Nearly 225 years after the ratification of the First Amendment to the U.S. Constitution, the cause of conscience protected by the principles of “no establishment” and “free exercise” may be losing support in the minds and hearts of the American people.
Appeals by religious individuals and groups for exemption from government laws and regulations that substantially burden religious practice are increasingly unpopular and controversial. So much so that many in the media have taken to using scare quotes, transforming religious freedom into “religious freedom.”
Now the U.S. Commission on Civil Rights appears to be recommending that we make it official: Our first freedom is first no more.
According to a commission report released Sept. 7, “civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of preeminent importance in American jurisprudence.”
If we accept this assertion, it means that conflicts between religious freedom and nondiscrimination principles are resolved by denying accommodation for religious conscience — except perhaps in very rare and narrow circumstances.
According to the findings of the commission:
“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 those civil rights.”
The findings and recommendations of the U.S. Commission on Civil Rights — an independent, bipartisan, fact-finding federal agency — carry weight with government officials responsible for national civil rights policy and enforcement.
Robust protection for civil rights is, of course, essential in a democratic society. But so is protection for liberty of conscience. Despite dark chapters of religious discrimination, the United States has a long and honorable history of taking claims of conscience seriously. From conscientious objection to war to religious accommodations in the workplace, the American experiment in religious freedom seeks (on our best days) to ensure that people are free to follow the dictates of conscience in matters of faith.
Yes, accommodations for religious practice often affect the lives of other people. But the aim must be to balance competing claims and interests, minimizing harm while protecting conscience.
Consider, for example, the bitter conflict over allowing county clerks to opt out of performing same-sex marriages. Last year, Utah passed legislation designed to prohibit discrimination against LGBTQ people while simultaneously protecting religious freedom.
A key provision of the Utah law ensures that county clerk offices perform marriages and that a clerk be readily available to marry same-sex couples. A clerk may opt out of performing a same-sex marriage if, and only if, another clerk is available to issue the license and perform the ceremony. Under this balanced approach, same-sex couples are provided the service (without knowing who, if anyone, has opted out in the clerk’s office) and religious conscientious objectors are accommodated.
Unfortunately, the commission’s report does nothing to encourage — and, I would argue, actually discourages — efforts like the one in Utah to find a balance between nondiscrimination and religious freedom.
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SOURCE: The Washington Post