Rules Are for Schmucks: Civil Rights Snafu – Part 1

The US government has two agencies whose primary purpose is to protect the civil rights of all Americans: the United States Commission on Civil Rights and the Equal Employment Opportunity Commission.

It would be nice if they could get their act together and start pulling in the same direction.

This week, the good news! After three years of hard work, the Commission on Civil Rights finally published a twenty-seven page report discussing the growing conflict between religious liberty and the protection of civil rights. The chief battleground of this conflict today involves the civil rights of LGBTQ people, but it has not always been thus. Years ago, the conflict primarily involved race, and some crystal balls predict that in the future it may involve Islamophobia.

Though the victims may change, the script outline is always the same. The Constitution and fundamental human decency demand “equal protection” for all. As Humanist Manifesto III puts it, “We work to uphold the equal enjoyment of human rights and civil liberties in an open, secular society.” Then along comes the God industry whining, “Not for us! God wants us to discriminate against [insert marginalized group], and we demand the religious liberty to do so!”

Most of the report is devoted to a careful tracing of the legal history of religious privilege cases, especially in the Supreme Court. As early as 1878, the report notes, the court refused to recognize religious privilege when it upheld federal laws banning Mormon polygamy. The principle that laws with a legitimate purpose not intended to punish a particular religion must be enforced, regardless of whether someone insists that God disagrees, was stated most clearly in 1990 in the case of Employment Division v. Smith, when the argument that using illegal drugs “because it’s my religion” was shot down.

The report then describes the political backlash that ensued from the God lobby, which resulted in the passage of the federal “Religious Freedom Restoration Act” (RFRA) in 1993, and then the passages of local RFRAs in about half the states. RFRA reverses the constitutional principle of the Smith case, invalidating every law that “substantially burdens” the exercise of religion unless the government can prove it is unable to bend over backwards to accommodate that practice. From a historical perspective, it’s interesting that RFRA is now being used to undermine both anti-polygamy laws and drug laws.

The Commission on Civil Rights recommended that both federal and state RFRAs be gutted “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.” Some of us think that outright repeal of RFRA, to put us back in the neutral world of the Smith case, would be far simpler and better—but such a recommendation arguably falls outside the purview of the Commission. Still, the fact that the Commission is willing to tinker with the “religious liberty” third rail at all is highly gratifying.

In fact, the chairman of the Commission on Civil Rights, Martin Castro, is my new hero. Not just because of the substance of his personal addendum to the report, but because of his succinctness—to the point that I can quote his entire statement right here:

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. Religious liberty was never intended to give one religion dominion over other religions, or a veto power over the civil rights and civil liberties of others. However, today, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality. In our nation’s past religion has been used to justify slavery and later, Jim Crow laws. We now see “religious liberty” arguments sneaking their way back into our political and constitutional discourse (just like the concept of “state rights”) in an effort to undermine the rights of some Americans. This generation of Americans must stand up and speak out to ensure that religion never again be twisted to deny others the full promise of America.

That’s it—the whole thing. Naturally, Castro is now being intensely vilified by the entire God industry for his bluntness. Rabbis Abraham Cooper and Yitzchok Adlerstein had the junior high level wit to compare him to Fidel Castro in a piece with the hysterical title, “Team Obama Launches a Shocking Broadside against Religious Faith.” Catholic Archbishop William Lori calls him “reckless,” “ignorant,” and “shocking.” A God lobbyist at the Heritage Foundation sniped, “I would expect to see such a slanted and anti-religious report come out of China or France perhaps, but am disappointed to see it come from the US Commission on Civil Rights.” At the Federalist, we’re calmly informed that the “Obama Administration Says You’re A Bigot If You Live Your Religion.” Even the Washington Post devoted editorial space to handwringing about “the deeply troubling federal report targeting religious freedom.”

Politicians of both parties found the report to be a convenient punching bag. It’s not too surprising that Orrin Hatch, an original cosponsor of RFRA, harrumphs,“A majority of the commission appears to believe that, in all but the narrowest of circumstances, the civil right to freedom from discrimination trumps the constitutional right to freely exercise religion.” But even Democrat Steny Hoyer, the minority whip of the House, toadies before the God lobby: “Although [the words ‘religious liberty’ have] been misused by people using that phrase, that does not mean that the phrase itself, nor the ideal, nor the reality, nor the constitutional protection should be, in any way denigrated because some people misuse it.” What both politicians conveniently ignore, though, is that it’s not the Constitution the report criticizes in any way but the RFRA overlay that goes so far beyond what the Constitution says. If we could get rid of RFRA and just get back to the Constitution, all would be well.

Hats off to Castro for taking a stand he had to know would generate this much heat. Now if he could spend some time talking to the other branch of the federal civil rights establishment about the evils of religious privilege, maybe we could achieve some progress. More on that next week.