Civil Rights Commission: ‘Religious Liberty,’ ‘Religious Freedom’ Code Words for Intolerance, Homophobia, and ‘Christian Supremacy’

Penny Starr | September 9, 2016 | 11:05am EDT
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(AP Photo)

( – A new report by the United States Commission on Civil Rights supports the majority on the federal commission, who say that efforts to protect religious liberty and freedom are really a way for individuals and entities to discriminate against people who don’t share their beliefs.

“The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance,” Martin Castro, chairman of the commission, said in a statement included in the 296-page report.

“Religious liberty was never intended to give one religion dominion over other religions, or a veto power over the civil rights and civil liberties of others,” Castro said. “However, today, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality.

“In our nation’s past religion has been used to justify slavery and later, Jim Crow laws,” Castro said. “We now see ‘religious liberty’ arguments sneaking their way back into our political and constitutional discourse (just like the concept of ‘state rights’) in an effort to undermine the rights of some Americans.

“This generation of Americans must stand up and speak out to ensure that religion never again be twisted to deny others the full promise of America,” Castro said.

Two commissioners, however, objected to the report’s conclusions, including Gail Heriot, who is also a professor of law at the University of San Diego.

"The Commission majority takes a complex subject and tries to make it simple—far too simple,” Heriot said. “Not many legal or constitutional issues come down to good guys vs. bad guys." 

Commissioner Peter Kirsanow also criticized the six-member majority's conclusions. 

“Religious liberty and anti-discrimination laws come into conflict in many different ways and there is no fair way to say that one set of concerns is 'preeminent' and the other set is not,” Kirsanow said. 

The report, entitled “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” includes an executive summary, discussion about legal decisions and their impact, as well as findings and recommendations.

The executive summary said, in part, “The appropriate balance between religious liberty and nondiscrimination principles in some conflicts arises as a concern when religious institutions and organizations claim the freedom under constitutional and statutory law to choose leaders, members or employees according to the tenets of their faith, even if the choice would violate employment, disability, or other laws. It arises also when individuals claim the freedom to adhere to religious principles regardless of otherwise applicable law governing their conduct.”

The findings included:

• “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 these civil rights.”

• The Commission endorses the briefing panelists’ statements as summarized on page 20 of the report in support of these Findings.

(1) schools must be allowed to insist on inclusive values;

(2) throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly;

(3) without exemptions, groups would not use the pretext of religious doctrines to discriminate;

(4) a doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply;

(5) third parties, such as employees, should not be forced to live under the religious doctrines of their employers [unless the employer is allowed to impose such constraints by virtue of the ministerial exception];

(6) a basic [civil] right as important as the freedom to marry should not be subject to religious beliefs; and

(7) even a widely accepted doctrine such as the ministerial exemption should be subject to review as to whether church employees have religious duties.

“Further, specifically with regard to number (2) above, religious doctrines that were widely accepted at one time came to be deemed highly discriminatory, such as slavery, homosexuality bans, and unequal treatment of women, and that what is considered within the purview of religious autonomy at one time would likely change,” the report stated.

The recommendations include:

• Federal legislation should be considered to clarify that RFRA creates First Amendment Free Exercise Clause rights only for individuals and religious institutions and only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination.

• States with RFRA-style laws should amend those statutes to clarify that RFRA creates First Amendment Free Exercise Clause rights only for individuals and religious institutions. States with laws modeled after RFRA must guarantee that those statutes do not unduly burden civil liberties and civil rights with status-based discrimination.

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