Thursday, September 15, 2016

USCCR: Nondiscrimination Principles and Civil Liberties

The United States Commission on Civil Rights has issued a 306 page report titled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. Among their findings after hearing expert testimony:
  • 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.
  • The First Amendment’s Establishment Clause constricts the ability of government actors to curtail private citizens’ rights to the protections of non-discrimination laws and policies. Although the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) limit the ability of government actors to impede individuals from practicing their religious beliefs, religious exemptions from non- discrimination laws and policies must be weighed carefully and defined narrowly on a fact-specific basis.
  • 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.
  • Threats to civil liberties, cloaked as “religious freedom” protection bills, are emerging in dozens of states and localities across the nation. In 2015, twenty-eight state legislatures were already considering more than eighty-five anti- LGBT bills by mid-March.5 By early 2016, approximately two dozen state legislatures were considering at least that many bills which aim to limit Americans’ access to marriage rights, other government services, commercial services, health care services, adoption and foster care services, and other aspects of daily life based upon “religious exemption.”6 Some of these far- reaching proposals specifically target nondiscrimination protections for lesbian, gay, bisexual, and transgender (“LGBT”) Americans and some seek to limit women’s rights to reproductive freedoms. Many proposals are moving very quickly, and advocacy groups are monitoring them on an almost-daily basis.
  • First Amendment Defense Acts purport to elevate sweeping protections for religious freedom above status-based nondiscrimination laws and policies. Observers on the left and right doubt their constitutionality.
  • Some states are attempting to limit the ability of same-sex couples to adopt and to provide foster care for children by using questionable “religious freedom” rationales.

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