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Culture Q&A

Gail Heriot

A precarious coexistence

The religious liberty disconnect between policymakers and the people

A precarious coexistence

Gail Heriot (Greg Schneider/Genesis)

The U.S. Commission on Civil Rights recently released a report titled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. Religious liberty advocates say the report’s findings and recommendations do not propose “peaceful coexistence” but instead say “nondiscrimination” is more important than religious freedom.

Commission member Gail Heriot, though, disagrees with the commissioners’ majority. In her rebuttal statement she wrote: “I wish the Commission had refrained from attaching these findings and recommendations. They were adopted without sufficient reflection and without sufficient appreciation for the complexities of the issues that are presented.” Heriot, a law professor at the University of San Diego, told me more about the precarious state of religious liberty in America.

For our readers who might not have read the recent U.S. Commission on Civil Rights report, tell us what it means for the average citizen. The report, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties, is about religious liberties. The report revealed disagreement among policymakers concerning the conflict between anti-discrimination laws and religious faith—for example, when bakery owners don’t want to participate in same-sex marriage. The report’s findings and recommendations had little nuance or respect for religious liberty.

Who uses this report and in what capacity? Basically, how far a reach does this report have? The report doesn’t carry the force of law and proposes no particular legislation. It’s only as significant as it is persuasive.

How has the rhetoric regarding religious liberty changed within the commission itself since you joined it in 2007? What’s been the impact of Obama’s appointments? When I joined the commission in 2007, it was majority conservative. Later it split 4-4. But then President Obama made four appointments. Now six members lean left-of-center, and two lean conservative.

Were the divisions among the commissioners clear from the start? No, it wasn’t until reading the report’s findings and recommendations that I realized just how big the division is between the left and the right on religious liberty issues. Commissioner Peter Kirsanow and I were not part of drafting the findings and recommendations. The other commissioners knew they had their six votes, so they did not need ours.

What was your thought process when you first read the report’s draft and your colleagues’ statements? I was shocked. I expected the language to be much more temperate. Chairman Martin Castro only wrote two paragraphs for his statement, but they were very troubling paragraphs. I considered asking him to withdraw it because it’s so one-sided. Chairman Castro is a gentleman, but I believe he lives in a bubble: He’s surrounded by people who agree with him on these issues. He divides the world into bad guys and good guys, and people of faith are the bad guys in his world.

Just let me read his statement to you, to show you how intemperate it is: “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.” That’s just his first paragraph.

Let’s consider the Little Sisters of the Poor: Do people really think they’re being hypocritical in this case? That it has nothing to do with their views on the participation of abortion? These women are not just trying to save cash! To look at this issue as religious hypocrisy ... well, I’m sure that makes it look easy, but this issue is not easy.

‘Recent events—particularly with the bakery cases—show how out of touch some people are on religious liberty issues.’

You decided to go ahead with releasing the report, despite your misgivings. Why? I think it’s important that Americans—especially people of faith—understand what someone of influence believes.

And as you’ve mentioned, the commission doesn’t represent the views of the people of America. Yes, I think there’s a clear disconnect between Americans and policymakers. Recent events—particularly with the bakery cases—show how out of touch some people are on religious liberty issues. When people who care deeply about religious liberty look at a report like this one, they will think—rightly—that it vastly oversimplifies the issue.

My colleagues did not give religious liberty the attention that it needs. They just plunged forward with their agenda. One thing I find most troubling about the report is that it considers anti-discrimination laws to be pre-eminent in American law. The report doesn’t say that religious liberty is not pre-eminent, but they never say that it is.

Why does that trouble you? Because our country’s history makes the opposite argument. Many people came to this country for religious liberty. The First Amendment—first because it was first on the minds of many people—guarantees not just freedom of speech, but free exercise of religion. That’s still important in the mind of many Americans.

In your statement, you discussed how religious freedom also benefits minority religions. Oh, yes. The Religious Freedom Restoration Act (RFRA), which ensures that interests in religious freedom are protected, disproportionately protects minority religions because their members don’t have much political clout. Anyone who thinks that laws like RFRA primarily protect Christians is not really considering the full picture.

People from Canada and Europe sent in written comments to the commission that generally supported religious exemptions and the right of religious institutions to direct their own affairs. Why would non-Americans take an interest in religious liberty in America? That’s indicative of America’s place in the world. People understand that this is the last best chance for religious liberty. If America fails to live up to that ideal, then how can we expect other places in the world to do so?

On the 50th anniversary of the commission in 2007, you testified to the value of the agency. You said, “If the value of a federal agency could be calculated on a per-dollar basis, it would not surprise me to find the Commission on Civil Rights to be among the best investments Congress ever made.” (Laughs) I was a lot more optimistic in those days! I think the commission is capable of doing useful work, but some reports leave something to be desired. These days, I like to stay out of the issue of whether the commission should continue. I’ll leave that up to Congress.

What’s the feedback to the report been like? I’ve gotten a lot of feedback—much more than I usually get. Law professors around the world have read it. I also got an email from a woman who wants to know what people of faith can do to protect religious liberty.

How would you respond to that woman? The most important thing is to not stop talking about religious liberties. I think people of faith typically don’t want to get in other people’s faces, and yes, we don’t want to be confrontational. But we shouldn’t be silent. Chairman Castro is accusing people of faith of being hypocrites. It’s important that we not be hypocrites.

Have you gotten any emails from liberals who say something like, “Hey, you actually make some sense?” (Long pause) Alas, no.