Thursday, September 8, 2016

The chairman of the U.S. Commission on Civil Rights said that “religious freedom” and “religious liberty” have become merely “code words” for intolerance, “Christian supremacy” and committing every form of identity-politics sin, and thus they must yield before anti-discrimination laws.

The remarks, released Thursday in a report on “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” is the latest example of an increasingly hostile reception in liberal circles to one of the six specified rights at the core of the First Amendment — the “free exercise” of religion.

“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,” said Martin R. Castro, a Chicago Democrat named USCCR chairman by President Obama in 2011.

“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,” he said in the 307-page document.

At the heart of the “Peaceful Coexistence” report is a USCCR assertion that granting religious exemptions to nondiscrimination laws “significantly infringe” on the civil rights of those claiming civil rights protections on the basis of “race, color, national origin, sex, disability status, sexual orientation, and gender identity.”

Among the document’s recommendations is the assertion that the 1993 federal Religious Freedom Restoration Act, or 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.”

It’s the area of sexual orientation and gender identity where the greatest conflicts lie, and the report offered little support to those who see their work or artistic expressions — creative photography, cake decorating or flower arranging, for example — as also expressions of their religious belief about marriage being the union of one man and one woman.

Individuals in each of these fields have come under fire from state and local civil rights agencies, with cases going against professionals in New Mexico and Washington state.

USCCR member Gail Heriot, a former George Mason Law School associate dean who now teaches at the University of San Diego, dissented from the majority opinion of the commission, including Mr. Castro’s statement.

“I’m troubled by the growing attitude that somehow anti-discrimination laws trump everything. We live in a more complex world than that,” she said in a telephone interview.

Others offered a harsher judgment.

“This commission is not only out of touch with reality, but also out of touch with our Constitution,” said Mat Staver, chairman of public interest law group Liberty Counsel, based in Orlando, Florida, before going on to call the report “an anti-American, anti-Constitutional, misinformed position.”

The emphasis on civil rights over free exercise, civil liberties experts say, could also spill over into other areas, such as religious schools and colleges seeking to hire teachers that affirm the sponsor’s doctrinal positions.

According to religious liberty expert Douglas Laycock, a University of Virginia Law School professor, the USCCR offered “no coherent reason” why the federal or state versions of RFRA don’t protect faith-based organizations or businesses, “except to say that civil rights are of ‘preeminent importance.’”

“This report gives no reason for preferring the rights of the same-sex couple, except that a majority of the [commission] chose up sides,” said Mr. Laycock, who was lead counsel for the plaintiffs in one of the key rulings in the field of religious freedom, the Hosanna Tabor case.

In that case the Supreme Court ruled in 2012 that a church school could designate teachers of nonreligious subjects as “ministers” and hold such employees to specific doctrinal standards.

Mr. Castro declined a request to elaborate.

Asked whether the commission chairman had a responsibility to answer public questions about the “Christian supremacy” broadside, USCCR spokesman Brian Walch told The Washington Times, “The statement is for the record. We have no further comment other than the fact that his statement is his statement and it’s been released publicly.”

“There is no fair way to say that the concerns of the LGBT community are ‘preeminent’ over those of religious believers,” said Robin Fretwell Wilson, a University of Illinois law school professor who has written extensively on the subject.

However, Ms. Wilson adds, “Religious liberty will become code for discrimination and intolerance if opponents of nondiscrimination laws continue to claim the right, in the name of religious freedom, to block LGBT persons from enjoying protections that the rest of us take for granted. … We need thoughtful legislators to craft new thoughtful approaches to keeping the religious bakers in the business without saying gays can be turned away.”

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