A prominent member of the U.S. Senate is blasting the Obama administration’s U.S. Commission on Civil Rights for making the claim that “nondiscrimination” laws should trump the First Amendment’s protections for free exercise of religion.
And Sen. Orrin Hatch, R-Utah, tells the commission that he’s very troubled by what appears to be a complete lack of understanding about religious rights in America.
“A majority of the commission appears to believe that, in all but the narrowest of circumstances, the civil right to freedom from discrimination trumps the constitutional right to freely exercise religion,” he charged on Friday. “In embracing this position, however, the report adopts a stunted and distorted version of religious liberty, suggesting that claims of religious conscience are little more than a cloak for bigotry and hatred. I reject the false picture of religious liberty presented in the report.
“The report also fails properly to account for the primacy of religious liberty in our nation’s history, founding principles, and legal commitments. Remarkably, the report’s title does not even mention the term ‘religious liberty,’ but rather subsumes it as one of a number of ‘civil liberties’ that, one supposes, are of varying significance.”
He continued, “Indeed, I cannot find any discussion in the report of the central status that religious liberty has always had in American society and law. James Madison identified the free exercise of religion according to conviction and conscience as an inalienable right. He further explained that religious exercise ‘is precedent, both in order of time and in degree of obligation, to the claims of civil society.’ As Supreme Court Justice Arthur Goldberg wrote, to America’s founders, religious liberty was preeminent among fundamental rights. More recently, the Congress of the United States unanimously declared in the International Religious Freedom Act that religious liberty ‘undergirds the very origin and existence of the United States.’
“Finally, I am troubled by the anti-religious sentiments in several of the supplementary statements in the report. In one statement, you say that religious liberty has become a ‘code word’ for ‘discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy,’ and other forms of ‘intolerance.’ You then tie contemporary religious liberty claims to the shameful legacy of slavery and Jim Crow. This is false equivalence in the extreme. Today’s sincere believers are not seeking to subjugate vast swaths of fellow Americans beneath the rod of government oppression. Rather, they are seeking room to live out their faith in a society that is fast abandoning traditional views on marriage and sexuality.”
The commission’s recent report made the stunning claim that the nation should codify into law the Obama administration’s longtime belief that Christians and others of faith can be forced to violate their beliefs to accommodate pro-homosexual or pro-transgender “nondiscrimination” laws.
The practice already has targeted bakers, photographers, calligraphers, venue owners and more.
WND has reported several times on the Obama effort to turn the Constitution’s protections for “freedom of religion” into the seemingly innocuous “freedom of worship.”
Rafael Cruz, the father of one-time GOP presidential candidate Sen. Ted Cruz, warned that Cuba, even at its most repressive, claimed to allow “freedom of worship.”
The author of the book “A Time for Action: Empowering the Faithful to Reclaim America” contends such an interpretation of the Constitution would be devastating for America.
“Most Christians don’t realize the danger of freedom of worship,” Rafael Cruz said in an interview on “Hagee Hotline” with pastor Matthew Hagee. “Freedom of worship is not the same as freedom of religion. Every communist country around the world has freedom of worship. What freedom of worship means is you can worship inside a house of worship.”
Democratic Party presidential nominee Hillary Clinton is on record insisting that to protect “gay” rights, “deep-seated cultural codes, religious beliefs and structural biases have to be changed.”
The report from the U.S. Commission on Civil Rights moves pointedly that direction, even lamenting that the Constitution limits governmental burdens on religion.
The agency’s recent report, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” gets immediately to the point.
Religion ‘infringes’ on civil rights
On the first of 306 pages, the “letter of transmittal” to Barack Obama states, “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.”
It says the fault lies with the First Amendment’s Establishment Clause, which “constricts the ability of government actors to curtail private citizens’ rights to the protections of nondiscrimination laws and policies.”
“Although the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act … limit the ability of government actors to impede individuals from practicing their religious beliefs, religious exemptions from nondiscrimination laws and policies must be weighed carefully and defined narrowly on a fact-specific basis,” states the letter.
The letter, based on hundreds of pages of arguments compiled for the past three years, says the commission believes “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 commission says RFRA “protects only religious practitioners; First Amendment free exercise rights, and it does not limit others’ freedom from government-imposed religious limitations under the Establishment Clause.”
