SEPTEMBER 2016

BRIEFING

REPORT

PEACEFUL COEXISTENCE:

RECONCILING NONDISCRIMINATION PRINCIPLES

WITH CIVIL LIBERTIES

U.S. COMMISSION ON CIVIL RIGHTS

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Official Business

Penalty for Private Use $300

Visit us on the Web: www.usccr.gov
U.S. COMMISSION ON CIVIL RIGHTS

The U.S. Commission on Civil Rights is an independent, 

bipartisan agency established by Congress in 1957. It is 

directed to:

• Investigate complaints alleging that citizens are 

being deprived of their right to vote by reason of their 

race, color, religion, sex, age, disability, or national 

origin, or by reason of fraudulent practices.

• Study and collect information relating to discrimination or a 

denial of equal protection of the laws under the Constitution 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Appraise federal laws and policies with respect to 

discrimination or denial of equal protection of the laws 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Serve as a national clearinghouse for information 

in respect to discrimination or denial of equal 

protection of the laws because of race, color, 

religion, sex, age, disability, or national origin.

• Submit reports, findings, and recommendations 

to the President and Congress. 

• Issue public service announcements to discourage 

discrimination or denial of equal protection of the laws.

MEMBERS OF THE COMMISSION

Martin R. Castro, Chairman

Patricia Timmons-Goodson, Vice Chair

Roberta Achtenberg

Gail L. Heriot

Peter N. Kirsanow

David Kladney

Karen K. Narasaki

Michael Yaki

Mauro A. Morales, Staff Director

U.S. Commission on Civil Rights

1331 Pennsylvania Ave NW Suite 1150

Washington, DC 20425

(202) 376-7700

www.usccr.gov

This report is available on CD/DVD in ASCII Text, Adobe PDF, and Microsoft Word 2010. 

To obtain, please call (202) 376-8128. You may download this report from www.usccr.gov.
Peaceful Coexistence: 

Reconciling 

Nondiscrimination 

Principles with Civil 

Liberties 

A Briefing Before 

The United States Commission on Civil Rights 

Held in Washington, DC 

Briefing Report 
[This page intentionally left blank] 
Letter of Transmittal 

President Barack Obama 

Vice President Joe Biden 

Speaker of the House Paul Ryan 

The United States Commission on Civil Rights (“the Commission’) is pleased to transmit our 

briefing report, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil 

Liberties. The report is also available in full on the Commission’s website at www.usccr.gov. 

The report examined the balance struck by federal courts, foremost among them the U.S. 

Supreme Court, in adjudicating claims for religious exemptions from otherwise applicable 

nondiscrimination law. 

The Commission heard testimony from experts and scholars in the field and a majority of the 

Commission made findings and recommendations. Some of those findings were that: 

1. Civil rights protections ensuring nondiscrimination, as embodied in the Constitution, 

laws, and policies, are of preeminent importance in American jurisprudence. 

2. 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. 

3. 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 nondiscrimination laws and policies must be weighed carefully and defined narrowly on a 

fact-specific basis. 

4. With regard to federal government actions, RFRA protects only First Amendment free 

exercise rights of religious practitioners and not their Establishment Clause freedoms. 

Prior to RFRA’s enactment, the U.S. Supreme Court had held in Employment Division v. 

Smith, 494 U.S. 872 (1990), that the First Amendment “had never been held to excuse [an 

individual’s religiously motivated conduct] from compliance with an otherwise valid law 

prohibiting conduct that the state is free to regulate.” This holding strengthened 

nondiscrimination laws and policies against actors who asserted religious justification for 

civil rights discrimination. RFRA now supersedes Smith as a controlling source of 

UNITED STATES COMMISSION ON CIVIL RIGHTS 

1331 Pennsylvania Ave., NW  Suite 1150  Washington, DC 20425 www.usccr.gov 
federal authority. Some states have enacted statutes modeled after RFRA which impact 

state-level nondiscrimination civil liberties and civil rights protections. 

Recommendations included: 

1. 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. 

2. 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. 

