WASHINGTON — The New American Civil Rights Project noted today that the U.S. Commission on Civil Rights (USCCR)—after a delay of over three years—has released its report on Peaceful Coexistence. The report examines the various legal and constitutional issues that arise when anti-discrimination laws and religious liberty come into conflict.
The report can be read here.
USCCR’s majority—with two Commissioners in strong disagreement—came down firmly on the side of anti-discrimination laws rather than of religious liberty in the report’s Findings and Recommendations. The official findings state, “Civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of preeminent importance in American jurisprudence.” “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.”
Some of the individual Commissioner Statements were dramatic in tone. For example, Chairman Castro stated that, “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 or any form of intolerance.” He went on to declare that “today, as in past, religion is being used as both a weapon and a shield by those seeking to deny others equality.” Other Commissioners in the majority warned of a “backlash” against the LGBT community and “thinly-veiled attempts to turn back the clock” in the wake of Obergefell v. Hodges, in which the Supreme Court held same-sex marriage to be a right.
Commissioners Gail Heriot disagreed with the majority and said, “The Commission majority takes a complex subject and tries to make it simple—far too simple. Not many legal or constitutional issues come down to good guys vs. bad guys.” Commissioner Peter Kirsanow was also critical of the majority’s conclusions. He stated that “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.”
Parts of the report were drafted during this past spring’s media feeding frenzy over the right of bakery owners with religious objections to decline to use their skills in cake artistry in a same-sex wedding. But many other conflicts between the anti-discrimination laws and religious liberty can arise. For example, a church that operates a private school may wish to hire as teachers only individuals who share the faith; indeed, the desire to expose its members’ children to such teachers may be the reason the church established a school in the first place.
During the period the report was in preparation, the partisan and ideological composition of USCCR changed, causing its center of gravity to move to somewhat the left. This may account for some of the delay in issuing the report.
In addition to their service on USCCR, Heriot is a professor of law at the University of San Diego. Among her areas of expertise are civil rights, employment law, torts and remedies. Kirsanow is a partner at a Cleveland law firm where he serves on the firm’s Labor & Employment Practice Group and is a member of the Diversity and Inclusion Committee. Both are founders of the New American Civil Rights Project, an informal association of individuals interested in civil rights issues: www.newamericancivilrightsproject.org.