Bench Memos

My Testimony on Non-Discrimination Principles Versus Civil Liberties

The U.S. Commission on Civil Rights has invited me to be a witness at a March 22 hearing entitled “Peaceful Co-Existence? Reconciling Non-Discrimination Principles with Civil Liberties.” My written testimony, which I submitted today, is available here. It concludes:

The sweeping application of non-discrimination principles poses an increasingly severe threat to civil liberties, especially to our first liberty of religious freedom. There is an urgent need to rethink when and how non-discrimination norms ought to apply and to provide robust protections for civil liberties.

The body of my testimony consists of four parts. In Part I, I set forth some general considerations that ought to guide thinking through whether and when non-discrimination principles ought to apply. In Part II, I consider the real-life case of the New Mexico photographer who was fined more than $6,600 for refusing to photograph a same-sex commitment ceremony, and I also consider a hypothetical variant. Part III discusses the Obama administration’s assaults on religious liberty. And Part IV explains how the spread of same-sex marriage would sharply exacerbate the conflict between non-discrimination principles and religious liberty.

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