Written by Don Byrd
Via Religion Clause, the bi-partisan U.S. Commission on Civil Rights has issued a controversial report on the relationship between religious liberty and nondiscrimination. The culmination of 3 years of work, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” includes analyses of federal court rulings, testimony from scholars, public comment, and statements from commissioners. A majority of commissioners offered findings and conclusions.
So, why the controversy? In some sense, a topic like this can’t avoid controversy. The intersection between nondiscrimination and religious liberty concerns has become a hot-button cultural issue in recent years. Efforts by state legislatures to address the issue have often seemed to create more problems than it solves. And court rulings necessarily address individual disputes, often without providing much guidance on general balancing principles, leaving pundits and advocates plenty of fighting room, and material.
The Atlantic’s Emma Green sums up her impressions of the report this way:
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.
In other words, we are not going to legislate or litigate our way out of the fundamental, driving conflicts at the heart of these issues. Easy answers or caricature generalizations of the strongly held beliefs at stake here are not likely to move the ball forward – either from opinion writers, judges, legislators, or commissioners.
All that being said, the majority here did offer some recommendations on how religious exemptions can be best maintained while still protecting the rights of others. Here they are below, in full, from pages 26-27 of the 300-page report:
1. Overly-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.
2. 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.
3. In the absence of controlling authority to the contrary such as a state-level, RFRA-type statute, the recognition of religious exemptions to nondiscrimination laws and policies should be made pursuant to the holdings of Employment Division v. Smith, which protect religious beliefs rather than conduct.
4. 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.
5. 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.
The Commission press release announcing the report is here.