The end of religious liberty as we know it

The U.S. Commission on Civil Rights recently released its long-delayed report on religious freedom and discrimination protections, titled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.

News media largely ignored the report, but Sen. Ben Sasse, R-Neb., made issue of it in a speech last Thursday on the floor of the U.S. Senate. He said it “reveals a disturbingly low view of our First [Amendment] freedoms. It puts ‘religious liberty’ in scare quotes, and says religious liberty must now be subservient to other values.”

In 2011, President Barack Obama appointed Martin Castro as chairman of the Civil Rights Commission. The eight-member committee heard from 11 scholars and legal advocates about religion and discrimination and took three years to produce the report.

Sasse quoted Commissioner Gail Heriot, who dissented from the majority report, in noting that many religious liberty conflicts today arose from the expansion of government.

“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,” Heriot wrote.

The report called religious liberty “code” for bigotry and Christian supremacy. Castro showed his first impulse was to find people of faith undesirable. The freedom religious people have had since the founding of the country must give way to newly formed rights, he argued.

The report established a framework, like a foundation for a house. Only this house isn’t one Americans will recognize anymore. It would make religious freedom as narrow as possible, keeping it within the walls of a church. Americans would still have freedom to believe, but anything they do according to those beliefs could not interfere with LGBT people getting what they want. The report equates sexual orientation and gender identity with other legally recognized protected classes even though they are not. Protected classes include religion, race, sex, national origin, and disability.

The framework also calls for court decisions that protect sexual freedom at the expense of religious liberty, if necessary, and more federal laws to clarify that free exercise of religion is only for individuals and religious institutions, and only to the extent those don’t burden “status-based discrimination”—arguably code for LGBT special rights. The commission also recommends state-level Religious Freedom Restoration Act laws be changed to reflect those new priorities.

The report translates clearly into this: Religious freedom under progressives means the government can force a baker to bake a cake for a same-sex wedding because discrimination laws dictate it. But the baker cannot use his First Amendment right to free exercise of religion to refer the business elsewhere—a collision perfectly foreseeable and predicted by Justice Antonin Scalia.

The commission did include in the report logical, well-reasoned rebuttals, such as Heriot’s. In written testimony, Archbishop William Lori of Baltimore pointed out the charitable good works done in inner cities and forgotten peripheries.

“Rest assured, if people of faith continue to be marginalized, it is the poor and vulnerable, not the chairman and his friends, who will suffer,” Lori wrote. “We do not seek to impose our morality on anyone, but neither can we sacrifice it in our own lives and work.”

Dissenting commissioner Peter Kirsanow made this prediction: “This debate will likely dominate civil rights discourse for at least a generation. And regardless of the outcome, we may emerge a very different country than the one we have been.”

Listen to “Legal Docket” on the Sept. 19, 2016, episode of The World and Everything in It.