3. In the absence of controlling authority to the contrary such as a state-level, RFRA-type 

statute, the recognition of religious exemptions to nondiscrimination laws and policies 

should be made pursuant to the holdings of Employment Division v. Smith, which protect 

religious beliefs rather than conduct. 

4. 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. 

5. 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. 

The Commission is pleased to transmit its views in order to help ensure to all Americans both 

protection against discrimination and the constitutional guarantee of civil liberties. 

For the Commission, 

Martin R. Castro 

Chairman 
Table of Contents i 

Table of Contents 

Acknowledgment ........................................................................................................................... iii

EXECUTIVE SUMMARY .............................................................................................................1

DISCUSSION ..................................................................................................................................5

Viewpoint Discrimination ........................................................................................................... 9

Viewpoint Neutrality .................................................................................................................. 9

Ministerial Exemption .............................................................................................................. 13

Religious Accommodation in Employment under Title VII .................................................... 14

Federal Religious Freedom Restoration Act ............................................................................. 15

Pros and Cons As Seen By Legal Scholars ............................................................................... 17

Pro-Religious Exemption ...................................................................................................... 18

Against Religious Exemption ............................................................................................... 20

Public Comments ...................................................................................................................... 23

FINDINGS AND RECOMMENDATIONS..................................................................................25

Findings .................................................................................................................................... 25

Recommendations ..................................................................................................................... 26

COMMISSIONERS’ STATEMENTS AND REBUTTALS.........................................................29

Chairman Martin R. Castro Statement ...................................................................................... 29

Commissioners Achtenberg, Castro, Kladney, and Yaki Statement ........................................ 30

Commissioner Karen K. Narasaki Statement ........................................................................... 41

Commissioner Peter Kirsanow Statement ................................................................................ 42

Commissioner Gail Heriot Statement and Rebuttal ................................................................. 115

Commissioners Achtenberg, Castro, Kladney, Narasaki, and Yaki Rebuttal ......................... 155

Commissioner Peter Kirsanow Rebuttal ................................................................................. 167

PANELISTS’ WRITTEN STATEMENTS .................................................................................171

Alan Brownstein ..................................................................................................................... 171

Kimberlee Wood Colby .......................................................................................................... 181

Marc O. DeGirolami ............................................................................................................... 213

Leslie C. Griffin ...................................................................................................................... 218

Marci A. Hamilton .................................................................................................................. 225

Michael A. Helfand ................................................................................................................. 233

John D. Inazu .......................................................................................................................... 240
ii Peaceful Coexistence Report 

Ayesha N. Khan ...................................................................................................................... 248

Daniel Mach ............................................................................................................................ 261

Edward Whelan ....................................................................................................................... 269

Lori H. Windham .................................................................................................................... 282

PANELISTS’ BIOGRAPHIES ....................................................................................................291

Alan Brownstein ..................................................................................................................... 291

Kimberlee Wood Colby .......................................................................................................... 291

Marc O. DeGirolami ............................................................................................................... 291

Leslie C. Griffin ...................................................................................................................... 292

Marci A. Hamilton .................................................................................................................. 293

Michael Helfand ..................................................................................................................... 293

John D. Inazu .......................................................................................................................... 294

Ayesha N. Khan ...................................................................................................................... 294

Daniel Mach ............................................................................................................................ 295

Edward Whelan ....................................................................................................................... 295

Lori H. Windham .................................................................................................................... 296
Acknowledgment iii 

ACKNOWLEDGMENT 

The U.S. Commission on Civil Rights acknowledges Lenore Ostrowsky of the Office of the 

General Counsel for researching and writing this report. The Commission also acknowledges 

Professor Roderick Hills of New York University Law School, a member of the Commission’s 

New York State Advisory Committee, for his helpful editorial review of the draft. 
[This page intentionally left blank] 
Executive Summary 1 

EXECUTIVE SUMMARY 

The United States Commission on Civil Rights held a briefing on March 22, 2013, to hear the 

views of scholars and legal advocates on the scope of constitutional and statutory guarantees of 

free exercise of religion. The Commission sought to learn how best to reconcile the conflict 

which in certain cases may exist between those seeking to practice religious faith and those 

seeking compliance with or protection of nondiscrimination laws and policies. 

