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U.S. Commission on Civil Rights Wants to Subjugate the First Amendment

Free exercise rights exist "only to the extent that they do not unduly burden" bans on discrimination, the report says.

Three crosses on a hill.Waiting For The Word / FlickrPreventing people from being discriminated against by private organizations is so exceptionally vital that the First Amendment needs to be subjugated to that aim, the U.S. Commission on Civil Rights declared last week.

That's a paraphrase on my part. So that you don't think I'm making it up, I'll now quote directly from the report, which describes "civil rights protections ensuring nondiscrimination" as being "of preeminent importance." (The definition of preeminent is, of course, "above or before others" and "superior.")

"Although the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) limit the ability of government actors to impede individuals from practicing their religious beliefs," the report goes on, "religious exemptions from nondiscrimination laws and policies must be weighed carefully and defined narrowly on a fact-specific basis."

Weighed carefully? That's an interesting choice of words. So how is a policy maker to know if the need for the religious exemption outweighs the need to protect people from, say, having a photographer refuse to work their wedding?

According to the report, the answer is: It almost never does.

The commission showed its hand by writing that the federal RFRA (which Bill Clinton signed to ensure Americans wouldn't be forced to violate their religious beliefs absent a compelling government interest and no less burdensome alternative) needs to be altered so that everyone understands that it "creates First Amendment Free Exercise Clause rights...only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination." Likewise for the several-dozen state-based RFRAs that have been enacted over the years.

In other words, your right to not be subjected to laws that violate your beliefs should be treated as categorically less important than my right not to have anyone discriminate against me.

There would be little to take issue with here if the discrimination in question were the work of the government, a la state-mandated segregation under Jim Crow. (When Kim Davis tried to use the power of her office to deny marriage licenses to gay couples, to cite a more recent example, she was ordered to desist—and rightly so.) Unfortunately, the report isn't about public discrimination. It's about private discrimination, such as when a Catholic school wants to hire only people who adhere to the Church's teachings.

It's a fact that different people hold different beliefs about morality. Some feel that offering a health insurance plan that covers contraceptives would make them complicit in a behavior they view as sinful. Others say the same about participating in same-sex weddings, or employing individuals who openly flout the strictures of their faith, or stocking abortifacient drugs in their privately owned pharmacies.

The point isn't that these are good or bad beliefs to hold. The point is that a subset of people understands these actions to be wrong, and yet government entities (at the federal level in the first example, and at the state level in the latter three) have opted to require everyone to engage in them anyway—people's faith be damned.

And these are precisely the types of requirements that the Commission on Civil Rights wants enforced at all costs, and only the narrowest possible exceptions to them entertained.

That's a perfect inversion of how it ought to be. It's probably true that, as the report points out, religious exemptions to such laws "significantly infringe upon" the particular class of "civil rights" that statutorily enjoin private discrimination "based upon classifications" like religion and sexual orientation. But it's just as true that the laws themselves "significantly infringe upon" religion and "the free exercise thereof."

The whole conversation is a red herring. Religious exemptions might violate the laws—but the laws violate the Constitution. And that's the thing about the First Amendment: It comes first.

Photo Credit: Waiting For The Word / Flickr

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  • Hamster of Doom||

    (When Kim Davis tried to use the power of her office to deny marriage licenses to gay couples, to cite a more recent example, she was ordered to desist—and rightly so.


    Eddie-bait.

  • UnCivilServant||

    Is he even around this morning?

  • Hamster of Doom||

    I don't think he's generally around this early.

  • Pneumonial||

    Like you have to bait him.

    If the article was about Russian bondage porn, he would still have at least 20 comments in this thread about how equality for queers before the law is anti-libertarian.

  • Pat (PM)||

    Equal subjugation of conscience and suspension of freedom of association is not only awesome, it's libertarian af.

    Like the new handle btw. You should sign up for about 30 new accounts. Nobody can tell at all.

  • Rich||

    The notion that "We support the 1A, but" is "unduly burdening".

  • Hamster of Doom||

    You can have rights if we find a convenient place to fit them into our utopian ideal.

  • WTF||

    Your rights cease to exist whenever the government claims a compelling interest. It's right there in the constitution. Somewhere. It must be, otherwise they couldn't do these things, right?

  • Radioactive||

    commerce clause...the gift that keeps on giving whether it applies or not

  • retiredfire||

    It is the hundred-years-after-writing interpretation of the 14th amendment.
    Once they realized they could base a law's constitutionality on if it treated people "equally", then it opened up such considerations as non-"discrimination" being paramount.
    Prior, laws had to be based on their infringement on liberty and if that infringement was for a compelling public interest. Now, that has been turned on its head and the inequality countered is the compelling public interest that must be justified. Almost anything can be ruled as unequal, since, in human interactions, virtually nothing is.