Hatch’s letter was addressed to the chairman of the commission, and he told commissioners they hadn’t even reached the starting point, which would include “an honest consideration of each side of the scale.”
He charged that the report “appears to make every effort to confine, narrow, and limit religious liberty. It would have religious liberty apply to belief but not behavior, to be exercised individually in private rather than collectively in public.”
And he accuses the commissioners of placing “the constitutional right to freedom of religion” in the “back seat to policies identified in statute and regulation. I cannot think of another context in which advocates seriously assert those priorities.”
What the commission really wants is that federal legislation “should be considered to clarify that RFRA creates First Amendment Free Exercise Clause rights only for individuals and religious institutions and only to the extent that they do not unduly burden civil liberties and civil rights protections against status-based discrimination.”
“States with RFRA-style laws should amend those statutes to clarify that RFRA creates First Amendment Free Exercise Clause rights only for individuals and religious institutions. States with laws modeled after RFRA must guarantee that those statutes do not unduly burden civil liberties and civil rights with status-based discrimination.”
A majority of the eight-member commission, which makes recommendations but does not have the power to impose change, is lobbying for a precedent that would give homosexual or transgender rights preference over religious rights.
The commissioners deliberately chose to single out for denigration Christian colleges or organizations that don’t promote homosexuality and business owners who choose not to endorse homosexuality with their artistic talents, such as photography and cake-making.
Four of the commissioners are appointed by the president and four by Congress to six-year terms, with no more than four members allowed to be of the same political party.
However, the current commission has only one Republican member, Peter Kirsanow, and four Democrat members. Three members are “independents.”
The president also designates the chairman and vice-chairman from among the commission’s members with the concurrence of a majority of the members.
‘War on religious freedom’
The nonprofit legal group Liberty Counsel called the commission’s recommendations “a shocking example of the war against religious freedom in America.”
“The commission’s report is a shameful anti-American and anti-God document that trashes religious freedom,” said Mat Staver, founder and chairman of Liberty Counsel.
Staver charge the commission’s chairman, Democrat Martin Castro, is “out of touch with reality and with our Constitution.”
“He and the other members of the commission who agree with him want to throw out the First Amendment and trash religious freedom whenever faith and practice collides with an intolerant LGBT agenda,” Staver said. “The report is a declaration of war against religious freedom. George Washington said anyone who works against the twin pillars of religion and morality cannot be called a ‘Patriot.’ This report is un-American.”
Commissioner Kirsanow, the panel’s lone Republican, said the problem is that people are enamored with “gay rights” and “transgender rights” and are inserting their own desires into the Constitution.
“The tension between nondiscrimination and religious liberty is based on the assumption that the rights in conflict are of equal weight, or even that nondiscrimination is of greater weight,” he said. “This assumption is erroneous. Religious liberty is an undisputed constitutional right. With the exception of racial nondiscrimination principles embedded in the Thirteenth, Fourteenth, and Fifteenths Amendments, nondiscrimination principles are statutory or judicially created constructs.”
Kirsanow described the sharp differences on the commission as a “conflict between two worldviews.”
“The first, which is secularism, holds an individual’s unfettered sexual self-expression as a preeminent concern because it is an aspect of their self-creation,” he explained. “This interest in the individual is now construed as a positive responsibility to ensure that everyone has the ability to engage in sexual conduct without cost or consequence, whether in money, unwanted children, or hurt feelings.
“An individual’s sexual behavior is considered an act of self-creation and something that goes to the deepest level of their identity. Criticism of an individual’s behavior is considered an attack on the dignity of the person. Naturally, this worldview is at odds with many aspects of traditional morality grounded in sexual restraint.
“The second worldview holds that individuals are not their own judge, but rather are subject to divine law and divine judgment. The morality of a person’s conduct does not ultimately depend upon whether he thinks it is right, or whether it accords with his desires, but whether it conforms to divine law.”
He said the “rub” is that the first group does not recognize sin as sin, and the second group does.
Catholic Online and other media outlets reported what appeared to be a deliberate misdirection regarding what the Constitution requires.
Catholic Online noted that in President Obama’s June 2009 speech in Cairo, Egypt, he spoke of a Muslim America and the nation’s “freedom of religion,” but by the November 2009 memorial for the Fort Hood soldiers gunned down by a homicidal Muslim, he was terming it “freedom of worship.”