The main focus of the Commission’s briefing was the uncertain boundaries of religious freedom 

under the Free Exercise and Establishment Clauses of the First Amendment and under some 

federal statutes, although judicial decisions have clarified the boundaries in some areas. 

The appropriate balance between religious liberty and nondiscrimination principles in some 

conflicts arises as a concern when religious institutions and organizations claim the freedom 

under constitutional and statutory law to choose leaders, members or employees according to the 

tenets of their faith, even if the choice would violate employment, disability, or other laws. It 

arises also when individuals claim the freedom to adhere to religious principles regardless of 

otherwise applicable law governing their conduct.1

This freedom is grounded in the Free Exercise and Establishment Clauses of the First 

Amendment to the Constitution,2 federal statutes such as the Religious Freedom Restoration Act3

(RFRA), the Religious Land Use and Institutionalized Persons Act4 (RLUIPA), and common 

law. Other than statutory exemptions in federal and state RFRAs or other laws, several First 

Amendment doctrines govern such claims. One such doctrine is the ministerial exemption, a 

long-recognized doctrine5

 that allows religious organizations to determine their own teachings 

and rituals and to decide for themselves who will and will not serve as ministerial employees. 

 

1

 Notable cases involved military service. See Universal Military Training and Service Act, 50 App. U.S.C. Section 

456(g)(1) (establishing ministerial exemption from military service); see also U.S. v. Brown, 338 F.Supp. 409 (N.D. 

Ill., 1972) (mere congregation member not due selective service ministerial exemption); Dickinson v. United States, 

346 U.S. 389 (1953) (registrant working largely but not entirely as minister was entitled to ministerial exemption 

under Universal Military Training and Service Act); Gillette v. U.S., 401 U.S. 437 (1971) (conscientious objector 

provision requiring opposition to all wars based on religious belief not unconstitutional); see also Memorandum for 

Secretaries of the Military Departments Chiefs of the Military Services from Clifford L. Stanley (September 30, 

2011), available at http://www.washingtonblade.com/content/files/2011/09/Signed-Chaplains-Memo.pdf (military 

chaplains permitted but not required to perform ceremonies that are at variance with the tenets of their religion or 

beliefs). 

2

 U.S. CONST. amend. I, cl. 1. 

3

 42 U.S.C. § 2000bb et seq., Pub.L. 103-141 (2012). 

4

 42 U.S.C. § 2000cc et seq., Pub.L. 106-274 (2012). 

5 See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694, 704 (2012) (discussing history of 

religious and ministerial exceptions; held, that employment discrimination law does not apply to dismissed church 

school employee engaged in religious instruction). 
2 Peaceful Coexistence Report 

Another doctrine is the freedom of association, or expressive association, under which certain 

organizations both nonreligious and religious enjoy a First Amendment right to choose their 

leaders, associates, members and messages.6

 Assertions of such freedom are judicially 

reviewable, however, meaning that they do not operate as a bar to suit.7

The third major analytical framework that may apply is a public-forum or limited-public-forum 

free speech enquiry. This analysis examines the government’s power under state or federal law 

to control or condition speech or expressive conduct in certain public spaces, such as sidewalks, 

streets, parks, or college campuses or programs.8

The Supreme Court majority relied upon this speech doctrine in Christian Legal Society v. 

