Religious Freedom: A Civil-Rights Issue

by Kathryn Jean Lopez

Our friend (and frequent Corner contributor) Peter Kirsanow serves on the U.S. Commission on Civil Rights, which recently turned its focus to religious freedom in the United States. Peter talks to National Review Online about what the commission learned, in advance of a report.


KATHRYN JEAN LOPEZ: The U.S. Commission on Civil Rights recently held hearings on and took comments about religious freedom in the U.S. What made it a commission priority? How is religious freedom a civil-rights issue today?

PETER KIRSANOW: Initially, there were two significant reasons for holding hearings on religious freedom: 1) A startling number of reports regarding alleged suppression of religious expression, as well as religious student groups being denied official recognition from universities unless the groups adhered to non-discrimination policies that conflicted with their religious beliefs, and 2) The Supreme Court’s decision in Hosanna-Tabor regarding religious groups’ right to select their own ministers. Shortly after the commission approved the hearing topic, the Department of Health and Human Services announced its contraception/abortifacient mandate. That propelled interest in the topic enormously.

In many respects, religious freedom has always been a civil-rights issue. It’s perhaps unique among civil-rights issues in that it was the impetus for many of the first American colonists to risk their lives to settle in the New World. That’s something that’s in our national DNA.  But over the last few decades there’s been a creeping erosion of our religious freedoms. The United States is rapidly imitating Western Europe and becoming a more secular society. People with no religious affiliation are now approximately 16 percent of the U.S. population, and the percentage is higher among Millennials. As some commentators have pointed out, it’s questionable whether those who have no religious affiliation of their own will prioritize religious liberty. And as we’ve seen in Western Europe, when a society loses its faith it may not simply become apathetic toward religion, it may become actively hostile toward religion and religious believers. That’s what we’re seeing with universities, with the HHS mandate, and with the IRS investigations of pro-life organizations. For many secularists, same-sex marriage, abortion, access to free contraception, etc., take priority over conflicting religious beliefs. This conflict is becoming more widespread and heated.

LOPEZ: What did you learn?

KIRSANOW: One thing that I learned is that, unfortunately, there’s not a great deal of common ground between the two sides. In most cases — not all, but most — our panelists had conflicting ultimate commitments. Both sides were approaching these problems within the framework of the Constitution. However, their preexisting commitments — on the one side, to religious freedom, on the other to what they consider nondiscrimination (which includes same-sex marriage, employer-provided contraception, and limits on a religious group’s ability to hire and fire ministers) meant that there wasn’t a great deal of common ground.

I also learned that there’s increasing hostility toward the religious — particularly, but not limited to, Catholics — who are seen as nettlesome impediments to an expanding benevolent state.

LOPEZ: How many comments were submitted? What did they look like? Was this the usual volume or did the volume suggest an urgency to people’s concerns?

KIRSANOW: We received approximately 160 public comments. Although this wasn’t the largest number of public comments the Commission has received in its 56-year history, it’s close; and, more important, the quality and length of the comments were unprecedented.  Many of the comments were similar to treatises and appellate briefs — we’d not seen anything like it before. We received numerous comments from university students who’ve been pressured to jettison religious requirements in order to comply with university mandates. We also received comments from Archbishop Charles Chaput, Bishop Thomas Paprocki, the Lutheran Church-Missouri Synod, Dr. Richard Land of the Southern Baptist Convention, Robby George of Princeton and Harvard, NRO-nik David French, Daniel Philpott of Notre Dame, Roger Trigg of Oxford, and Douglas Farrow of McGill, among others.

There were also many groups and institutions that submitted comments, including the Becket Fund, the American Center for Law and Justice, InterVarsity Christian Fellowship, Cru (perhaps better known as Campus Crusade for Christ), Alliance Defending Freedom, the Heritage Foundation, the Chaplain Alliance for Religious Liberty, the Bioethics Defense Fund, Belmont Abbey College, Franciscan University of Steubenville, the Institutional Religious Freedom Alliance, and Kairos. All of these contributors are experts on this topic. The fact that they took the time to submit comments indicates the seriousness with which they view the state of religious freedom in the United States. Several contributors, including Roger Trigg, Paul Coleman, and Gudrun Kugler, submitted comments discussing what has happened in Britain and Europe when antidiscrimination norms collide with religious freedom.

LOPEZ: Could there be a watershed moment coming? Or is that wishful thinking?

KIRSANOW: The real question is, “A watershed for which side?” As Mark Steyn likes to point out, the future belongs to those who are around to see it. The Millennials are our least religious generation ever, and the trendlines point to even greater secularization.

Also, the growth of government tends to push religion out of the public square. In a nation with a smaller government and a healthier culture, the protection of religious freedom would depend less on political outcomes. Nonetheless, it’s plain from the responses we’ve seen that the HHS mandate may have been a tipping point.

LOPEZ: Did commenters express concern about overreach of nondiscrimination laws?

