Meet the unelected bodies chipping away at religious freedom

The nation’s civil rights laws, dating back as far as 1866, codified Micah’s admonition to act justly by protecting maligned and marginalized minority groups. But unelected officials seeking to mete out civil justice on their own terms have hijacked the administrative system designed to ferret out civil rights abuses and hold offenders to account. And Christians, most frequently, are the ones in the dock.

In the wake of the 1957 Civil Rights Act, state legislatures created and tasked agencies, often called civil rights commissions, with policing the administration of nondiscrimination laws that protect Americans based on race, color, religion, or national origin. But leading up to and in the aftermath of the Obergefell v. Hodges Supreme Court ruling legalizing same-sex marriage, states hastily began amending their nondiscrimination laws to include sexual orientation and gender identity (SOGI), leaving the commissions to work out the enforcement details.

Unconstrained by constitutional jurisprudence, the ideologically driven commissions and their administrative courts have used their authority to advance LGBT rights advocacy by creating SOGI regulations where none existed, ignoring religious exemptions, and using their authority to destroy the livelihood of those who don’t toe the line.

“So-called civil rights commissions are an increasing threat to the basic civil rights they claim to protect,” said Christiana Holcomb, an attorney with Alliance Defending Freedom, a nonprofit organization that offers legal defense for Christians charged with discrimination because of their religious beliefs. “These commissions use their broad authority to interpret state laws in a way that violates basic First Amendment freedoms of speech and religion.”

Civil rights commissions served a practical purpose when first created, said Sally Wagenmaker, a partner with Wagenmaker and Oberly, a Chicago law firm specializing in providing legal counsel for nonprofit organizations. As states began enacting their own versions of the 1957 Civil Rights Act, lawmakers created the commissions or repurposed existing civil rights agencies.

The unelected agencies—often made up of members appointed by governors or state legislatures—mimic the role of the U.S. Civil Rights Commission, with two powerful exceptions: The state commissions can interpret state nondiscrimination laws and their administrative judges can pronounce judgment on violators.

Lawmakers have given the commissions the role of judge and jury.

The commissions’ administrative courts bear the brunt of civil rights violation complaints that would have overwhelmed state civil courts. Cases that are appealed eventually make their way to civil courts but only after exhausting all administrative appeals—a protracted and cost-prohibitive task for a small business owner accused of violating SOGI law.

That, Wagenmaker said, gives the commissions a lot of power.

“Now what we’ve seen is a huge breach of their oath, an authority grab,” said Chelsey Youman, chief of staff and counsel at First Liberty Institute, a legal organization specializing in religious liberty cases. “We’ve seen it amplified in the last two years.”

Holcomb, Youman, and Wagenmaker point to the Iowa Civil Rights Commission (ICRC) as exhibit No. 1 in their indictment of the commissions and their attack on those who won’t affirm the LGBT civil rights agenda.

Wagenmaker said the Iowa commission took advantage of a poorly written SOGI non-discrimination law and applied it in a way no other state civil rights commission had done to date: The ICRC, not the law itself, held churches accountable to SOGI laws.

In a brochure, the commission stated unless a church function served as a “bona fide” religious activity, it would not be afforded the religious exemption crafted into other nondiscrimination laws. The commission edited the brochure, but the problematic law remains unchanged.

Youman said the case of Oregon bakery owners Melissa and Aaron Klein—sued for declining to bake a cake for a same-sex wedding—highlighted how the administrative courts wield an unaccountable authority where political ideology, not justice, hold sway.

According to records obtained through an open records request by The Daily Signal, representatives of the Oregon Bureau of Labor and Industries, including the administrative judge assigned to hear the Klein’s case, communicated frequently with the state’s largest LGBT advocacy group. The bureau is tasked with administering the state’s SOGI law.

The administrative judge, Brad Avakian, later fined the couple $135,000 for violating Oregon’s SOGI law.

The Kleins’ case has finally moved to the Oregon Court of Appeals. But the damage has been done. The couple lost their business and the commission seized funds for the fine from their bank account, even though their fight against the ruling continues.

Barring legislation from Congress or a U.S. Supreme Court ruling, federal agencies cannot create their own SOGI laws. But they can—and have—redefined words in existing laws. The civil rights divisions of the U.S. departments of Education and Justice reinterpreted decades-old laws prohibiting discrimination based on “sex” to include sexual orientation and gender identity.

Judges have cited the new interpretations in their rulings granting transgender persons access to the restroom that corresponds with their gender identity. Youman said only litigation can undo what judges, following the lead of activist commissions, have done.

Youman called the unaccountable commissions “the fourth headless branch of the government.”

And Wagenmaker warned their power likely will continue unchecked.

“Given our country’s current climate of lauding SOGI protections as a highly valued civil rights matter, do not expect religious liberty interests—even though they may be constitutional proportions and long respected—to carry the day in a legal challenge involving SOGI laws,” she said.