Are Civil Rights and Religious Liberty Mutually Exclusive?
The question posed in the title might seem merely rhetorical: but its not. All sides, not to mention the media, often frame contemporary controversies over calls for religious exemption from various laws in ways that cast these two foundational ideas of our society as starkly at odds.
While recognizing the current tensions, the United States Commission on Civil Rights does not think civil rights and religious liberty are mutually exclusive. But their new report on the subject seeks ways forward to allow for them to "peacefully coexist." The majority report sensibly recommends limiting the exemptions sought by the Christian Right from contemporary laws and regulations. They also recognize that when exemptions are are sought, any that are granted should be both clearly necessary and narrowly tailored to the matter at hand. In order to limit the current expansionism, the Commission' recommends, for example, that Congress and state legislatures amend state and federal Religious Freedom Restoration Acts (RFRA) to ensure that they do not undermine civil liberties and civil rights protections.
The Commission's report Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties (PDF) is an important resource for anyone seeking to understand and to keep up with the state of these issues as they relate to everything from labor laws to marriage equality. It is only 27 pages long, but it is supported by more than 300 pages of related documentation. And its free.
According to the Commission's press release
The report also sets out findings and recommendations for policy-makers in considering the effect of recent Supreme Court opinions. One important Commission finding is that the "U.S. Supreme Court has recently reaffirmed the foremost importance of civil liberties and civil rights, including nondiscrimination laws and policies," and that "[r]eligious 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."
Regarding the Religious Freedom Restoration Act (RFRA), the Commission found that in Burwell v. Hobby Lobby Stores, Inc. the Supreme Court affirmed the narrowness of the analytical framework within which claims of government interference with the free exercise of religion must be construed under the Act. The Court also affirmed that meticulous factual inspection is necessary in the process of adducing - or rejecting - exceptions to civil liberties and civil rights protections.
A principal recommendation of the Commission is that "[o]verly-broad religious exemptions unduly burden nondiscrimination laws and policies. Federal and state courts, lawmakers, and policy-makers at every level must tailor religious exceptions to civil liberties and civil rights protections as narrowly as applicable law requires."
All this occurs in the face of a long term quest by the Christian Right and the Catholic bishops to vastly expand both individual and institutional exemptions from the law.
Chairman Martin R. Castro stated:
"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 also denounced the use of religious liberty as a "code word" for "Christian supremacy."
The Chairman's statement goes beyond the Commission's drier legal analysis and recommendations. But his concern about the implications of the religious liberty strategy of dominionists and the Catholic bishops is spot on. I sought to address these aspects in a report earlier this year titled: When Exemption is the Rule: The Religious Liberty Strategy of the Christian Right and a long form article in The Public Eye magazine, Dominionism Rising: A Theocratic Movement Hiding in Plain Sight. In the latter I wrote:
The emergence of religious liberty as one of the central issues of our time stems from multiple sources. But the issue is far from being just a disagreement about how to balance the religious freedom of some with civil and constitutional rights of others. In fact, religious freedom has long been seen by dominionist strategists as a weakness of constitutional democracy that they can exploit to advance their agendas.
The U.S. approach to religious freedom was largely an outgrowth of the thinking of Thomas Jefferson, whose Virginia Statute of Religious Freedom was drafted in 1777, and finally passed under the legislative leadership of James Madison in 1787. The bill, which helped inform the Constitution's and later the First Amendment's approach to religion, provided that one's religious identity "shall in no wise diminish, enlarge, or affect their civil capacities." Dominionist leaders generally recognize that Jeffersonian notions of religious freedom and the society they envision are almost entirely mutually exclusive ideas. So they have chosen to be smart about it.
"We must use the doctrine of religious liberty," Christian Reconstructionist theorist Gary North declared in 1982, "to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God."
Not all of those who seek religious exemptions from various laws are so deeply cynical as the visionary strategist Gary North. However, it is also fair to say that there are many who are, wittingly or unwittingly, part of the execution of the theocratic vision of Gary North and his colleagues. The recommendations of the Civil Rights Commission, if implemented, would provide a significant check on their advances.