Even the Government’s Smartest Lawyers Can’t Figure Out Religious Liberty

Religious liberty is more fundamental to Constitutional principles than non-discrimination, Kirsanow argued. “Religious liberty is an undisputed constitutional right,” he wrote. “With the exception of racial nondiscrimination principles embedded in the Thirteenth, Fourteenth, and Fifteenth Amendments, nondiscrimination principles are statutory or judicially created constructs.”


It took the U.S. Commission on Civil Rights three years to produce its report on religious freedom and non-discrimination. With 27 pages, more than 1000 days of work, and 200-some additional pages of commentary, the document essentially amounts to this: Legal scholars have no idea how to resolve the government’s conflicting obligations to allow free religious exercise and protect minority groups from discrimination. Ultimately, legal language is not sufficient to resolve ultimate conflicts over belief and identity. Legislatures and litigators will have to continue muddling through, finding an imperfect balance between competing cultural norms.

This issue, perhaps more than any other, has been a significant source of recent conflict within the court system. Supreme Court decisions on birth control and gay marriage have highlighted religious dissent on issues of sexuality and gender identity, but recent conflicts have covered everything from the conscience claims of ministers to sectarian town prayer to the rights of religious student groups. Created nearly 60 years ago, the USCCR exists to advise the United States government on civil-rights issues, even though it has no power to enact or enforce any of its findings. But even with a mandate to regularly investigate controversial issues, the Commission stalled out on religious liberty.

“Because the report raises a lot of controversial positions … it took a while for the Commission, as a bipartisan body, to reach any agreement,” said Brian Walch, a spokesman. “It’s a spine-y issue.”

The report is worth reading, if only because it shows how deeply divided the legal community is about religious liberty and civil rights. A majority of Commissioners ultimately found that “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.”

This is a broad finding, more of an orientation than a guiding legal principle. But it’s easy enough to guess what the commissioners may have had in mind: tax-exempt status for religious colleges and universities that don’t admit LGBT students. Laws that let bakers and other wedding vendors refuse to provide services for same-sex-wedding ceremonies. Court decisions about religious pharmacists who decline to stock certain kinds of birth control in their stores.

Federal and state laws often protect religious groups via these kinds of selective exemptions. But some see these carve-outs as an excuse for discrimination—the Commission’s chair, Martin Castro, argued as much.

“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,” he wrote.

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