The United States Civil Rights Commission has proclaimed that religion is an impediment to civil rights and has prepared a constitutional briefing designed to defeat religion’s “discriminatory” and “intolerant” status in society…

religiouslibertyIn its recent report, deceptively entitled “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” the United States Civil Rights Commission proposes that the country take the next step beyond the Obama Administration’s antagonism to religious liberty. The Commission concludes that religion must defer to the continuing expansion of governmentally-conceived and governmentally-enforced “rights.”

The United States Civil Rights Commission, created in 1957, has eight commissioners serving six-year terms, which can be renewed. Four are appointed by the President and four by the Congress. According to its enabling statute, not more than four members can be of the same political party at any one time. Faced with the reality that there were already two Democrats on the Commission, President Barack Obama  appointed two Democrats and two liberal “Independents” when he took office. So, the liberal/Democrat block is six commissioners of the total of eight.

The vote for the Peaceful Coexistence Report was five or six in favor (the vice-chair, Obama appointee Patricia Timmons-Goodson, made no statement unlike all the other commissioners) and two—Peter N. Kirsanow, the only Republican member, and Gail Heriot, an Independent—opposed.

Under its enabling statute, the Civil Rights Commission has considerable legal authority, and it has used that authority to have a substantial impact on the national civil rights agenda. For more than fifty years, the Commission has been cited by the Supreme Court in its decisions. With its subpoena power, the Commission can get access to records and documents anywhere in the country, and it can compel the attendance of witnesses. The Commission has regional offices and state advisory committees in every state. It is the inspiration for state civil right and “human rights” commissions, at least one of which has the mission not only to “prevent” but also to “eliminate” discrimination.”

The Obama administration’s attempt to curtail religious liberty has been stopped by the Supreme Court three times in the last four years. Both the Hosanna Tabor (2012) and Hobby Lobby (2014) decisions were unprecedented for the reason that the federal government had never litigated against religious persons and organizations under the pretexts the administration argued in those cases. Hosanna Tabor stands for the stupendously important principle, unanimously recognized by the Supreme Court but not by the Obama administration, that religious institutions may select their own teachers and ministers. And against the increasingly prevalent view of progressive society that religion is okay so long as it is restricted to Sunday morning services while progressives are otherwise at brunch, Hobby Lobby means that religious people may live their religion all the time. Lastly, in remanding the case for further consideration, the Court did not give in to the Obama Administration in the Little Sisters of the Poor case of 2016.

But the Civil Rights Commission goes several steps further in its “Peaceful Coexistence” report. It emphatically repudiates the Supreme Court’s decision in Hobby Lobby and begrudgingly accepts with major reservations the decision in Hosanna Tabor. The Report was prepared before the Little Sisters case, but the issues in that case are effectively rejected as well. Beyond mere laws and the Constitution, civil rights “policies,” and “nondiscrimination principles,” are “preeminent,” the Commission asserts. What it disparagingly calls “religious exemptions” based on the “tenets of faith” have the effect of “significantly infring[ing] upon these civil rights.” Thus, the constitutional situation is reversed. The superior and free-standing principle of “nondiscrimination” is placed above the explicitly stated constitutional rights to religious liberty in the First Amendment.

While downplaying the three more recent victories for religious freedom in Hosanna Tabor, Hobby Lobby, and Little Sisters, the Report places great overall emphasis on the single Supreme Court case of Christian Legal Society v. Martinez (2010), in which the Court, by the narrowest vote of 5-4 vote, upheld the discrimination by the University of California Hastings Law School against the Christian Legal Society for its refusal to comply with the school’s policy of nondiscrimination against gays. In that complicated case, the Court decided that the Christian Legal Society had to comply with a general policy requiring full participation by homosexuals in all law school activities. The Commission mentions but downplays two previous cases, Rosenberger (1995) and Good News Club (2001), in which the Court disallowed religious discrimination against Christian organizations at the University of Virginia and a public school district in New York, respectively. In those cases, the Court found that the religious groups were singled out because of their Christian views.

The Report addresses itself to seven specific areas and goals (p. 26). First, in the area of education, the Commission says that “schools must be allowed to insist on inclusive values.” But the Commission has its own list of inclusive school values, among which are “sexual orientation and gender identity,” but its inclusive list does not include “religious exemptions” from those values. So, this goal of the Commission really says nothing about inclusiveness except when considered in the context of the Commission’s overall theme of the “pre-eminence” of the general “principle” of non-discrimination. And it not so clear that the facts of the Commission’s bedrock case, Christian Legal Society, support this goal of the Commission. In that narrowly-decided case, the law school portrayed itself as “inclusive” and having no intent to single out religion, but as Justice  Samuel Alito said in his dissent, the law school, “has more than 60 registered groups and, in all its history, has denied registration to exactly one, the Christian Legal Society.”

Second and third together, the Civil Rights Commission effectively says that governments and new innovations in law and public policy should force religions to change their doctrines, or at least make them invisible. “Throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changed accordingly,” the Commission claims. The Commission is apparently unaware that abolition of slavery in this country, for example, was very much a product of Christianity. And that some individual Christian churches supported slavery–a long time ago–does not mean that it was a Christian doctrine. According to the Commission, with that past support of slavery by some Christian churches a permanent badge of dishonor, governments should now go forth to change churches’ practices concerning “homosexuality bans and unequal treatment of women.”

