts of Faith" section of The Washington Post online.