From that point, “freedom of worship” has become the term of choice, the report said.
Sarah Torre of the Heritage Foundation said the difference is significant. In practice, the “freedom to worship” seldom has been challenged or even questioned. But “freedom of religion” is under direct fire.
Just ask the New York landowners who were fined by the state for following their Christian faith regarding sponsorship of same-sex ceremonies, or the Oregon bakery owners fined $135,000 for the same thing, or the Colorado baker who is fighting for his economic future against state officials suggesting that he go out of business because his faith forbids supporting same-sex marriage.
Then there was the Ocean Grove Camp Meeting Association, established in 1869, which houses one of the world’s 20 largest pipe organs. It’s been the site of traditional and contemporary worship programs featuring speakers such as Billy Graham, Billy Sunday, D. James Kennedy and Charles Stanley.
But it’s no longer is used for weddings, because a lesbian duo was denied permission to use it, and a state discrimination complaint was filed.
The Hitching Post Wedding Chapel is facing demands from the city of Coeur d’Alene, Idaho, to perform “same-sex weddings” in violation of the owners’ Christian faith.
In Washington state, a state judge said the home, assets and savings of Arlene’s Flowers owner Barronelle Stutzman, 70, could be targeted in court by two homosexuals for whom she declined to provide wedding services.
Early in Obama’s administration, Catholic Online noted that Ashley Samelson of the Becket Fund for Religious Liberty explained that to “anyone who closely follows prominent discussion of religious freedom in the diplomatic and political arena, this linguistic shift is troubling: The reason is simple. Any person of faith knows that religious exercise is about a lot more than freedom of worship.
“It’s about the right to dress according to one’s religious dictates, to preach openly, to evangelize, to engage in the public square. Everyone knows that religious Jews keep kosher, religious Quakers don’t go to war, and religious Muslim women wear headscarves – yet ‘freedom of worship’ would protect none of these acts of faith.”
Catholic Online said: “Let’s be clear … language matters when it comes to defining freedoms and limits. A shift from freedom of religion to freedom of worship moves the dialog from the world stage into the physical confines of a church, temple, synagogue or mosque. … It … could exclude our right to raise our children in our faith, the right to religious education, literature or media, the right to raise funds or organize charitable activities and the right to express religious beliefs in the normal discourse of life.”
In just the last few months, a new “uncivil war” has erupted over state efforts to protect religious freedom.
“Gay” advocates are insisting that Americans’ religious rights must be subservient to their rights to alternative sexual lifestyles. Several states have outlined plans to protect religious rights, and the homosexual community and its corporate sponsors have erupted in rage.
Companies that denounced a recent Mississippi law protecting religious rights include MGM Resorts International, Nissan, Toyota, Tyson Foods, AT&T, IBM and Levi Strauss & Co., CNN reported.
“Bathroom bills that allow men to use the women’s restrooms and locker rooms are nonsense. A biological man should use the men’s restroom. How simple can that concept be?” said Staver. “The North Carolina law did not address employment in the private sector. The relationship between private employers and employees remains free of local government interference, and remains regulated by the state. If private companies want to provide additional policies, they are free to do so. People should read the law and stop the histrionics.”
One high-profile case is that of Jack Phillips, the baker whose Masterpiece Cakeshop in Colorado was targeted by homosexual activists over his religious beliefs, an attack then joined by the state of Colorado’s Civil Rights Commission.
He’s appealing to the U.S. Supreme Court to veto the state’s “outright compulsion of speech.”
At issue is his decision not to use his artistic talents to promote “gay marriage” at the request of two homosexuals, and the state’s subsequent decision that he has no right to control his own speech.
The petition to the high court was filed on his behalf by officials with the Alliance Defending Freedom.
“The First Amendment prohibits the government from telling private citizens ‘what they must say,'” according to the brief. “It is undisputed that the Colorado Civil Rights Commission … does not apply [the Colorado Anti-Discrimination Act] to ban (1) an African-American cake artist from refusing to create a cake promoting white-supremacism for the Aryan Nation, (2) an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists from refusing to create cakes opposing same-sex marriage for a Christian patron.
