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Reconciling Non-Discrimination Principles with Civil Liberties


Public Comment
Submitted on April 21, 2013 to the U.S. Commission on Civil Rights by Thomas M. Messner

Re:    March 22, 2013 Briefing on Reconciling Non-Discrimination Principles with Civil Liberties

Dear Commissioners:

On March 22, 2013, the U.S. Commission on Civil Rights conducted a briefing on reconciling non-discrimination principles with civil liberties.[1] As one of the experts who testified at this briefing explained in his written statement, “The sweeping application of non-discrimination principles poses an increasingly severe threat to civil liberties, especially to our first liberty of religious freedom.”[2]

The Heritage Foundation has published several reports related to the issue of growing conflicts between nondiscrimination policies and the free exercise of religious and moral conscience.

“Protecting Religious Staffing by Religious Organizations: A Wise and Just Public Policy” (January 24, 2012) addresses continued efforts by some activists to impose religious nondiscrimination mandates on faith-based organizations that receive federal funds.[3] This report explains, “Religious staffing by religious organizations is an established, baseline position in federal law that deserves continued support. Most fundamentally, religious staffing by religious organizations is socially desirable conduct that benefits individuals and society, not unjust discrimination that should be eradicated through law. . . . [P]ublic officials should shore up, not tear down, legal protections for religious staffing by religious organizations.”[4] Regrettably, the misguided practice of prohibiting religious association by religious groups also appears in measures taken by officials at several universities to require religious student organizations, as a condition of full recognition, to ignore religion when selecting their student leaders.[5]

“Same-Sex Marriage and the Threat to Religious Liberty” (October 30, 2008) explains that the interaction of same-sex marriage and nondiscrimination policies can threaten the religious freedom of people and groups that continue to support marriage as one man and one woman.[6] The report explains, “First, institutions that support the traditional understanding of marriage may be denied access to several types of government benefits, and individuals who work in the public sector may face censorship, disciplinary action, and even loss of employment. Second, those who support the traditional understanding of marriage will be subject to even greater civil liability under nondiscrimination laws that prohibit private discrimination based on sexual orientation, marital status, and gender.”[7] This report summarizes several cases that will inform the Commission’s inquiry.

“Same-Sex Marriage and Threats to Religious Freedom: How Nondiscrimination Laws Factor In” (July 29, 2011) explains, “Conflicts between same-sex marriage and religious freedom will often involve some type of previously adopted nondiscrimination law or policy, and nondiscrimination laws can impose burdens on religious freedom even in jurisdictions that do not legally recognize homosexual unions as marriages.”[8] This report explains, “Many nondiscrimination laws included protections for religious and moral conscience when they were first enacted. Lawmakers should update those laws when radical legal changes such as same-sex marriage create new situations that are likely to trigger significant burdens on the free exercise of religious and moral conscience in the future.”[9]

“The Price of Prop 8” (October 22, 2009) documents numerous instances of intimidation and harassment directed against people and groups that supported Proposition 8, the marriage amendment in California.[10] Because the briefing conducted by the Commission on March 22, 2013, concerns conflicts between nondiscrimination policy and civil liberties, the Commission’s inquiry naturally will focus on harms stemming from nondiscrimination policies imposed by the government. However, “the law can be a teacher,” Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring), and by imposing policies that condemn certain religious and moral viewpoints as irrational prejudice and bigotry, the government can make it more likely that private citizens and institutions will do the same thing. Therefore, the Commission should take account of incidents involving non-state actors burdening private citizens and institutions because they hold traditional religious and moral viewpoints on issues such as the definition of marriage, sexual morality, family structure, religious association by religious groups, abortion, artificial contraception, or other issues where government policy could be encouraging social intolerance of such viewpoints.[11]

Finally, “From Culture Wars to Conscience Wars: Emerging Threats to Conscience” (April 13, 2011) explains how nondiscrimination mandates and similar policies can escalate “cultural” disagreements on a wide range of issues into more-fundamental struggles for the free exercise of religious and moral “conscience” on those same issues.[12] This report explains, “Moral deliberation cannot—and should not—be avoided, even in law and policy. … In many cases, however, government overreach raises the stakes of moral discourse and encourages intolerance on the part of private citizens. When civil liability or equal access to government benefits depends on private citizens adopting the ‘official’ state position on controversial moral issues, the potential for infringement of religious liberty and rights of conscience is clear. As the diversity of moral viewpoints in society increases, the number of social conflicts will only rise.”[13] This report summarizes several such conflicts.

As the Commission considers the growing problem of conflicts between nondiscrimination policies and the free exercise of religious and moral conscience, the Commission should recall that, in America, “liberty should be the starting point, not a begrudged afterthought, in every context of law and public policy.”[14] In addition to honoring fundamental principles of freedom, protecting the free exercise of religious and moral conscience is one of the “most effective and principled ways to promote social peace and civic fraternity,” especially in pluralistic societies, such as ours, “where consensus is elusive.”[15] In contrast, “when nondiscrimination policies are misused as instruments for the intolerant suppression of religious speech and traditional religious beliefs, then the pluralism so vital to sustaining our political and religious freedoms will no longer exist.”[16]

Therefore, as a general rule, “[w]here governments choose to act, whether through regulation or through condition-based funding, they should promote respect for religious and moral conscience, not discourage it.”[17] Further, “private citizens and institutions should encourage each other to recognize the value of moral conscience and to respect it as an essential ingredient of a free and civil society.”[18]

The Commission’s timely study of conflicts between nondiscrimination policies and civil liberties provides an important opportunity to develop and advance these guiding principles.




