by Michael Avramovich
Prior to the recent presidential trip to the G20 summit in China, I wrote on these pages about how Chinese human rights activists had met with Susan Rice, Mr. Obama’s national security advisor, to urge that Mr. Obama advocate for religious and other human rights in China to President Xi and the other Chinese Communist government officials. At the G20 summit, there was no public comment or statements made regarding religious liberty and related human rights issues in China, and so one can infer that little of substance was articulated by Mr. Obama. As a result, many were disappointed with Mr. Obama’s failure to address these issues openly and candidly with Chinese officials.
But from another obscure part of the Obama Administration, we may see why religious liberty issues are not a high-order priority for this Administration. Martin R. Castro, formerly of Chicago who declares in his biography that he is “is the proud product of Head Start and affirmative action in higher education,” is the chairman of the United States Commission on Civil Rights (the “Commission”). The Commission is an “independent” federal agency whose mission is to “inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.” Earlier this month, the Commission issued a 306-page report on “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” which is available here. In his comments, Chairman Castro wrote the following:
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.
Thus, the Chairman declared that “religious freedom” and “religious liberty” have become merely “code words” for intolerance, “Christian supremacy” and committing every form of identity-politics sin, and thus, the First Amendment religious liberty rights must always yield before anti-discrimination laws.
A majority of other commissioners added the following bon-mots:
The fight to make religious-based exemptions to nondiscrimination laws preeminent over status-based civil liberties protections is characterized often as a battle being waged by some Christians who purport to speak for all Christians.
Then, those commissioners go on to describe how:
In 2015, twenty-eight state legislatures were already considering more than eighty-five anti-LGBT bills by mid-March. By early 2016, approximately two dozen state legislatures were considering at least that many bills which aim to limit Americans’ access to marriage rights, other government services, commercial services, health care services, adoption and foster care services, and other aspects of daily life based upon “religious exemption.” Some of these far-reaching proposals specifically target nondiscrimination protections for lesbian, gay, bisexual, and transgender (“LGBT”) Americans and some seek to limit women’s rights to reproductive freedoms. Many proposals are moving very quickly, and advocacy groups are monitoring them on an almost-daily basis.
(All citations were to Human Rights Campaign and the America Civil Liberties Union “reports.”) The Commission had particular problems with the Religious Freedom Restoration Act (“RFRA”), and has now called upon courts to restrict both the federal and state versions of the RFRA. While much can be written about the conflict of values and ideas, I am reminded of a law review article written several years ago by religious liberty scholar, Professor Douglas Laycock, who observed, “For the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle – suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.” He posits “that the deep disagreements over sexual morality . . . have generated a much more pervasive hostility to certain kinds of religion, and this hostility has consequences,” and counseled against taking a “path [that] causes the very kinds of human suffering that religious liberty is designed to avoid,” a path leading to a society in which religious persons “who cannot change their mind [about a moral issue] are sued, fined, forced to violate their conscience, and excluded from occupations if they refuse.” Personally, I find that Dr. Castro and many of his commissioners are out of touch with our Constitution as government officials misinterpret and misuse nondiscrimination laws in order to punish religious citizens and organizations. However, it is a clear reminder, dear brothers and sisters in Christ, that elections have grave consequences.