By Michael D. Peabody, September 15, 2016:    In a stunning report released last week by the United States Commission on Civil Rights, Martin Castro, the chairman, attacked the Religious Freedom Restoration Act at both the state and federal level, challenged the term “religious liberty” as code for intolerance. He said that free exercise rights should yield to other civil rights if they come into conflict.

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.” Castro went on to write that religious exemptions to civil rights laws “significantly infringe upon these civil rights” and that religious freedom should not be used as a “veto power” over other rights if the rights come into conflict. The report specifically mentioned wedding related creative services such as photography, cake decorating, or flower arranging as well as expression of religious beliefs about marriage.

The report challenged the U.S. Supreme Court’s decision in Hobby Lobby which relied on Citizens United to give free exercise rights to corporations, calling for the Religious Freedom Restoration Act to be limited to “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.” The document also called for states to modify their RFRAs to exclude protection for businesses. Any exceptions to other civil rights laws sought by individuals on the grounds of free exercise of religion or individual religious liberty should be interpreted “as narrowly as applicable law requires.”

Several commissioners dissented from the majority opinion, including University of San Diego law professor Gail Heriot and attorney Peter Kirsasanow. They stated that “religious liberty and anti-discrimination laws come into conflict in many ways, and there is no fair way to say that one set of concerns is ‘preeminent’ and the other set is not.”

The 296-page document also includes summaries of presentations made during a March 22, 2013, briefing where scholars and attorneys addressed the “scope of constitutional and statutory guarantees of free exercise of religion.” The stated goal of the event was to find an appropriate balance between religious liberty and nondiscrimination principles.

To its credit, the report describes the dramatic difference between how legal scholars view conflicts between religious and other civil rights some of whom believe that religious practices should yield to conflicting rights and others who believe religious rights should be considered as having priority. The “Pro-Religious Exemption” view argues for broad religious exemptions, or as the report states, “Their reasons for requiring state actors to carve out exceptions for religiously motivated discrimination from generally applicable laws are that such laws, despite being generally applicable, (1) interfere with the constitutionally important right to associate with others holding similar religious views, (2) discriminate against the viewpoints of religious persons using the pretext of nondiscrimination policy, (3) block disfavored groups from school benefits accorded all other groups, (4) deny freedom to choose leaders who can be effective in the organization, (5) fail to weigh the benefits and harms of denial, so that even a virtually nonexistent harm outweighs religious freedom, (6) force participation in actions identified as sinful, (7) deny the right to live according to deeply held beliefs, and (8) deny the right to dissent from majoritarian politics.”

Those who argue “Against Religious Exemption” believe that: “(1) schools must be allowed to insist on inclusive values, (2) throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly, (3) without exemptions, groups would not use the pretext of religious doctrines to discriminate, (4) a doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply, (5) third parties, such as employees, should not be forced to live under the religious doctrines of their employers, (6) a basic right as important as the freedom to marry should not be subject to religious beliefs, and (7) even a widely accepted doctrine such as the ministerial exemption should be subject to review as to whether church employees have religious duties.”

The Commission, created by Congress as part of the Civil Rights Act of 1957, is described as “an independent, bipartisan, fact-finding federal agency.” Although Congress and the courts are not bound by these findings, they may choose to review and incorporate its analysis in future legislation and court decisions.

In a 1943 decision involving the rights of Jehovah’s Witness children not to salute the flag in violation of their religious beliefs, Justice Robert H. Jackson observed that, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (West Virginia Board of Education v. Barnett).

By providing a reasonable balancing test, the federal Religious Freedom Restoration Act, signed into law by President Clinton in 1993, provides adequate safeguards for the protections of all civil rights. The recommendations of the Civil Rights Commission take this one step further and tend to create a situation, in line with Employment Division v. Smith (1990) in which any conflict between free exercise of religion and generally applicable law would routinely resolve with the law dominating sincerely held religious beliefs that could otherwise be accommodated. If followed, the recommendations would lead to a situation in which free exercise of religion could only be guaranteed if it is, in the words of a law professor friend, confined to the contours of the skull.

It is fair to expect that the administration elected in November and the next Supreme Court justice who replaces the late Antonin Scalia will play a crucial role in determining whether the free exercise of religion survives as  a primary right or is permanently assigned a second-tier status in which sincerely religious beliefs must be surrendered if they come into conflict with other civil rights. Of course, Congress could also play a role.

Michael D. Peabody is an attorney in Los Angeles and an active member of the Seventh-day Adventist Church. He is the publisher of a regular news letter on religious liberty issues available by contacting via Email. The photo with this article is of the U.S. Civil Rights Commission in session, although it does not show the entire group.