  • Zeb||

    Your rights cease to exist whenever the government claims a compelling interest.

    I actually pretty much agree with that. Where I part ways with most people who would say that is in what is considered a compelling government interest. The only such interests are protecting people from violence, theft or fraud. And there can be no religious exemptions to laws against murder or burglary.

    There shouldn't need to be any religious exemptions to any laws because the only laws there ought to be are the sort that don't admit exceptions. If a law violates religious freedom, the law should be struck down, not have special exceptions carved out.

  • WTF||

    Funny, I don't see the part after "congress shall make no law" that says "except in the case of bans on discrimination". I must need to order some of those magic government goggles.

  • Rich||

    OANN was getting *this* close to using that argument against "mental health" exceptions to the 2A.

  • Curt||

    We must clearly understand that silly things like constitutionally guaranteed rights will always be considered as subordinate to the feelz of sensitive people. The protection of people's feelings is something that was clearly so vital and foremost that it required no explanation in the Constitution.

  • Bodica Slayer of Woodchip||

    It's in government's interest to cure you of your religious bigotry, silly.

  • Yawn||

    So now anti-gay christians have the same problem as...everyone else, who was never allowed to discriminate against them. Can we at least stop pretending these laws are any different from literally any other law? It's against my religion to pay taxes, and yet.

  • Possible Bot||

    Laws are supposed to be blind to religion, not create special categories of people. One they got in the business of deciding who had to associate with who it just became a specialness hierarchy.

  • Just Say'n||

    Religion is afforded special protection, because it is specifically mentioned as afforded special consideration in the First Amendment. Granted, I would have preferred if it referred to the 'the right of conscience', rather just 'religion' (as Madison's first draft did say), but it is what it is.

    I know sell-out libertarians want to foresake all individual rights once challenged by Lefties, but religious accomodation has existed since the beginning, off an on, and to not defend this practice is exceptionally reactionary.

  • Pat (PM)||

    religious accomodation has existed since the beginning

    Not really in the modern sense. There wasn't "religious accommodation" until we began passing laws that violated every other tenet of the first amendment by creating class-based restrictions on association and speech. The libertarian answer to this is that we ought to do away with religious freedom because it would be gauche to complain at this point about all of the 1A freedoms we lost over the last century.

  • Mickey Rat||

    Is this, finally, a hill Libertarians are willing to die on?

  • Bodica Slayer of Woodchip||

    But Gillespie and Welch said the "libertarian era is upon us", silly.

  • Zeb||

    The libertarian answer to this is that we ought to do away with religious freedom because it would be gauche to complain at this point about all of the 1A freedoms we lost over the last century.

    Huh? The libertarian answer is that people should be able to do whatever they want if it doesn't harm others. If laws were libertarian, there would be no need for a special guarantee of religious freedom because religious freedom is part of general freedom.

    Also, I'd contend that 1st amendment freedoms are some of the few that have actually become better protected over the last century. It's far from perfect, but it could be a lot worse.

  • ||

    Huh? The libertarian answer is that people should be able to do whatever they want if it doesn't harm others.

    I think he meant Libertine/LINO/Cosmo-libertarians. Considering Gary Johnson's stance on many of these issues, even *L*ibertarians is pretty accurate.

    The same "libertarianism" that loudly advocates for open borders while quietly 'going along to get along' with the free shit welfare state or adamantly states that NC's SB2 violates the rights of (gay? and) transgendered individuals while quietly acknowledging that business owners really should be free to deny their restrooms to anyone at any time and for any reason.

  • retiredfire||

    "1st amendment freedoms are some of the few that have actually become better protected over the last century."
    Huh?
    Freedom of association was virtually completely lost with the "Civil Rights" Act and religious freedoms are under constant assault. The only one strengthened is the super-freedom granted to the press.

  • Just Say'n||

    Not true at all. The 'sherbert test' was good law from the 1960's until the early 1990's (the federal RFRA was only passed to reestablish the 'sherbert test'). And before then there were numerous examples of accommodations made for the religious. In fact, all civil rights legislation includes a religious accommodation or exemption clause. Heck, the Founding Fathers even accommodated Quakers by stating in the Constitution that the president is to 'swear an oath or affirm'. They knew that Quakers didn't believe in making oaths, so they allowed for an exemption.