Thomas M. Messner

Visiting Fellow, The Richard and Helen DeVos Center for Religion and Civil Society

The Heritage Foundation

Washington, D.C.

Show references in this report

[1] Press Release, “U.S. Commission on Civil Rights Announces Briefing on Reconciling Non-Discrimination Principles with Civil Liberties,” U.S. Commission on Civil Rights, March 11, 2013, http://www.usccr.gov/press/2013/PR_Religious-Liberties-Briefing.pdf (accessed April 18, 2013).

[2] Edward Whelan, “Testimony of Edward Whelan,” testimony at United States Commission on Civil Rights, hearing on “Peaceful Co-Existence? Reconciling Non-Discrimination Principles with Civil Liberties,” Washington, DC, March 1, 2013, http://www.eppc.org/publication/non-discrimination-principles-versus-civil-liberties/ (accessed April 18, 2013).

[3] Thomas M. Messner, “Protecting Religious Staffing by Religious Organizations: A Wise and Just Public Policy,” Heritage Foundation Backgrounder No. 2645, January 24, 2012, http://www.heritage.org/research/reports/2012/01/protecting-religious-staffing-by-religious-organizations-a-wise-and-just-public-policy.

[4] Ibid.; Stanley Carlson-Thies, “Hidden Restriction on Faith-Based Organizations in VAWA Reauthorization,” Institutional Religious Freedom Alliance, March 1, 2013, http://archive.constantcontact.com/fs102/1102433538532/archive/1112621605398.html#LETTER.BLOCK8.

[5] See, e.g., Thomas Messner, “ADF Seeks Supreme Court Review for Christian Student Groups,” The Heritage Foundation, The Foundry, December 22, 2011, http://blog.heritage.org/2011/12/22/adf-seeks-supreme-court-review-for-christian-student-groups/; Sarah Torre, “Vanderbilt’s ‘Tolerance’ Policy Forces Christian Groups off Campus,” The Heritage Foundation, The Foundry, April 5, 2012, http://blog.heritage.org/2012/04/05/vanderbilts-tolerance-policy-forces-christian-groups-off-campus/.

[6] Thomas Messner, “Same-Sex Marriage and the Threat to Religious Liberty,” Heritage Foundation Backgrounder No. 2201, October 30, 2008, http://www.heritage.org/research/reports/2008/10/same-sex-marriage-and-the-threat-to-religious-liberty.

[7] Ibid. 

[8] Thomas Messner, “Same-Sex Marriage and Threats to Religious Freedom: How Nondiscrimination Laws Factor In,” Heritage FoundationBackgrounder No. 2589, July 29, 2011, http://www.heritage.org/research/reports/2011/07/same-sex-marriage-and-threats-to-religious-freedom-how-nondiscrimination-laws-factor-in.

[9] Ibid.

[10] Thomas M. Messner, “The Price of Prop 8,” Heritage Foundation Backgrounder No. 2328, October 22, 2009, http://www.heritage.org/research/reports/2009/10/the-price-of-prop-8.

[11] Torre, “Vanderbilt’s ‘Tolerance’ Policy”; Kim Colby, “Statement of Kimberlee Wood Colby, Senior Counsel Center for Law and Religious Freedom of the Christian Legal Society,” written statement for United States Commission on Civil Rights, hearing on “Peaceful Coexistence? Reconciling Non-discrimination Principles with Civil Liberties,” March 22, 2013, https://www.clsnet.org/document.doc?id=466.

[12] Thomas M. Messner, “From Culture Wars to Conscience Wars: Emerging Threats to Conscience,” Heritage Foundation, Backgrounder No. 2543, April 13, 2011, http://www.heritage.org/research/reports/2011/04/from-culture-wars-to-conscience-wars-emerging-threats-to-conscience; David S. Addington, “Why Does the Illinois Government Oppose the Religious Liberty of Pharmacists,” Heritage Foundation WebMemo No. 3217, April 7, 2011,http://www.heritage.org/research/reports/2011/04/why-does-the-illinois-government-oppose-the-religious-liberty-of-pharmacists.

[13] Ibid.

[14] Messner, “Same-Sex Marriage and Threats to Religious Freedom: How Nondiscrimination Laws Factor In.”

[15] Messner, “Culture wars to Conscience Wars”; Derrick Morgan, “The Intolerant ‘New Tolerance,’” Heritage Foundation Commentary, August 21, 2012, http://www.heritage.org/research/commentary/2012/08/the-intolerant-new-tolerance.

[16] Kim Colby, “Statement of Kimberlee Wood Colby.”

[17] Messner, “Culture Wars to Conscience Wars.”

[18] Ibid.

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