Religious Liberty

Floor Speech

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Mr. SASSE. Mr. President, I rise today to address the recently released new report of the U.S. Commission on Civil Rights entitled ``Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.''

The Commission on Civil Rights has a glorious and profound history in our Nation. Founded in 1957, the Commission initially had the grand cause of ending the horror and the tragedy of Jim Crow laws in our Nation.

Sadly, however, the Commission's focus has recently strayed, and its new report poses profound threats to the historic American understanding of our First Amendment. In the Commission's just released report, the majority reveals a disturbingly low view of our first freedoms. It actually puts the term ``religious liberty'' in scare quotes, and it says that religious liberty must now be subservient to other values.

Here is a snapshot of the majority's position from this new report, in their own words:

Progress toward social justice depends upon the enactment of, and vigorous enforcement of, status-based nondiscrimination laws. Limited claims for religious liberty are allowed only when religious liberty comes into direct conflict with nondiscrimination precepts. The central finding which the Commission made in this regard is:

Religious 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.

Additionally, the Commission's Chair, Martin Castro noted:

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.

But are the phrases ``religious liberty'' and ``religious freedom'' simply hypocritical code words? Are they shields for phobias, intolerances, and power struggles?

Of course, they are not.

Religious liberty is far more beautiful, far more profound, and far more human than that. Our national identity is actually based on this very premise.

The American founding was unbelievably bold. Our Founders were making the somewhat arrogant claim, almost, that almost everyone in the history of the world had actually been wrong about the nature of government and about the nature of human rights.

Our country's Founders believed that God created people with dignity and that we have our rights via nature. Government is our shared project to secure those rights. Government does not come first. Government is not the author or the source of our rights, and this conviction matters for today's conversations. In fact, this conviction is our Constitution.

No King, no Congress, no Senate, no Commission gives our people their rights, for government is not the author or source of rights. Government is a tool to secure our rights.

We have rights because we are people, created with dignity. Government is that shared project to secure those rights that we have because we are people created with dignity. So we the people are the ones who actually give the government limited authorities. It is not the government that is condescending to grant us some rights.

Gail Heriot, who is a member of the Commission, offered a compelling statement and a healthy rebuttal to the majority's very low view of religious freedom. Thankfully, Ms. Heriot indicated her opposition to the runaway chairman's bizarre dismissal of religious freedom. She considered asking him to withdraw it, but then she decided against it, and here is her reason why. She decided:

It might be better for Christians, people of faith generally, and advocates of limited government to know and understand where they stand with him--

Where they stand with this chairman. Ms. Heriot notes--and I am going to quote her here at length:

The conflicts that can arise between religious conscience and the secular law are many and varied. Some of the nation's best legal minds have written on how the federal and state governments should resolve those conflicts. But no one has ever come up with a systematic framework for doing so--at least not one that all Americans agree on--and perhaps no one ever will. Instead, we have been left to resolve these issues that arise on a more case-by-case basis.

While she does not aim to create that framework in her remarks, she continues by saying:

The bigger and more complex government becomes, the more conflicts between religious conscience and the duty to comply with law we can expect.

Back when the Federal Government didn't heavily subsidize both public and private higher education, when it didn't heavily regulate employment relationships, when it didn't have the leading role in financing and delivering healthcare, we didn't need to worry nearly so much about the ways in which conflicts with religious conscience and the law arise. Nobody thought about whether the Sisters of Charity should be given a religious exemption from the ObamaCare contraceptive mandate, because there was no Obamacare contraceptive mandate. The Roman Catholic Church didn't need the so-called Ministerial Exemption to Title VII in order to limit ordinations to men (and to Roman Catholics), because there was no Title VII.

What she is talking about here is about the ways that expanding government tends to crowd out civil society and mediating institutions. She is talking about the ways that power drives out persuasion. She is talking about the ways that law crowds out neighborliness.

She continues:

The second [ . . . ] comment I will make is this: While the targeted religious accommodations approach may sometimes be a good idea, it is not always the best strategy for people of faith. Targeted religious accommodations make it possible for ever-expanding government bureaucracies to divide and to conquer. They remove the faith-based objections to their expansive ambitions, thus allowing them to ignore objections that are not based on faith. The bureaucratic juggernaut rolls on. People of faith should not allow themselves to become just another special interest group that needs to be appeased before the next government expansion is allowed to proceed.

Here, she is talking people of faith.

They have an interest in ensuring the health of the many institutions of our civil society that act as counterweights to the state--including not just the Church itself, but also the family, the free press, small business and others. They have an interest in ordered liberty in all its manifestations. A nation in which religious liberty is the only protected freedom is a nation that soon will be without religious liberty as well.

Are people of faith simply another special interest group that should be appeased? I suggest--along with Ms. Heriot and, frankly, far more importantly, with all of the Founders of this Nation--they are not. People of faith and people of no faith at all, people of conscience, are simply exercising their humanity, and they do not need the government's permission to do so.

The Commission's report is titled ``Peaceful Coexistence.'' Who wants to disagree with a title like that? But this profession of peaceful coexistence must never quietly euthanize religious liberty just because Washington lawyers and bureaucrats find it convenient and orderly to do so. It must never be used to chip away at our most fundamental freedom, for the First Amendment is a cluster of freedoms: freedom of religion, the press, assembly, and speech. They all must go together. It must never undermine the essence of what it means to be human. It must never erode the American creed, which should be uniting us. We can and we should disagree peaceably. We should argue and debate and seek to persuade. We should jealously together be seeking to defend every right of conscience and self-expression.

In closing, I ask my colleagues from both parties--for this should not be a partisan issue, as the First Amendment is not the domain of any political party--to consider the dangerous implications of this new report.

To my progressive friends, I invite you to become liberals again in your understanding of religious liberty and its merits.

To my conservative friends, let's cheerfully celebrate all Americans' freedoms. Let's work to kindly dismantle the pernicious myth that somehow your freedoms are merely a cover for fear or hate or some other phobia. These freedoms are too important to relinquish. They are the essence of what we share together as Americans.

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