KIRSANOW: Absolutely. Scores did.  In fact, I’ve never seen such alarm about governmental overreach during my twelve-year tenure on the Commission. For example, students expressed concerns about the antidiscrimination rules in place at some universities that prohibit religious groups from requiring their leaders to sign a statement of faith or adhere to certain moral codes. Bishop Paprocki wrote about the nondiscrimination requirements in the Illinois civil-union law that drove Catholic Charities out of the foster and adoption business. Alliance Defending Freedom submitted a comment that detailed many incidents where small businesses were penalized by the state for exercising their religious freedom. The examples were endless.

LOPEZ: Did you hear from anyone who felt burdened or victimized by a nondiscrimination law?

KIRSANOW: Yes. A few random examples:  We received comments from the Lutheran Church–Missouri Synod, which was the church involved in the Hosanna-Tabor litigation. We also received comments from Bishop Thomas Paprocki of Springfield regarding Illinois’s establishment of civil unions. This resulted in Catholic Charities’ being forced to stop providing foster-care and adoption services in Illinois, which it had been doing for 40 years. We received many comments from students who are members of religious groups that were either derecognized or threatened with derecognition by their schools. Derecognition is almost a death knell for student organizations, because that often means they’re barred from participating in student-organization fairs where they can recruit new members; they aren’t allowed to reserve rooms for on-campus meetings; and they lose other benefits.

LOPEZ: Are nondiscrimination laws where the greatest threat is?

KIRSANOW: It’s among a number of threats. The general decline of religiosity in Western society, including (but not limited to) church attendance and raising one’s children in a given religion, is perhaps a greater threat. There are, quite simply, fewer people vigilant against threats to religious freedom.

Another of the greatest threats is the hostility to traditional religion manifested by cultural tastemakers. You notice I didn’t say, “elites.” The reason for that is that, contrary to popular perception, religious commitment and church attendance have remained stronger among the more affluent members of society than among the less affluent, among whom religiosity has collapsed (Charles Murray discusses this in detail in Coming Apart). However, cultural tastemakers persistently minimize or denigrate traditional religion, religious believers, and most especially traditional moral beliefs. The president is a tastemaker, and he, of course, infamously referred to people bitterly clinging to their guns and religion. Television shows and movies routinely portray traditional Christians and Jews as fanatics or loons. Even when not specifically addressing religion, popular culture simply sets a tone where certain behaviors antithetical to religious tenets are considered acceptable and unremarkable.

In short, unbalanced, blunderbuss “nondiscrimination” laws are a threat, but not more so than a larger cultural decay.

LOPEZ: As a lawyer, what do you make of the current state of religious freedom vis-à-vis the HHS mandate? Cases have been thrown out. And crippling fines haven’t been issued for noncompliance yet. What do you make of that?

KIRSANOW: We’ve had some encouraging preliminary results but we’ve got a ways to go. As you’ve written many times, HHS has refused to make a meaningful accommodation for religious groups in regard to the mandate. At this point, it’s simply a matter of how it’s enforced.

Ultimately, the Supreme Court will have to rule on the question. It seems possible that the administration may not enforce the mandate to its fullest extent until after the Supreme Court takes the case and issues a decision. If HHS fully enforces the mandate and issues fines, and, say, a Catholic university has to end its football program or a Hobby Lobby goes bankrupt right before the Supreme Court hears the case, the Supreme Court would be facing a situation where the harms are extreme and tangible. If the administration doesn’t fully enforce the mandate immediately, the harms would still largely be speculative. It would make sense for the administration to limit the fallout until they can get the blessing of the Supreme Court.

LOPEZ: Do you have any hope that religious freedom can come out from the rhetorical shadows? The concerns always seem lost in rhetoric about birth control, freedom, equality, and tolerance?

KIRSANOW: It will come out of the rhetorical shadows only if religious people speak out. Tough to do when the state, the media, the academy, and popular culture often seem hostile. But it’s unwise to underestimate people who actually believe in something beyond the temporal.


LOPEZ: From the vantage point of a Civil Rights Commissioner, have we lost all sense of the meaning of those words?

KIRSANOW: Unquestionably. Political correctness has eroded, if not infantilized, our public discourse regarding freedom, equality, and tolerance. It sometimes seems those concepts go only in one direction — one opposite their original meaning.


LOPEZ: Are the expansion of same-sex marriage and the coming Supreme Court rulings on DOMA and Prop 8 potential threats to religious liberty?

KIRSANOWUndoubtedly. Ed Whelan, Robby George and others have pointed out myriad reasons why this is so, but let me sketch just one. As same-sex marriage becomes more common, it will become less and less acceptable to hold the traditional religious view that marriage is only between one man and one woman. It also means that people who are opposed to same-sex marriage based on their religious beliefs can be accused of marital-status discrimination in addition to sexual-orientation discrimination. Such individuals will increasingly be required to check their religious beliefs at the entrance to the public square — and with an ever expanding public square, that means confining religious practice to the home and house of worship.


LOPEZ: When will we hear more from the Commission on this?

KIRSANOW: We’ll be issuing a report in the coming months. 

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