Martinez (Martinez)

9

 in affirming the University of California Hastings law school’s imposition 

of an “all-comers” policy compelling student groups seeking school recognition - and resources - 

to accept any voting member or leader regardless of views. This was the Supreme Court’s most 

important recent decision regarding the limited-public-forum doctrine.10

 

6

 The decisions in the area of associational freedom have been uneven. Compare Boy Scouts of America v. Dale, 530 

U.S. 640 (2000) (Boy Scouts of America had an associational right to bar homosexuals from serving as troop leaders 

as inconsistent with the values it seeks to instill), with Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 620, 621 (1984) 

(striking down Jaycees’ refusal to allow admission of women: “The Court has long recognized that, because the Bill 

of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of 

highly personal relationships a substantial measure of sanctuary from unjustified interference by the State . . . Factors 

that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a 

particular case may be pertinent . . . The local chapters of the Jaycees are large and basically unselective groups.”); 

see also John D. Inazu, The Unsettling “Well-Settled” Law of Freedom of Association, 43 Conn. L. Rev. 149 (2010) 

and Richard Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association 

Counts as a Human Right, 66 Stan. L. Rev. 1241, 1266 (2014). 

7 See, for example, Bob Jones University v. U.S., 461 U.S. 574 (1983) (held, the government has a compelling interest 

in eradicating racial discrimination at private colleges; this interest outweighs the burden of loss of tax-exempt status 

for such colleges); see also Romer v. Evans, 517 U.S. 620 (1996) (held, that State constitutional amendment 

precluding government protection of homosexual orientation violated Equal Protection Clause). 

8

 In recognition of the government’s power “to preserve the property under its control for the use to which it is 

lawfully dedicated,” the Court has permitted governmental restrictions on access to a limited public forum with the 

key caveat that any access restriction must be reasonable and viewpoint neutral. Cornelius v. NAACP Legal Defense 

& Ed. Fund, Inc., 473 U.S. 788, 800, 806 (1985) (internal quotation marks omitted). 

9

 Christian Legal Society v. Martinez, 561 U.S. 661 (2010). 

10 But see Widmar v. Vincent, 454 U.S. 263 (1981) (once university establishes an open public forum it must accord 

First Amendment speech rights) and Healy v. James, 408 U.S. 169 (1972) (university may not deny recognition 

based on disapproval of group’s purpose or philosophy). 
Executive Summary 3 

The application of a limited-public-forum analysis in Martinez was controversial. The Court 

upheld the law school’s denial of recognition and the related provision of resources11 to the 

Christian Legal Society (CLS or Society), a faith-based student organization, because the Society 

violated this “all-comers” policy by excluding as leaders and associates those who declined to 

affirm and adhere to the group’s religious beliefs.12

Scholars and legal advocates who agree with the Martinez Court’s application of the limited 

public forum doctrine understand that the “all comers” policy does not violate the First 

Amendment.13 In addition, some scholars argue that any exception to nondiscrimination laws is 

an unwarranted expansion of a freedom that illegitimately penalizes those whom society has 

determined to protect as most vulnerable.14 They posit that carving out exceptions from civil 

rights laws for religious groups elevates some rights over others and diminishes the equal 

standing of some in our society.15

Scholars and legal advocates disagreeing with Martinez believe that religious speech or conduct 

in school public forums is entitled to as much protection under the Constitution as secular or 

other speech or conduct that expresses a group identity, including protection of the right to 

associate with like-minded others.16 They also contend that “all comers” policies are not, in fact, 

neutral - that is, that they discriminate against certain mission-oriented associations and are not 

 

11 In this context, “recognition” means that Hastings extended official recognition to a student group through its 

“Registered Student Organization” (RSO) program. Several benefits follow from this school-approved status. RSOs 

are eligible to seek financial assistance from the Law School, which subsidizes their events using funds from a 

mandatory student-activity fee imposed on all students. RSOs may also communicate with students by placing 

announcements in a weekly Office-of-Student-Services newsletter, advertising events on designated bulletin boards, 

send e-mails using a Hastings address, and participate in an annual Student Organizations Fair designed to advance 

recruitment efforts. In addition, RSOs may apply for permission to use the Law School’s facilities for meetings and 

office space. Hastings allows officially recognized groups to use its name and logo. Student groups that lack RSO 

status do not receive these privileges. Christian Legal Society v. Martinez, 561 U.S. at 669-70. 

12 Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (appropriate test under First Amendment for public 

university campus was viewpoint-neutral/limited-public-forum enquiry; Hastings’ “all-comers” policy deemed 

viewpoint neutral and enforceable against all student groups without exception for religion). 