“Neither should CADA ban Jack Phillips’ polite declining to create a cake celebrating same-sex marriage on the religious grounds when he is happy to create other items for gay and lesbian clients.”
Judge boasts of being homosexual advocate
The Colorado state Supreme Court earlier, in a decision by a judge who boasts on a state website of being a homosexual-rights advocate through the Denver mayor’s “GLBT Commission” and three others, refused to intervene in the case.
The Colorado court said that Chief Justice Nancy Rice and Justice Nathan Coats would have reviewed the case because of the important questions it raises. But four other justices, including Monica Marquiz, who boasts of winning the Colorado GLBT Bar Association’s 2009 Outstanding GLBT Attorney Award, joined with a growing social movement that insists homosexual rights trump the religious rights protected by the Constitution.
All four declined to respond to WND requests for comment.
They left standing a lower court opinion forcing Phillips and his staff to create cakes for same-sex celebrations in violation of their religion faith. The lower court ruling also ordered a re-education program for Phillips and his staff.
“No one – not Jack or anyone else – should be forced by the government to further a message that they cannot in good conscience promote,” said ADF Senior Counsel Jeremy Tedesco. “And that’s what this case is about.
“Jack, who has happily served people of all backgrounds for years, simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message and event with which he fundamentally disagrees. We are asking the U.S. Supreme Court to ensure that government understands that its duty is to protect the people’s freedom to follow their beliefs personally and professionally, not force them to violate those beliefs as the price of earning a living.”
The ADF report noted according to a 2015 poll, 65 percent of Americans oppose penalizing wedding vendors who choose not to provide services for same-sex ceremonies on religious grounds.
Back in July 2012, Charlie Craig and David Mullins asked Phillips for a wedding cake for their same-sex ceremony. In an exchange lasting about 30 seconds, Phillips politely declined, explaining that he would gladly make them any other type of baked item they wanted but that he could not make a cake promoting a same-sex ceremony because of his faith, ADF reported.
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They filed a complaint with the Colorado Civil Rights Commission, which eventually ruled against Phillips, even though the same-sex duo was easily able to obtain their desired rainbow-themed cake for free from another nearby cake artist.
Orders to carry state’s message
The state’s ultimate order to Phillips “violates one of the Free Speech Clause’s essential rules: the government cannot compel a private citizen ‘to utter what is not in his mind,'” the brief charges.
“Given the exceptions to CADA that state authorities have recognized for other cake artists, including three secular cake artists who refused to create custom cakes criticizing same-sex marriage on religious grounds, the commission’s application of CADA additionally targets Phillips’ religious beliefs about marriage for punishment in violatin of the Free Exercise Clause,” the petition, nearly 400 pages long, says.
“This court’s review is needed to alleviate the stark choice Colorado offers to those who, like Phillips, earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment.”
Colorado’s governmental conclusion not only “turns the compelled speech doctrine on its head,” it also conflicts with the Supreme Court’s free speech precedent and creates a conflict with other appeals court rulings.
The petition explains that Colorado treats Christians with less respect than those with other beliefs.
“By deeming Phillips’ religious reasons for declining to create a custom cake to be of less importance than those of other cake artists, the commission ‘singled out’ Phillips’ religious practice for ‘discriminatory treatment,'” the brief states.
In fact, the state of Colorado actually moved beyond judicial activism to expressing “hostility” to Christians, it alleges.
Such hostility was apparent during the proceedings in Phillips’ case. One commission member summarized the commission’s logic during the course of an administrative hearing, as follows:
I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.
That was from commission member Diann Rice.
Hear a recording of Rice’s statement:
State adjudicators then agreed with the commission’s intent to penalize Phillips, even though an administrative law judge’s findings, which have been undisputed throughout the case, documented Phillips’ consistent business policy based on his religious beliefs.
The judge, at the time, found:
- “Phillips has been a Christian for approximately 35 years, and believes in Jesus Christ as his Lord and savior. As a Christian, Phillips’ main goal in life is to be obedient to Jesus and His teachings in all aspects of his life.”
- “Based on the teachings of the Bible, Phillips ‘believes … that God’s intention for marriage is the union of one man and one woman.'”
- “Phillips ‘believes that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way.'”
- “Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents.”
- “Phillips ‘believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.'”