And concerning the obvious reference to how the law and institutions should regard the ordination of women, the denial of which is shared by the Catholic and Orthodox churches and by Orthodox Jews, the Commission seems to intend to undermine the conclusion of the unanimous Supreme Court in the Hosanna case, in which the Court said that, “We cannot accept the remarkable view [i.e., of the Obama administration] that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” So, long-standing doctrines and practices are just “pretexts,” according to the Commission, used by those religions “to discriminate.” Two-thousand-year-old beliefs survive today only as public justifications and excuses for certain religious groups to do what they really want to do, that is, invidiously discriminate against certain people. Does the Civil Rights Commission even understand religion?

Fourth, the Commission concludes that religious beliefs but not belief-based conduct should be protected. Rather than “religious exemptions,” the Commission concludes, a distinction “between beliefs (which should be protected) and conduct (which should conform to law) is fairer and easier to apply.” This conclusion is based on the Supreme Court’s decision in the Smith case (1990), along with Christian Legal Society, the Commission’s most-emphasized case. In Smith, in an opinion authored by the late Justice Antonin Scalia, the Court decided that it was permissible for Oregon to apply the criminal law against marijuana possession against the religious practices of an Indian tribe. (Talk about a case whose factual basis—prosecution for marijuana possession–is out of date!). The Commission strongly opposes the numerous laws enacted at the federal level and in several states to undo or limit Smith and protect the free exercise of religion.

The supposed bright-line distinction between “belief” and “conduct”–it’s “easy” according to the Commission—is probably the premier religious freedom issue in the country today and cannot be dealt with in any detail here. Suffice it to say the Commission only glancingly mentions and more than impliedly opposes the Supreme Court decisions in Lukumi Babalu (1993), concerning animal sacrifice of the Santeria religion in which the Court upheld conduct based on belief, Wisconsin v. Yoder (1972), in which the Amish were upheld in their opposition to mandatory school attendance, and Sherbert v. Verner (1963), in which the Court supported opposition to working on the Sabbath as an exception to employment law. And the Commission makes clear its opposition to the Hobby Lobby (2014) decision (2014) and does not refer at all to the Court’s remand seeking compromise in the Little Sisters case (2016).

Fifth and sixth together, in concluding that “third parties such as employees, should not be forced to live under religious doctrines of their employers,” the Commission directly rejects the Supreme Court’s Hobby Lobby decision (2014) and then uses that rejection to imply very strongly that the Supreme Court’s Obergefell (2015) decision that negated the marriage laws of forty-one states serves as a rationale for requiring religious institutions to accept same-sex marriage. Further, as the Commission states, “a basic right as important as the freedom to marry should not be subject to religious beliefs.” But, after Obergefell, no one is subjecting the newly-promulgated freedom to marry to religious beliefs. It is only when that freedom is forced on others, and their organizations and institutions, who do not agree with same-sex marriage that the conflict arises.

On Hobby Lobby, the Report endorses what it regards as the superior view that religion-inspired employers should not be allowed exemptions from new governmentally-imposed policies. And Obergefell, the Commission goes on to say, provides “a rationale for future tests of limits to religious exemptions.” So, without being explicit, the Commission is preparing the ground for the coercion of religious bodies that refuse to employ those involved in homosexual marriages. And this may also eventually involve the tax exemption status of religious institutions, for the Report approvingly cites the Bob Jones case (1983) in which the Supreme Court upheld the removal of the tax exemption status of Bob Jones University for its policy of prohibiting interracial dating.

In this section, the Report does its own subtle take on Justice Anthony Kennedy’s majority opinion in Obergefell in which he said that religious persons “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” (Indeed, this grant of free-speech permission by the Supreme Court to religious persons has never been sufficiently noticed or commented on.). But the permission “to advocate,” and also “to teach,” which Justice Kennedy added, is only that. The Obergefell decision contains no statement concerning the freedom of religious institutions to act against and be free from governmental interference about homosexuality in their own affairs. And the Commission’s Report makes this point by closing its consideration of Obergefell by saying that “[no] union is more profound than marriage.” Thus, the Commission more than implies that the public law of marriage is more important than conduct and practices based the moral doctrines of certain religious groups.

Seventh, the Commission accepts Hosanna and the “ministerial exemption,” but only very begrudgingly and with the purpose of limiting its effect, for churches should have to prove and courts should “review” “whether church employees have religious duties.” There is no doubt, as the Commission states, that Hosanna “will likely provide a rationale for future tests of limits to religious exemptions under [religious freedom statutes] and the Constitution,” and the Commission, without being forthright, basically answers the question: Churches are subject to Obergefell.

The Report has been something of a tour de force and headline-maker for Martin R. Castro, the Commission’s chairman, a Chicago resident who is not a lawyer. In his transmittal letter to Congress, Mr. Castro went even beyond the language of the Report and said that religious rights “significantly infringe” upon a host of rights, including sexual orientation and gender identity. And in his individual statement in the Report, Castro, launched into a wholesale blast against religion. He stated that religious liberty and freedom are “hypocrisy,” that is, “codewords” for “discrimination” and “intolerance,” and that religion should not be used “to deny other the full promise of America.” Today, he said, religion is being used to “deny others equality.”

So, the United States Civil Rights Commission, a governmental agency of great visibility and influence, has proclaimed that religion is an impediment to civil rights and has prepared a constitutional briefing designed to defeat religion’s “discriminatory” and “intolerant” status in society. There shall be only the most restricted “exemptions.” Many people predicted that the coming of “gay rights” as a new and separately recognized classification of civil rights would lead to conflict with religious liberty.

And so it has.

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