13 See Leslie C. Griffin, Statement, infra; Alan Brownstein, Statement, infra; Ayesha N. Khan, Statement, infra; 

Daniel Mach, Statement, infra. 

14 See Marsha B. Freeman, What’s Religion Got to Do With It? Virtually Nothing: Hosanna-Tabor and the Unbridled 

Power of the Ministerial Exemption, 16 U. Pa. J. L. & Soc. Change 133 (2013); see also Caroline Mala Corbin, 

Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law, 75 Fordham Law 

Review 1966 (2007); and Leslie C. Griffin, The Sins of Hosanna-Tabor, 88 Ind. L. J. 981 (2013). 

15 See Marci Hamilton Statement, infra. (sincerity of beliefs should be examined). 

16 See Michael Stokes Paulsen, Disaster: The Worst Religious Freedom Case in Fifty Years, 24 REGENT U. L. REV. 

283 (2012); see also Chapin Cimino, Campus Citizenship and Associational Freedom: An Aristotelian Take on the 

Nondiscrimination Puzzle, 20 WM. & MARY BILL RTS.J. 533 (2011). Some scholars argue that this should be viewed 

as the “right of a people peaceably to assemble” under the First Amendment to the Constitution. See also Inazu, 43 

Conn. L. Rev. 149, 196 (2010) (“CLS wasn’t arguing that association is nothing more than speech but that association 

is itself a form of expression - who it selects as its members and leaders communicates a message.”). 
4 Peaceful Coexistence Report 

rationally related to the government’s interests.17

Eleven scholars and legal advocates presented the Commission with a wide range of views. The 

experts were Alan Brownstein of the University of California at Davis Law School, Kimberlee 

Colby of the Christian Legal Society, Marc DeGirolami of St. John’s Law School, Leslie Griffin 

of the University of Nevada at Las Vegas Law School, Marci Hamilton of Cardozo Law School, 

Michael Helfand of Pepperdine University Law School, Ayesha Khan of Americans United for 

Separation of Church and State, Daniel Mach of the American Civil Liberties Union, Edward 

Whelan of the Ethics and Public Policy Center, and Lori Windham of the Becket Fund for 

Religious Liberty. Invited expert John D. Inazu of the Washington University Law School (St. 

Louis) was unable to attend but submitted a written statement which appears in the Panelists’ 

Statements section, infra. 

 

17 CLS’s argument on remand that “all comers” policies are a pretext for discriminating against religious groups was 

ruled not preserved. CLS v. Wu, 626 F.3d 483, 486 (2010). 
Discussion 5 

DISCUSSION 

From the beginning of our nation’s history, religious freedom has been fundamental to its 

Constitution and common law. But the law allowing religious exemptions from otherwise 

applicable laws has not followed an even course. From before the framing and ratification of the 

Constitution and continuing up to 1878, courts did recognize constitutionally based exemptions, 

but only in rare circumstances.1

 In 1878, however, the Supreme Court held that there was no 

right to a religious exemption from anti-polygamy laws2

 and other cases denying exemptions 

followed.3

Thereafter, for nearly a century, religious adherents wishing protection for religiously motivated 

conduct or actions were entitled to claim religious exemptions chiefly under statutory or 

common law rather than the Free Exercise Clause of the First Amendment,4 and the Court 

distinguished between beliefs (almost always protected) and practices based on those beliefs 

(largely unprotected).5

In 1963, however, the Warren Court adopted a constitutional standard regarding exemptions for 

religiously motivated conduct based chiefly on the Free Exercise Clause. This standard was not 

dependent on statutory or common law, and was more favorable to protecting religious exercise.6 

The case was Sherbert v. Verner,

7

 and presented the question of whether the Free Exercise 

 

1 See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. 

L. REV. 1409 (1990) (arguing that courts have insufficiently recognized that religious movements of the colonial 

period pushed for primacy of religious conscience over secular laws and that the framers chose “free exercise of 

religion” over “rights of conscience” to protect religiously motivated but not secular conscience-motivated conduct); 

see pp. 1502-13 for a discussion of early exemption cases. For a contrary view see Philip A. Hamburger, A 

Constitutional Right of Religious Exemption: An Historical Perspective, 60 GEO. WASH. L. REV. 915 (1992) 

(arguing that the early understanding of the Free Exercise Clause did not provide a constitutional right of religious 

exemption from civil laws, and as a result, exemptions have been granted in only a few circumstances). 

