Letter to Chairman Castro, US Commission on Civil Rights - Religious Liberty

Letter

Dear Chairman Castro:

I reviewed, with both interest and deep concern, the Commission's report titled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.

The report's asserted focus is the "appropriate balance between religious liberty and nondiscrimination principles." That effort must begin with an honest consideration of each side of the scale. In my view, the report fails to do that.

To begin, a majority of the Commission appears to believe that, in all but the narrowest of circumstances, the civil right to freedom from discrimination trumps the constitutional right to freely exercise religion. In embracing this position, however, the report adopts a stunted and distorted version of religious liberty, suggesting that claims of religious conscience are little more than a cloak for bigotry and hatred. I reject the false picture of religious liberty presented in the report.

The report also fails properly to account for the primacy of religious liberty in our nation's history, founding principles, and legal commitments. Remarkably, the report's title does not even mention the term "religious liberty," but rather subsumes it as one of a number of "civil liberties" that, one supposes, are of varying significance.

Indeed, I cannot find any discussion in the report of the central status that religious liberty has always had in American society and law. James Madison identified the free exercise of religion according to conviction and conscience as an inalienable right. He further explained that religious exercise "is precedent, both in order of time and in degree of obligation, to the claims of civil society." As Supreme Court Justice Arthur Goldberg wrote, to America's founders, religious liberty was preeminent among fundamental rights. More recently, the Congress of the United States unanimously declared in the International Religious Freedom Act that religious liberty "undergirds the very origin and existence of the United States."

In a series of Senate floor speeches one year ago, I detailed additional evidence for the primacy of religious liberty in American life. This evidence includes declarations and treaties such as the 1948 Universal Declaration of Human Rights, the 1975 Helsinki Accords, and the 1992 International Covenant on Civil and Political Rights. In annual proclamations, Presidents of both parties have said that religious liberty is essential to our dignity as human beings and that no freedom is more fundamental than the right to practice one's religious beliefs.

In those Senate speeches, I also outlined the substance of religious liberty. It includes behavior as well as belief, in public as well as in private, and collectively as well as individually. This understanding of religious liberty is clearly presented in both the domestic and international commitments the United States has made throughout its history.

The Commission's report, however, fails to acknowledge any of this. To the contrary, the report appears to make every effort to confine, narrow, and limit religious liberty. It would have religious liberty apply to belief but not behavior, to be exercised individually in private rather than collectively in public.

And although the report professes to seek a "balance" between religious liberty and nondiscrimination principles, its findings and recommendations undermine any attempt at "balance." The very first finding states that "protections ensuring nondiscrimination"--including mere "policies"--are "of preeminent importance in American jurisprudence." Constitutional rights, it seems, or at least the constitutional right to freedom of religion, must take a back seat to policies identified in statute and regulation. I cannot think of another context in which advocates seriously assert those priorities.

Finally, I am troubled by the anti-religious sentiments in several of the supplementary statements in the report. In one statement, you say that religious liberty has become a "code word" for "discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy," and other forms of "intolerance." You then tie contemporary religious liberty claims to the shameful legacy of slavery and Jim Crow. This is false equivalence in the extreme. Today's sincere believers are not seeking to subjugate vast swaths of fellow Americans beneath the rod of government oppression. Rather, they are seeking room to live out their faith in a society that is fast abandoning traditional views on marriage and sexuality.

Because the Commission's report is based on a briefing before the Commission, it is possible that the Commission was not presented with a comprehensive picture of the history and status of religious liberty in our nation. If so, then perhaps part of the fault lies with how the briefing was organized. Nonetheless, the serious and timely topic of reconciling nondiscrimination principles with freedom of religion cannot adequately be addressed without a more accurate understanding of religious liberty.

As you can tell, I feel strongly about religious liberty. It is an essential and defining part of our nation's heritage and identity and I am committed to defending it.

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