    The American Enlightenment prioritized religious pluralism over secularism, like the French would eventually embrace. Confining religion to homes and churches and forbidding state accommodation is to return society to pre-Enlightenment governance.

    So, if you disagree with religious accommodation then you have to admit that you are a reactionary that wants to return to a pre-1800's world.

  • Jayburd||

    I'm all for witchcraft reparations.

  • GILMORE™||

    (*footnoting as stupidest thing said yet today)

  • Bodica Slayer of Woodchip||

    You should BECOME a religion.

    There, Problem solved.

  • Longtobefree||

    First the "reasonable restrictions" on the second amendment. Then, before they even complete the elimination of that right, comes the same approach to the first amendment. And one of the major party candidates for president has stated that " . . . the second amendment, like the whole constitution, is subject to reasonable restrictions . . ". Guess who she thinks gets to decide what restrictions are reasonable? If not her, then for sure the supreme court judges she appoints.

  • C. S. P. Schofield||

    Throughout history, various Elites have determined that they were put on earth by Divine Providence to tell the rest if us slobs what to do. Traditionally, they have taken a very dim view of anything that made telling them to piss off at all practical. The Left have ALWAYS hated 'free speech'. Oh, they may have appealed to it when it was to their advantage, but they didn't MEAN it.

    Some years back I read a book about theHollywood Reds and the 'Black List'. I was unsurprised to discover that the Blacklisted Martyrs were a bunch of bullying Stalinists who loved to persecute those of their fellow Communists who didn't stick slavishly to the Party Line, and that a significant number of the people who (horror of horrors) 'named names' were victims of their bullying who were getting some off their own back.

  • Jerryskids||

    The old "balancing" of rights, with no regard to the fact that our Founding Fathers already put a balancing test right into the Constitution - "Congress shall make no law" balanced against the idea of allowing the government to decide which of your rights are convenient for them to respect. Once you've allowed them to change "Congress shall make no law" to "Congress shall make no law unless they've got a good reason to or, in some cases, a compelling reason to" well, it's down the slippery slope you go and now here we are.

  • Radioactive||

    or they smoked some real good shit that day? sounds like a fine basis for legal argument...

  • Rich||

    Well said.

  • Robert||

    It becomes like Canada's bill of rights, only w/o need of legislative declaration that a liberty is superseded by it.

  • thom||

    The commission showed its hand by writing that the federal RFRA (which Bill Clinton signed to ensure Americans wouldn't be forced to violate their religious beliefs absent a compelling government interest and no less burdensome alternative) needs to be altered so that everyone understands that it "creates First Amendment Free Exercise Clause rights...only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination."

    Ah yes, they'd have me understand that it's legislation that creates the rights described in the first amendment. These definitely aren't inalienable rights inherent in personhood. Nope! Just some rights extended to me graciously by the RFRA. People like this terrify me.

  • Hamster of Doom||

    There seems to be a large, and growing, percentage of people who believe the only inalienable right is their right to control everyone around them with an iron fist.

  • Bodica Slayer of Woodchip||

    Or better - that rights are gifts from government.

    If government doesn't give it to you first, you can't have it.

  • C. S. P. Schofield||

    Don't be terrified by them, or you will spend your life curled into fetal position. There are always self-selected "betters" who will graciously tell their inferiors (the rest of us slobs) how wonderful they make the world for us. Are these swine a serious threat to our liberties? Of course. Their kind always are. But the cold facts are that if they were a lot more dangerous than usual, they would not be losing on the Second Amendment front. That they have to come out in the open like this shows that the quiet control of the media that they had for decades is slipping. They are getting frantic on a number of fronts.

    Be of good cheer. If they were totally in charge, Trump wouldn't be happening (not that he's a choice I'd make independent of circumstances) and Shrillary would have been "opposed", both in her own party and in the main event, by colorless drones. None of her 'scandals' (is it really a scandal when a crook acts like a crook?) wouldn't have ever made it into the public view. You would have to ALREADY be on the mailing lists of groups like the Birch John Society to know what a lying twunt the Democrats have nominated.

  • sarcasmic||

    There would be little to take issue with here if the discrimination in question were the work of the government, a la state-mandated segregation under Jim Crow.

    Nuh uh! Jim Crow was created by racist businesses and abolished by government!

  • WTF||

    Created by racist Republican government and businesses and abolished by Democrats!

  • Doctor Whom||

    Jim crow was laissez-faire. I've actually been told so.

  • sarcasmic||

    Me too. The fact that businesses were required under penalty of law to segregate is meaningless. Business is evil, and government is good. 'Nuff said.