2

 Reynolds v. U.S., 98 U.S. 145 (1878) (bigamy unlawful despite Mormon religious views). 

3 See Prince v. Massachusetts, 321 U.S. 158 (1944) (child labor laws prevailed against minor who wanted to 

distribute religious tracts); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245 (1934) (public university's 

suspension of students refusing to serve in ROTC on religious grounds upheld); Braunfeld v. Brown, 366 U.S. 599 

(1961) (Sunday closing laws upheld against Orthodox Jews observing Saturday Sabbath). 

4

 The relevant portion of the First Amendment to the Constitution states: “Congress shall make no law respecting an 

establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I; see also Reynolds v. 

U.S., 98 U.S. 145 (1878) (Admitted Utah bigamist conforming to religious precepts ruled not exempt from criminal 

law prohibition on plural marriage, despite First Amendment). 

5 See Employment Division v. Smith, 494 U.S. 872 at 878-879 (1990) (discussing the history of Free Exercise 

precedents); see also Reynolds v. U.S., 98 U.S. 145 (1878) (upholding criminal law prohibiting polygamy; First 

Amendment not offended by criminal laws punishing conduct rather than beliefs). 

6 See http://www.firstamendmentcenter.org/free-exercise-clause for a concise history of Free Exercise law up to the 

year 2011. (Accessed Nov. 4, 2014). 

7

 Sherbert v. Verner, 374 U.S. 398 (1963). 
6 Peaceful Coexistence Report 

Clause prohibited conditioning government unemployment benefits on an applicant’s willingness 

to work on a Sabbath day, if working on a Sabbath day violated the applicant’s religious faith. 

The Court ruled that such burdens on religious exercise - even when imposed by generally 

applicable laws - had to be justified as the least restrictive way of advancing a compelling 

government interest and by showing that the government had failed to satisfy this requirement. 

Sherbert was followed by Wisconsin v. Yoder,

8

 which invalidated on First Amendment grounds 

the application of compulsory ninth- and tenth-grade school-attendance laws to the Amish whose 

religious faith dictated that young people stop formal schooling before then. Even so, those 

seeking religious conduct exemptions under the First Amendment’s Free Exercise Clause rarely 

prevailed.9

 By contrast, the question of what constituted establishment of religion (state 

sponsored promotion or encouragement of a particular religion or religions, prohibited under the 

First Amendment) received more consistent judicial development.10

Then in 1990 in Employment Division v. Smith (Smith), the Supreme Court in a 5-4 vote returned 

to the 1878-era statutory and common law interpretation against judicially created religious 

exemptions.11 The Court reasoned that the First Amendment had never been “held to excuse [an 

individual’s religiously motivated conduct] from compliance with an otherwise valid law 

prohibiting conduct that the state is free to regulate.”12 Religious exemptions from valid laws 

could be permitted, the Smith Court ruled, but such accommodations were up to the legislature to 

allow. Of course, a law had to be neutral to avoid burdening Free Exercise rights.13

 

8

 Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that the long-established Amish religious order had not 

produced children who became a burden on society, nor had the state shown that the two years of additional 

schooling after eighth grade made the children more likely to succeed either within or outside the Amish order). 

9

 Employment Division v. Smith, 494 U.S. 872, 876-884 (1990) (describing the Court’s Free Exercise jurisprudence 

and listing successful and failed Free Exercise claims). 

