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No quick and easy answers in the law on religious freedom.

No quick and easy answers in the law on religious freedom.

The U.S. Commission on Civil rights finds that lawyers and the courts are stumped about religious liberty. There is no easy way to untangle the knots caused by the competing claims to protect minority groups and the free expression of religion.

The Atlantic:

It took the U.S. Commission on Civil Rights three years to produce its report on religious freedom and non-discrimination. With 27 pages, more than 1000 days of work, and 200-some additional pages of commentary, the document essentially amounts to this: Legal scholars have no idea how to resolve the government’s conflicting obligations to allow free religious exercise and protect minority groups from discrimination. Ultimately, legal language is not sufficient to resolve ultimate conflicts over belief and identity. Legislatures and litigators will have to continue muddling through, finding an imperfect balance between competing cultural norms.

This issue, perhaps more than any other, has been a significant source of recent conflict within the court system. Supreme Court decisions on birth control and gay marriage have highlighted religious dissent on issues of sexuality and gender identity, but recent conflicts have covered everything from the conscience claims of ministers to sectarian town prayer to the rights of religious student groups. Created nearly 60 years ago, the USCCR exists to advise the United States government on civil-rights issues, even though it has no power to enact or enforce any of its findings. But even with a mandate to regularly investigate controversial issues, the Commission stalled out on religious liberty.

“Because the report raises a lot of controversial positions … it took a while for the Commission, as a bipartisan body, to reach any agreement,” said Brian Walch, a spokesman. “It’s a spine-y issue.”

Are they contradicting rights…or have the goal posts been moved?

…conflicts over religious liberty and non-discrimination also involve two fundamentally different world views, Kirsanow argued.

“The first, which is secularism, holds an individual’s unfettered sexual self-expression as a preeminent concern because it is an aspect of their self-creation,” he wrote. The second, which he purposefully articulates in the language of Christianity, is that “individuals are not their own judge, but rather are subject to divine law and divine judgment. The morality of a person’s conduct does not ultimately depend upon whether he thinks it is right, or whether it accords with his desires, but whether it conforms to divine law.”

This is one, very specific way of framing secular and religious commitments. But his argument suggests that conflicting legal principles are only a small part of religious freedom and non-discrimination fights: Deeply held beliefs about the nature of morality, God, and identity are at stake. As cultural norms around those beliefs have shifted—as LGBT people have become much more accepted, for example—the legal system has struggled to keep up. This is evident in courts’ split over issues like gender identity.

But it’s also clear from the Commission’s recommendations. To summarize, very roughly, it found that “overly-broad religious exemptions” can create problems; that religious exemptions can’t limit the freedom of others; that courts should follow the Supreme Court precedent set in Employment Division v. Smith, which emphasized protection of religious beliefs over religious exercise; that the federal government should consider clarifying its Religious Freedom Restoration Act, the law that many religious groups use to seek exemptions from the law; and that states should clarify their versions of this law, too.


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JC Fisher

The rights of people to their religious (and political) expression are important, but I don’t see how you can rank them as equal/greater to the rights of people on their immutable characteristics of race, gender, sexual orientation.

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