Religious Freedom and the Modern Antidiscrimination Regime – Part 1

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Is it possible to have both religious freedom as historically practiced in the United States and the antidiscrimination law and policy which has developed in the last sixty years? The United States Commission on Civil Rights considered this question at hearing on March 22, receiving testimony from groups and individuals involved in the ongoing legal and social conflict over the issue.

It was noted at the beginning of the hearing that the Commission had received more comments on this issue than anything else it has considered in many years, perhaps more than any other issue at all. Two high profile Supreme Court decisions were taken to address the religious freedom/antidiscrimination issue. The Hosanna Tabor decision of January 2012, which declared that the so-called “ministerial exception” is a constitutional right (it holds that religious bodies have complete freedom from all antidiscrimination law and policy in hiring and firing clergy and religious instructors) directly concerned primary religious bodies (such as churches and synagogues), while the Martinez case of June 2010, in which the court said that Hastings Law School could deny recognition to the Christian Legal Society because it requires Christian belief of its leaders, highlighted the ongoing issue of the restriction or effective prohibition of religious student groups at secular universities and colleges.

Two panels offered testimony to the Commission, the first consisting of representatives of legal service organizations involved with religious freedom, the second consisting of prominent legal commentators on the issue. In the first panel, Kim Colby of the Christian Legal Society said that it is “basic religious liberty that religious groups can select their own leaders.” To deny this in the name of prohibiting discrimination really destroys the group’s identity, denying both freedom of religion and freedom of association. She observed that originally secular administrators at public universities held that university recognition of religious groups amounted to state endorsement of religion, a view rejected by the Supreme Court. Administrators then turned to antidiscrimination law and policy to exclude religious groups. By denying recognition to groups deemed to be “discriminatory,” colleges effectively prohibit them from existing on campus, since they are denied not only funding, but perhaps more crucially, the ability to reserve rooms for meetings and communicate via campus media (such as bulletin boards). She observed that the Christian Legal Society no longer exists on the Hastings campus, and that fourteen Catholic and Evangelical groups have recently been effectively excluded from Vanderbilt University (although single sex fraternities and sororities are permitted).

Ayesha Khan of Americans United for the Separation of Church and State and Daniel Mach of the American Civil Liberties Union denied that refusal of university recognition practically bars disfavored groups, insisting that no constitutional right is violated as long as state educational institutions do not completely prohibit disfavored groups. Mach insisted that the law should only protect student groups’ viewpoints, not their activities. This would seem to give them little freedom. Khan insisted that state universities are right in “barring exclusionary practices” by student groups related to “races, genders, and religions” in order to “teach students critical interpersonal and leadership skills … helpful in a student’s career.” While she claimed that any small, disfavored group overwhelmed by new members hostile to its viewpoint could appeal for help in its own particular case, Colby pointed out that such a group would not do so after it had been subverted. The real claim was thus that the contemporary doctrine of “diversity and inclusion” means student groups cannot be organized on religious grounds.

Khan more generally attacked liberty of conscience in the public square, suggesting that it is a problem for a modern and enlightened society. “Social and legal norms are subject to considerable evolution,” she said, which can only reasonably mean that everyone should be bound by new norms deemed to be “progressive.” “Religious groups and individuals have sought to evade antidiscrimination provisions” of the law, she said, and these should take precedence over the right of believers to order their lives in accordance with religious tenets. She referred to a number of high profile cases, such as a photographer refusing to photograph a lesbian ceremony and pharmacists refusing to provide “equal access to medications” because they consider them to facilitate immoral behavior. Effectively this means liberty of conscience cannot exist if other people are offended.

In contrast, Lori Windham of the Becket Fund for Religious Liberty asked whether “civil liberties and antidiscrimination norms” can be reconciled, and she answered “yes – in most cases, greater religious freedom and greater freedom of speech further the same interests as our antidiscrimination laws. They allow small and politically weak groups to maintain their mission and voices.” Referring to the Hosanna Tabor decision, she said that “if separation of church and state mean anything, it means that the government should not be selecting ministers.” Although “some will doubtless reject to notion that religious organizations should have any unique protection … for religious believers in many different faiths, the idea that they would not have such rights is unthinkable.” This is not only because “religious freedom is singled out for special protection in our constitution,” but because “for many, religion is a fundamental organizing principle of life … to say that religious exercise has no unique freedom, that religious bodies have no special rights of their own, plunges our government into the business of regulating religious organizations.” Rejecting the idea that liberty of conscience is unprincipled or a practical problem, she said that “the idea of conscientious objection from general laws is not a new invention, but has a long distinguished history.” Its contemporary manifestation is the Religious Freedom Restoration Act of 1993 (RFRA), applicable at the federal level, with about half of the states also having their own RFRAs.

Presentations were followed by questioning of the panel by the commissioners. Chairman Martin R. Castro referred to a proposed law in Kansas intended to protect merchants who conscientiously object to homosexual behavior from being legally required to facilitate it as “targeting the LGBT community” with discrimination, but Colby indicated that the proposed law was modeled on the federal RFRA, which requires a compelling state interest applied in the least restrictive manner (a condition which might be met by the availability of alternative access to goods and services). Khan and Mach on the other hand thought that harm to others should be considered when dealing with liberty of conscience, with no “one size fits all” standard, an approach that would seem to leave the issue largely with judges in individual cases, and could reasonably make injured feelings an objection to liberty of conscience. Commissioner Gail Hariot suggested that much of the problem with university sponsorship of student groups could be overcome simply by eliminating the idea that the academic administration should sponsor student groups. Commissioner Peter Kersanow claimed that whatever discrimination is practiced by small groups is far less of a danger than coercive policies of the state, which are much harder for individuals to avoid.

While participants stated well crafted positions, there was no consensus in the hearing or nor any in our society about its central question, is religious freedom and liberty of conscience to be allowed if it contradicts liberal ideas of an “inclusive” society? For some of the participants and part of society, the answer is clearly “no,” a view which will embark the government on ever expanding regulation of public and private life to root out ideas deemed to be “oppressive.”

A discussion of comments by participants in a second panel of legal scholars will follow in another posting.