  • C. S. P. Schofield||

    The puling ignorance of the Liberal Intellectual never ceases to amuse me.

  • Bodica Slayer of Woodchip||

    Someone called me a sociopath once.

    I said the best way to end discrimination is to let the free markets truly be free.

    "What?" the proggie exclaimed. "Your free markets are invitations to whites only lunch counters!"

    "But you willingly paying your hard-earned money to patronize a bigot", I said. "Government law against discrimination doesn't end it - it just forces it underground. Why would you willingly patronize such a business - the bigot gets rich and you get poor service."

    "I'd sue him", said the proggie. " If he gives me poor service, I'd sue him."

    "You can sue him but you'd lose," said I. "You have no guarantee of good service."

    "I'd sue him," said the proggie.

    "You'd still lose in court. At most, you could give him a bad Yelp! review and never patronize him again. Which is what he wanted in the first place. Strike one". Said I

    "Yeah but - I'd sue him!" said the proggie.

    "Or, he could slip some ex-lax in your chocolate ice cream. Again, there is no guarantee of service and people who are forced have a rebellious way of reacting . " I replied

    "Yeah, but I'd sue him AND he'd go to jail", said the proggie, extremely irritated by now. "And, and - you're NOT very Christian!"

    "You're right, I'm an apatheist. And you still can't prove he did anything to you. Shit happens. E caveat emptor", I wittingly replied

    "Okay, but YOU'RE A SOCIOPATH!" the red-faced proggie exclaimed.

    And - proggie hung up.

  • ||

    Welcome to post-racial America.

    Where is the surprise in this? The commission's chairman, Martin Castro, is an Obumbles appointee. Within the last couple of weeks there as a discussion here where he was quoted as essentially saying that rights are granted by government, pure Tonyspeak. He is an Obumbles man. This has been Obumbles MO since day one. Our so-called constitutional scholar has nothing but contempt for the constitution and the ideas that it is based on. He undermines it at every opportunity and all of his appointees are chosen with that goal in mind. He has repeatedly expressed contempt for citizens who revere our constitution and has gone after them using banana republic style tactics. What a contemptible piece of shit.

    Anyone who voted for Obumbles - Go. Fuck. Yourself.

    If you are planning on voting Cankles - Go. Fuck. Yourself. with a chainsaw.

  • WTF||

    When Hillary is elected, she will be in a position to shape the Supreme Court for generations. What little is left of the constitution will be gone forever.

  • ||

    Moreover, Obumbles was and for the foreseeable future is resigned to accepting gun rights, if only begrudgingly. Cankles gives no indication of having any similar restraint.

  • Lee Genes||

    Tipping point

    I think we all knew this was coming.

  • Bodica Slayer of Woodchip||

    So - the libertarian era isn't upon us and we were sold a pig and a poke.

  • Bill Dalasio||

    And we all know it will stop here. The erosion of the Constitution won't ever apply to Good People. And no one will ever think of forcing these standards in ways they don't like. The pendulum hasn't swung. This change is forever.

  • WTF||

    It's not a pendulum, it's a ratchet, and it only goes one way.

  • straffinrun||

    Nice. I'm stealing that.

  • Bill Dalasio||

    True. But the particular tastes of the gang in charge are a pendulum. Today our rights are eroded in the name of progressive egalitarianism. On what do the progressive egalitarians plan on relying to protect them when the people in charge want to use the power they've assigned the state to demand good, Christian family values.

  • sarcasmic||

    Yep.

    The logical conclusion of a system in which bad laws and regulations are "fixed" with more bad laws and regulations is a totalitarian state.

    Thus the road to hell is paved with good intentions.

  • straffinrun||

    Sure, it's not exactly right, but this is one way to look at it.

  • Agile Cyborg||

    Hypersensitivity cocooned within the jarring folds of bruising legality. Trip on the edge of that onerous cliff and you instantly wire society into default failure. Fucking chancy times these.

  • Rebel Scum||

    Free exercise rights exist "only to the extent that they do not unduly burden" bans on discrimination, the report says.

    Something something "Congress shall make no law..." something something "abridging the freedom of speech..."

  • Agile Cyborg||

    When the brigades on the left and right merge their ideological polarity into familiar refrains involving fire and theaters you know liberty is quivering in her goddamn nightie.

  • Mickey Rat||

    Where does one find a right not be discriminated against by other private citizens in the Constitution?

  • OldMexican sine qua non||

    "civil rights protections ensuring nondiscrimination" as being "of preeminent importance."


    "I feel wronged , so gimme your stuff!"

    That's what it means. Don't say it doesn't, because you will sound foolish.