- “Phillips ‘advised’ the mother of one of the persons in the same-sex couple ‘that he does not create wedding cakes for same-sex weddings because of his religious beliefs, and because Colorado does not recognize same-sex marriages.'”
“This is not about the people who asked for a cake, it’s about the message the cake communicates,” added ADF-allied attorney Nicolle Martin of Lakewood, who is serving as co-counsel in the case. “No artist should be punished for declining to promote ideas or participate in events when they disagree with the message communicated.”
See a video about the case:
When Colorado’s Supreme Court failed to uphold Phillips’ speech rights, Rice and Coats noted the issues that need to be reviewed include whether the Colorado Anti-Discrimination Act (CADA) “requires Phillips to create artistic expression that contravenes his religious beliefs about marriage,” whether “applying CADA to force Phillips to create artistic expression that contravenes his religious beliefs about marriage violates his free speech rights under the United States and Colorado Constitutions” and whether “applying CADA to force Phillips to create artistic expression that violates his religious beliefs about marriage infringes his free exercise rights under the United States and Colorado Constitutions.”
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The ADF has explained the case: “Phillips … honors God through his creative work by declining to use his artistic talents to design and create cakes that violate his religious beliefs. This includes cakes with offensive written messages and cakes celebrating events or ideas that violate his beliefs, including cakes celebrating Halloween, anti-American or anti-family themes, atheism, racism, or indecency.
“He also will not create cakes with hateful, vulgar, or profane messages, or sell any products containing alcohol. … Consistent with this longtime practice, Phillips also will not create cakes celebrating any marriage that is contrary to biblical teaching.”
WND earlier this year reported on two ominous court decisions regarding religious liberty.
The first was when the U.S. Supreme Court left standing a lower court decision that Washington state pharmacists who are Christian must violate their faith in order to practice their profession. The second decision came from a federal judge in Mississippi with a reputation for ruling against Christians who said county clerks in the state must violate their faith to hold office.
The Supreme Court’s move alarmed Justice Samuel Alito, who warned there was evidence that the “impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the state.”
In the Mississippi ruling from Judge Carlton Reeves, who once punished a school district for allowing a voluntary prayer at an optional awards ceremony, said clerks in the state cannot cite their religious beliefs to excuse themselves from issuing marriage licenses to homosexual duos.
It was the case involving the pharmacists that drew outrage from a minority on the Supreme Court. Washington state adopted rules forcing pharmacists to sell abortion pills to customers regardless of religious beliefs that consider abortion tantamount to murder.
The state provided no exception for religious beliefs and refused to allow an accommodation that would simply allow pharmacists with abortion objections to refer customers to another location.
After the Supreme Court refused to even review the case, Senior Counsel Kristen Waggoner of the Alliance Defending Freedom said all Americans “should be free to peacefully live and work consistent with their faith without fear of unjust punishment, and no one should be forced to participate in the taking of human life.”
“We had hoped that the U.S. Supreme Court would take this opportunity to reaffirm these long-held principles,” she said.
Waggoner noted the state of Washington “allows pharmacists to refer customers for just about any reason – except reasons of conscience.”
“Singling out people of faith and denying them the same freedom to refer is a violation of federal law. All 49 other states allow conscience-based referrals, which are fully supported by the American Pharmacists Association, the Washington Pharmacy Association, and 36 other pharmacy associations. Not one customer in Washington has been denied timely access to any drug due to a religious objection. As the trial court found, the government designed its law for the ‘primary – if not sole – purpose’ of targeting religious health care providers. We are disappointed that the high court didn’t take this case and uphold the trial court’s finding.”
Alito, whose concerns were endorsed by Chief Justice John Roberts and Justice Clarence Thomas, said the case is “an ominous sign.”
“At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications,” the three agreed.
“There are strong reasons to doubt whether the regulations were adopted for – or that they actually serve – any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the state.
“Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this court does not deem the case worthy of our time,” Alito wrote.
“If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern…. Ralph’s [pharmacy] has raised more than ‘slight suspicion’ that the rules challenged here reflect antipathy toward religious beliefs that do not accord with the views of those holding the levers of government power. I would grant certiorari to ensure that Washington’s novel and concededly unnecessary burden on religious objectors does not trample on fundamental rights.”