10 See Healy v. James, 408 U.S. 169 (1972) (a university may not deny recognition to groups merely on account of 

disagreement with its viewpoint);Widmar v. Vincent, 454 U.S. 263 (1981) (a school may not deny recognition to 

campus religious groups seeking recognition based on the Constitution’s prohibition on establishment of religion); 

Cutter v. Wilson, 544 U.S. 709 (2005) (Section 3 of RLUIPA does not on its face exceed the limits of permissible 

government accommodation of religious practices in prison); Town of Greece v. Galloway, 134 S.Ct. 1811 (2014) 

(prayer before opening of town board meetings did not have to be nonsectarian to comply with Establishment Clause 

and did not constitute compulsion to engage in religious observance). There are some inconsistencies in the way the 

Court has come out on the issue, see McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) (posting of Ten 

Commandments on courthouse walls violated Establishment Clause). 

11 Employment Division v. Smith, 494 U.S. 872 (1990) (This involved the use of a controlled substance, peyote, 

prohibited by Oregon’s criminal codes. The Court held that if the code was neutral, meaning not specifically 

directed at a religious practice and was otherwise valid, the First Amendment did not bar its application).

12 Id. at 878-79. 

13 See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1992) (City ordinance prohibiting animal 

sacrifice was not neutral, was intended to burden the church's religious practices, and therefore violated the church's 

Free Exercise rights). 
Discussion 7 

The Smith decision was very unpopular across the political spectrum. Congress reacted by 

enacting the Religious Freedom Restoration Act14 (RFRA) in 1993 in an effort to counter the 

effect of the ruling. RFRA passed by a unanimous vote in the House, and a huge bipartisan 

majority (97-3) in the Senate. It addressed only Free Exercise doctrine, not the Establishment 

doctrine. As passed, RFRA applied to both federal and state law, but following another Supreme 

Court decision striking down a large portion applicable to the states,15 was held to apply only to 

federal law and the statute amended to so reflect. In the years following that decision, about half 

the states either passed their own RFRA statutes or interpreted their state constitutions to favor 

exemptions in certain circumstances. 

The federal RFRA reinstated the compelling interest test used in Sherbert and Yoder. It provides 

that those who object to being governed by a federal statute because it violates their faith, 

regardless of what faith it is, have a presumptive entitlement to exemption if the law substantially 

burdens the religious objector’s practice or sincerely held beliefs. To overcome this claim, the 

government must show that forcing compliance is the least restrictive means of serving a 

compelling government interest.16 This is the strictest standard of judicial review, and has the 

effect of placing the burden of proof on the government, forcing it to articulate publicly a 

rationale for denying the exemption. 

The term “substantial burden on religious exercise” can include a broad range of burdens, 

impositions, and hardships. It is not limited to requirements that a claimant act in a way that he 

or she believes is forbidden or sinful, or refrain from a practice that the claimant believes is 

commanded or obligatory.17 The term “least restrictive” means that the government may use no 

more than the minimum directive or prohibition to achieve its purpose and less restrictive 

 

14 Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, § 2, 107 Stat. 1488 (1993) (codified as 

amended at 42 U.S.C. §§ 2000bb to bb-4 (2012). 

15 City of Boerne v. Flores, 521 U.S. 507 (1997). After this decision, Congress passed the Religious Land Use and 

Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to cc-5 (2012) (RLUIPA) to protect religious assemblies 

from discriminatory land use regulations or zoning codes and to allow institutionalized persons increased rights to 

engage in conduct required of adherents to a religion. 

16 See Holt v. Hobbs, 135 S.Ct. 853, 864 (2015) (state failed to show that denying request by Muslim prisoner to 

maintain one-half-inch-length beard was least restrictive way to maintain prison security). 

17 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (government’s refusal to allow 

sect to import and use hallucinogenic plant in communion ritual constituted a substantial burden on religious 

exercise); U.S. v. Rutherford Cnty., Tenn., No. 3:12-0737, 2012 WL 2930076 (M.D. Tenn. July 18, 2012) (county’s 

refusal to grant mosque certificate of occupancy constituted a substantial burden on religious exercise). 
8 Peaceful Coexistence Report 

alternatives are unavailable.18 “Compelling governmental interest” generally involves furthering 

an overriding goal such as mandatory participation in and contribution to the Social Security 

system.19 The interpretation of these concepts as they apply to RFRA draws both on existing 

legal precedents and a growing body of law interpreting RFRA and RLUIPA. 

