Politics & Policy

Turning American Law Upside Down for the Transgendered


Our nation’s centuries-old commitment to free speech and religious liberty was already under threat. But it took men wanting to use women’s bathrooms and vice versa for the Left to truly show its hand, plainly and unequivocally declaring that American legal traditions should be set ablaze.

Yesterday, the U.S. Commission on Civil Rights published a “Statement Condemning Recent State Laws and Pending Proposals Targeting the Lesbian, Gay, Bisexual, and Transgender Community” — a statement motivated by new Mississippi laws protecting religious freedom and by North Carolina’s much-discussed “bathroom law.” The Commission claims that any law requiring men and women to use bathrooms that correspond to their biological sex “jeopardizes not only the dignity, but also the actual physical safety, of transgender people whose appearances may not match societal expectations of the sex specified on their identification documents.”

While this is standard leftist rhetoric — notice it omits any concern for women and girls who will be exposed to male nudity and could be rendered more vulnerable to sexual predators — what follows is perhaps the clearest and most unequivocal statement of radical progressive legal philosophy I’ve ever read. It articulates three principles that, taken together, would render religious liberty permanently subordinate to the interests and demands of LGBT activists:

  • Civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, and policies, are of preeminent importance in American jurisprudence.
  • Religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon these civil rights.
  • Overly broad religious exemptions unduly burden nondiscrimination laws and policies. Federal and state courts, lawmakers, and policy-makers at every level must tailor religious exceptions to civil liberties and civil rights protections as narrowly as applicable law requires.

The first bullet point is breathtaking in scope, taking the concept of “nondiscrimination” and establishing it as a form of super law, in a “preeminent” jurisprudential position above even the enumerated liberties of the First Amendment.

#share#The next point makes the preposterous claim that religious liberty “significantly” infringes on civil rights. Such a contention is only credible if the commission would concoct a “civil right” to force a Christian baker to help celebrate a gay wedding, or if a “civil right” for a gay couple to work with Christian adoption agencies, or a “civil right” for a lesbian woman to lead a Christian organization.

EDITORIAL: Capitulation on Religious-Liberty Laws Is Shameful and Shortsighted

None of these alleged civil rights have previously existed in American law. Instead, they represent coercion, pure and simple — the destruction of the civil rights of the faithful for the sake of the convenience of the radicals. After all, not one of these despised religious exemptions actually deprives an LGBT person of the right to marry or adopt or form their own religious organization.

The last bullet is the final twist of the knife. Since our nation’s founding, religious freedom has been deemed so vital to the health of our democracy that lawmakers and judges have often attempted to make sure that state actions are “narrowly tailored” when those actions conflict with religious freedom. Now the Left wants liberty to be narrowly tailored when it conflicts with the new nondiscrimination regime.

#related#In the Commission’s eyes, there is no true accommodation of religion, because religion is merely an “excuse” for discrimination. Thus, there is no value in attempting to build a society where religious believers can live with integrity and — yes — “dignity” alongside sexual revolutionaries. But accommodation and mutual respect have never been the revolutionaries’ aim. Their goal is clear and explicit: to equate sincere religious objections to sexual immorality with the invidious discrimination of Jim Crow, and then to banish believers to the same margins of society currently occupied by white supremacists.

Indeed, Commission chairman Martin Castro says as much, comparing religious-freedom laws to efforts to “block racial integration,” which, of course, have “no place in our society.”

The Commission has issued a declaration of war — not just on religious liberty but also on the First Amendment writ large. After all, if the new religion of nondiscrimination is now legally “preeminent,” then every other civil liberty can be cast aside in the name of ending “transphobia.” Four centuries of American legal and cultural tradition are thus rendered less important than the “dignity” of those who demand mixed-gender bathrooms.

— David French is an attorney, and a staff writer at National Review.


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