  • sarcasmic||

    Fairness and equality necessitate the abandonment of liberty and justice.

  • Agile Cyborg||

    Freedom dilutes the magic of justice.

  • OldMexican sine qua non||

    It's about private discrimination, such as when a Catholic school wants to hire only people who adhere to the Church's teachings.


    Or when I want to hire only womem over men, or men over women, or whoever strikes my fancy. What "civil rights" attempt to do is trample over private property rights under whatever excuse, be it "public accommodation" or "fairness".

  • The Fusionist||

    "The commission showed its hand by writing that the federal RFRA...needs to be altered"

    OK, so progs are again admitting that the law many of them supported in 1993 is something they oppose today.

    They changed their minds because, back in 1993, they thought protecting minority religious beliefs was all about peyote-ingesting Indians, beard-wearing Muslim prisoners, and others outside the icky Christian mainstream.

    Now to their horror they discover that the law might actually protect religious people they don't like - conservative Christians - so they drop their former support for the federal RFRA and similar laws they supported and pronounce that they had just discovered these laws were hateful and homophobic.

    The problem is that it took them some time to admit this was what they were really doing.

    Remember when Indiana passed its RFRA, and the prog talking point was that this bigoted Indiana law is *totally* different from the good federal RFRA?

    Now they've dropped that retarded talking point and flat out admitted they oppose the federal RFRA, too.

  • ||

    "Needs to be altered'

    I am guessing this means the commission will 'reinterpret' the law the way Title IX was reinterpreted by executive fiat. Who needs a legislature?

  • The Fusionist||

    The commission just issues reports. The reinterpreting will come from courts and executive agencies.

  • retiredfire||

    You can bet that the proggies will still require the peyote-ingesting Indians, beard-wearing Muslim prisoners, and others outside the icky Christian mainstream, to be able to do their thing. Being hypocritical never stopped them, before.

  • Alan Vanneman||

    The Civil Rights Commission is a solution looking for a problem and should be shut down, but giving employers the right not to hire individuals who "flout the strictures of their religion"? How would that work? If you're not a Catholic, you're "flouting the strictures" of the Catholic Church. Other religions are similarly uncharitable.

  • The Fusionist||

    Catholic institutions, including colleges, often hire non-Catholics, but the non-Catholics (in well-run institutions) are required to respect the Catholic character of the place where they work.

  • Pat (PM)||

    Are we still doing the Vanneman "you misspelled your name" meme?

  • Stephanie Slade||

  • Bodica Slayer of Woodchip||

    You're a nurse-midwife in a Catholic hospital and you perform abortions.

  • Damien||

    A reasonable article from Reason. Thank you.

  • Damien||

    Actually, every libertarian should hate the Supreme Court decision concerning gay marriage as unwarranted governmental intrusion into private affairs. Either no government support of government recognized marriage or let the people decide. The four lock steppers and the milquetoast took that away.

  • Zeb||

    I don't see anything particularly libertarian about letting the people decide. People can be quite authoriatarian.

    The decision was bad. It should have been decided on equal protection basis which would have left states the option of getting out of marriage altogether.

  • Mickey Rat||

    The difference between the American Revolution and the French Revolution comes up again.

    Do you value Liberty over Equality or Equality over Liberty?

  • Enemy of the State||

    As Friedman said, those who want equality before freedom will have neither. Those who want freedom before equality will have a high degree of both...

  • Bodica Slayer of Woodchip||

    Stephanie, I love you - but I wish Scott had written this article.

  • AD-RtR/OS!||

    Me thinks they have the cart before the horse.
    But then, the US Commission on Civil Rights has never been known, or seen, to be reasonable, or logical.
    They have their hammer, and the entire country is seen as a nail.

  • Laird||

    The RFRA is irrelevant. The Constitution is preeminent. Any statute is subordinate to it, and any regulation is subordinate to that. Sorry, Civil Rights Commission, your attempted power grab fails. You should all be forced to take Constitution 101.

  • Lt. Viktor Burakov||

    "Free exercise rights exist "only to the extent that they do not unduly burden" bans on discrimination, the report says."

    That is exactly backwards - bans and discrimination can exist only to the extent that they do not unduly burden individual Rights.

  • Enemy of the State||

    The entire Public Accomodations section of the 1964 CRA violates the 1st, 5th and 14th Ammendments. Repeal that and much of the power of the state to commandeer private proprty for public use goes away...

  • Jayburd||

    Who's responsibility is it and how do they defend that ratty old anachronistic piece of paper that some who would take an oath to defend actually wipe their asses with?

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