In March 2013, the U.S. Commission on Civil Rights held a briefing to examine conflicts between religious liberty and nondiscrimination norms. Although it took over three years for the Commission to approve a report based on the testimony received at that briefing, the report has finally been released and is available here. In this series of posts, I hope to illuminate some of the contours of this conflict.
The casual observer may wonder why there are conflicts between religious liberty and nondiscrimination norms. For a detailed explanation, I refer the reader to Professor Robert Samuelson’s recent essay in Mosaic, “Who’s Afraid of Religious Liberty?” Briefly, there are several reasons the conflict arose. One, which Samuelson discusses, is that for most of American history, the default rule was liberty. One was free to associate or not associate with whomever one chose. This included the right to discriminate among one’s potential customers, employees, or members. Only a few businesses were subject to greater regulation. “In the period before and after the Civil War, American courts began limiting the businesses on which the duty to serve would be imposed to the narrow class of innkeepers and common carriers.”
The 1964 Civil Rights Act changed the default. As Samuelson notes, it was far more expansive than merely striking down Jim Crow. Segregation laws were just that – laws. The state prohibited a business from serving an integrated clientele, even if it wanted to. (In fairness, many businesses likely would not have wanted to do so, or would have been dissuaded from doing so by public opinion or threats of violence.) The 1964 Civil Rights Act not only prohibited state-sponsored discrimination, in many instances it prohibited private discrimination. The Act also reached beyond its primary goal of remedying the evil of widespread discrimination against African-Americans and, as is often the case in the legislative process, added a number of other protected classes. Subsequent civil rights laws have added still more protected classes.
As an African-American myself, many of these changes were welcome, indeed life-changing. No longer did you have to drive through the night because there were no hotels that served blacks. For several decades, the reach of the anti-discrimination laws was cabined by the nature of the protected classes. It was impermissible to discriminate on the basis of immutable characteristics, such as race or sex, but it was permissible to discriminate based on behavior. American society changed from one in which it was generally permissible to associate and discriminate to one in which freedom of association and the right to discriminate are curtailed.
Important changes occurred over the past few years that extended the reach of the civil rights laws. First, the view of many Americans shifted to the presumption that homosexuality is an innate, immutable characteristic akin to race – although not even all members of the LGBT community agree that this is the case. Americans generally place a high premium on sexual liberty, so once persuaded that homosexuality was innate and immutable, many were unwilling to draw a distinction between a person’s sexual orientation and that person’s sexual behavior.
Second, as adherence to traditional religious faiths waned, adherence to the contemporary Western version of secularism increased. Nondiscrimination norms and sexual liberty are perhaps the most dearly held aspects of secularism. Contemporary Western secularism is not so much an absence of faith as a competing faith that holds the ultimate allegiance of many Americans, including many who are nominal adherents of traditional faiths. For those who are interested, I suggest reading David Bernstein’s thoughtful response to the earlier-mentioned essay by Professor Samuelson, “How Anti-Discrimination Became a Religion, and What It Means for Judaism”.
Third, nondiscrimination norms became so culturally powerful that in the minds of many people they even trump constitutional guarantees. This is reflected in the findings and recommendations adopted by the U.S. Commission on Civil Rights in its new report. For example, in its press release announcing the release of the report, the Commission majority stated:
One important Commission finding is that the “U.S. Supreme Court has recently reaffirmed the foremost importance of civil liberties and civil rights, including nondiscrimination laws and policies,” and that “[r]eligious 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 these civil rights.”
Notice what the Commission majority is saying here. Nondiscrimination protections, some of which (such as protections for sexual orientation and gender identity) were announced only months ago, should trump centuries-old constitutional guarantees of religious liberty and free association. Even the language used—“religious exemptions … when permissible” [emphasis added]—suggests that these rights are granted at the whim of the government.
This is a dramatic departure from the historic American understanding of constitutional rights. Yet this is precisely the direction in which the Commission majority urges constitutional jurisprudence proceed.
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Peter N. Kirsanow is a partner at the firm of Benesch, Friedlander, Coplan & Aronoff, a former member of the National Labor Relations Board, and a member of the U.S. Commission on Civil Rights. He lives in Cleveland. The opinions expressed are his alone and not those of the U.S. Commission on Civil Rights.
 Paul Vincent Courtney, Comment, Prohibiting Sexual Orientation in Public Accommodations: A Common Law Approach, 163 U. Pa. L. Rev. 1497, 1509-10 (2015); see Pearson v. Duane, 4 Wall 605 (1866); Washington & G.R. Co. v. Patterson, 9 App. D.C. 423, 432 (D.C. App. 1896) (“The defendant is a common carrier of passengers, and the female plaintiff was entitled to be carried as a passenger, if there was room in the car for the purpose.”).