U.S. Civil Rights Commission Report Begins Next Assault Against Religious Liberty

The United States Civil Rights Commission has proclaimed that religion is an impediment to civil rights and has prepared a constitutional briefing designed to defeat religion’s “discriminatory” and “intolerant” status in society.

In its recent report, deceptively entitled “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” the United States Civil Rights Commission proposes that the country take the next step beyond the Obama Administration’s antagonism to religious liberty. The Commission concludes that religion must defer to the continuing expansion of governmentally-conceived and governmentally-enforced “rights.”

The United States Civil Rights Commission, created in 1957, has eight commissioners serving six-year terms, which can be renewed. Four are appointed by the President and four by the Congress. According to its enabling statute, not more than four members can be of the same political party at any one time. Faced with the reality that there were already two Democrats on the Commission, President Barack Obama appointed two Democrats and two liberal “Independents” when he took office. So, the liberal/Democrat block is six commissioners of the total of eight.

The vote for the Peaceful Coexistence Report was five or six in favor (the vice-chair, Obama appointee Patricia Timmons-Goodson, made no statement unlike all the other commissioners) and two—Peter N. Kirsanow, the only Republican member, and Gail Heriot, an Independent—opposed.

Under its enabling statute, the Civil Rights Commission has considerable legal authority, and it has used that authority to have a substantial impact on the national civil rights agenda. For more than fifty years, the Commission has been cited by the Supreme Court in its decisions. With its subpoena power, the Commission can get access to records and documents anywhere in the country, and it can compel the attendance of witnesses. The Commission has regional offices and state advisory committees in every state. It is the inspiration for state civil right and “human rights” commissions, at least one of which has the mission not only to “prevent” but also to “eliminate” discrimination.”

The Obama administration’s attempt to curtail religious liberty has been stopped by the Supreme Court three times in the last four years. Both the Hosanna Tabor (2012) and Hobby Lobby (2014) decisions were unprecedented for the reason that the federal government had never litigated against religious persons and organizations under the pretexts the administration argued in those cases. Hosanna Tabor stands for the stupendously important principle, unanimously recognized by the Supreme Court but not by the Obama administration, that religious institutions may select their own teachers and ministers. And against the increasingly prevalent view of progressive society that religion is okay so long as it is restricted to Sunday morning services while progressives are otherwise at brunch, Hobby Lobby means that religious people may live their religion all the time. Lastly, in remanding the case for further consideration, the Court did not give in to the Obama Administration in the Little Sisters of the Poor case of 2016.

But the Civil Rights Commission goes several steps further in its “Peaceful Coexistence” report. It emphatically repudiates the Supreme Court’s decision in Hobby Lobby and begrudgingly accepts with major reservations the decision in Hosanna Tabor. The Report was prepared before the Little Sisters case, but the issues in that case are effectively rejected as well. Beyond mere laws and the Constitution, civil rights “policies,” and “nondiscrimination principles,” are “preeminent,” the Commission asserts. What it disparagingly calls “religious exemptions” based on the “tenets of faith” have the effect of “significantly infring[ing] upon these civil rights.” Thus, the constitutional situation is reversed. The superior and free-standing principle of “nondiscrimination” is placed above the explicitly stated constitutional rights to religious liberty in the First Amendment.