Legal experts advocated the importance of religious freedom for the good of society, even in the face of anti-discrimination laws, at a recent briefing before the U.S. Commission on Civil Rights.
“The genius of the First Amendment is that it protects everyone’s free speech, no matter how unpopular, and everyone’s religious beliefs, no matter how unfashionable” said Kim Colby, who serves as senior counsel for the Center for Law and Religious Freedom.
The March 22 briefing was held in Washington, D.C., and focused upon court cases and policies dealing with the intersection of anti-discrimination principles and religious freedom.
The Commission on Civil Rights is also welcoming comments from the public on this subject until April 21.
Colby warned that a narrow interpretation of religious freedom, even in the face of non-discrimination policies, “threatens the pluralism at the heart of our society.”
Other panelists argued that anti-discrimination laws should be favored in legal decisions because religious freedom can allow minorities to face unfair bias.
However, Commissioner Peter Kirsanow noted that discrimination exists naturally “on a variety of issues” in daily life and the legal system, as certain groups, individuals and behaviors are favored for various reasons, many of which are legitimate.
The law should only limit discrimination if it is “insidious,” he charged.
Commissioner Todd Gaziano added that non-discrimination laws can themselves be discriminatory and unconstitutional in their wording and application.
Lori Halstead Windham, senior counsel for the Becket Fund for Religious Liberty, suggested that the balance between religious liberty and anti-discrimination “has already been struck” in cases that allow religious organizations to freely exercise their beliefs.
Most notably, in the 2012 “Hosanna-Tabor v. EEOC” decision, the U.S. Supreme Court issued a rare unanimous ruling holding that the government cannot determine who qualifies as a minister within a religious organization. Such internal affairs are decisions that the religious organization itself is entitled to make, the court said.
The government’s attempt to narrowly define what qualifies as a religion has also drawn concern with the announcement of a federal mandate requiring employers to offer health insurance that includes contraception and related products. The government has denied a religious exemption to many soup kitchens, hospitals and other organizations, arguing that they are not religious enough to qualify for one.
Windham warned that further encroachment upon the free exercise of religion risks reducing religious organizations to no more than “labor unions or social clubs.”
“To say that religious exercise has no unique freedoms, that religious bodies are accorded no special rights of their own, is to plunge our government into the business of regulating religious belief,” she added.
Instead being forced into opposition, she said, religious liberty and anti-discrimination efforts should work together.
“Despite the occasional hard case, the answer is not to pit religious freedom against anti-discrimination norms, but to recognize that supporting religious freedom promotes diversity,” Windham explained.
“It allows opposing viewpoints to thrive, dissenting voices to call our leaders to account and religiously inspired people to bring about social change.”
These benefits are important both within American history and to the future of a free society, she stressed.
“When we allow those with sincere religious beliefs to live their faith – even if it requires an exemption from otherwise applicable laws – our nation is richer for it,” said Windham.
“Religious minorities are protected, and religious groups are free to serve their communities and our nation.”