Cultural and political trends make the position of traditional believers increasingly precarious, and these trends inevitably manifest themselves in our law.
The embarrassing U.S. Commission on Civil Rights richly deserves the new name bestowed on it by the above headline. Its recent report to President Obama, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” contains nothing that is remotely likely to promote either peace or coexistence. To the contrary.
A brief post cannot do full justice to the fatuousness of the commission’s recommendations, which may be savored in full at pages 25 through 28. But I’ll note some lowlights.
The recommendations begin with the ominous observation that civil rights protections ensuring nondiscrimination “are of preeminent importance in American jurisprudence.” Preeminent over what, exactly? That quickly becomes crystal clear: over religious freedom. Supreme Court decisions that the commissioners celebrate for reflecting this preeminence include Christian Legal Society v. Martinez (2011), EEOC v. Abercrombie and Fitch (2015), and Obergefell v. Hodges (2015). It is telling that the commission includes Abercrombie and Fitch—an utterly unremarkable case involving the interpretation of the standard for an employer’s state of mind in a disparate treatment action under Title VII—because it thereby squeezes and deforms religious freedom into the only framework it can accept or understand: nondiscrimination.
After this, we are treated to the following hodgepodge of inanity: “Schools must be allowed to insist on inclusive values.” Apparently this is meant as a defense of Martinez; but it ought to read, “schools must be allowed to insist that everybody espouse the values we have canonized.”
The commissioners go on to say that “throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly.”Really? Is this statement made in promotion of “peaceful coexistence” and “reconciliation”? It sounds more like a crude bit of pseudo-history capped by a fairly direct threat.
This succinct maxim follows: “A doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply.”
Well, such a legal doctrine would be easier to apply for those who are keen to subordinate religious exercise (“preeminence,” remember)—though I’m confident the commission would prefer to stamp out impure thoughts, too, if only it could.
The problem is that even the now-truncated Free Exercise Clause of the First Amendment speaks in terms of “religious exercise,” and a policy that protected only religious belief and not religious exercise would represent a radical curtailment of religious freedom.
One more: “RFRA protects only religious practitioners’ First Amendment free exercise rights, and it does not limit others’ freedom from government-imposed religious limitations under the Establishment Clause.”
Actually, the Religious Freedom Restoration Act of 1993 does not protect anybody’s First Amendment rights, whether of free exercise or otherwise. RFRA creates an independent statutory right for the protection of religious free exercise that is not dependent on the efficacy of a claimant’s First Amendment free exercise rights. The Supreme Court has never held that third parties may intervene to vindicate their ostensible Establishment Clause interests in a RFRA claim. That would be silly, since those third party interests are accounted for within RFRA’s own standard.
But the crown jewel in this disaster is Commission Chairman Martin Castro’s one-paragraph statement at page 29. It has to be read to be appreciated, and so let me only discuss the chairman’s choice of epigraph. The words are attributed to John Adams, but they are actually a provision in the Treaty of Tripoli passed in large part in order to negotiate with Muslim national powers in Africa for protection against pirates.
They are: “The government of the United States is not, in any sense, founded on the Christian religion.”
There are at least two problems in beginning this way. The first is that it shows Mr. Castro to be ignorant of Adams’s actual views when it came to, for example, Christian establishments of religion in the early republic. Of all the platitudes he could have chosen, he landed on a spectacularly inapt one.
The second, and larger, difficulty is that it suggests that for all the commission’s talk of nondiscrimination, it harbors hostility to one religion specifically: Christianity. The commission should be upfront about it, and simply state that its real object is to repudiate the country’s Christian heritage and to target Christianity for special legal disability. It would have saved all of us a lot of time and frustration.
Indeed, it is especially irritating for me to write this post because I wasted my time traveling to Washington, D.C., three years ago to testify before the U.S. Commission on Civil Rights. My testimony is at page 213 of the report and following, and I’m grateful at least to see the statements of Commissioners Peter Kirsanow and Gail Heriot. But I repent of my decision to testify. I’ll think twice and three times before ever doing it again.