Smith has never been overturned by the Court, however, and might still apply to Free Exercise 

controversies between private parties20 or in some cases between an individual and a state in the 

absence of state law providing otherwise.21 Claimants have challenged such restrictions on the 

exercise of religious conduct, with varying results.22

Subsequent to its Free Exercise rulings, the Supreme Court has addressed religious freedom 

under free speech doctrines such as viewpoint discrimination or neutrality, and reaffirmed the 

ministerial exemption. Rarely dispositive although frequently asserted by claimants is the 

doctrine of expressive association, which says that the First Amendment protects the rights of 

 

18 Holt, 135 S.Ct. 853 (2015); Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2782 (2014) (“[we] conclude that 

the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an 

approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious 

beliefs.”); McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 475-76 (5th Cir. 2014) (“In the context of these 

cases, ‘least restrictive means’ is a severe form of the ‘narrowly tailored’ test ... The very existence of a governmentsanctioned exception to a regulatory scheme that is purported to be the least restrictive means can, in fact, 

demonstrate that other, less-restrictive means could exist ... Furthermore, the Department must provide actual 

evidence, not just conjecture, demonstrating that the regulatory framework in question is, in fact, the least restrictive 

means.”). 

19 U.S. v. Lee, 455 U.S. 252 (1982) (government has overriding interest in social security program that outweighs 

religious rights of Amish employers seeking exemption for their employees); see also Holt, 135 S.Ct. 853 (2015) 

(government must show compelling interest as applied to the particular person; in this case the showing as applied to 

petitioner was not compelling). 

20 Smith does not interfere with the ministerial exemption of religious organizations, which are generally treated as 

private organizations even though qualifying for various tax exemptions. 

21 See Richard Schragger, The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, 

the 'War on Terror,' and Religious Freedom, 32 CARDOZO L. REV. 2009 (2011). 

22 Compare Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied, 134 S.Ct. 1787 (2014) (holding 

New Mexico’s State RFRA not applicable to suits between private litigants where government is not a party even if 

enforced by a government agency, therefore nondiscrimination law prevailed over the State RFRA) with Fraternal 

Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1998) (then-Judge Samuel Alito 

writing, holding Sunni Muslim police claimants entitled to wear beards despite police policy because city had no 

compelling reason to deny religious exemption). 
Discussion 9 

persons to associate with like-minded others. Judicial opinions turning chiefly on expressive 

association have been inconsistent and the doctrine undeveloped.23

Viewpoint Discrimination 

Two important Supreme Court free speech cases decided the question of impermissible 

viewpoint discrimination against religious groups. Rosenberger v. Rector concerned an action 

brought against the University of Virginia by a Christian student newspaper challenging denial 

of funds for printing costs.24 The Court found for the newspaper, holding that the school’s denial 

was impermissible viewpoint discrimination under the First Amendment. Another, Good News 

Club v. Milford Central School,25 involved a Christian club for children that was refused 

permission to use school facilities after hours. The Court again held that this constituted 

impermissible viewpoint discrimination.26 In both cases, the Court’s reasoning was that the 

schools were singling out the Christian groups because of the groups’ views. 

Viewpoint Neutrality 

Christian Legal Society v. Martinez27 (Martinez) was a narrowly decided case concerning the 

limits of religious expression and association rights within a public university. This involved the 

University of California Hastings law school’s refusal to grant official recognition to the 

Christian Legal Society as a recognized, on-campus student organization, because it violated the 

school's viewpoint-neutral “all-comers” policy. The “all-comers” policy said that no student 

could be denied admission to or a leadership role in any school-sponsored or school-recognized 

 

23 Compare Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Boy Scouts of America had an associational right 

to bar homosexuals from serving as troop leaders as inconsistent with the values it seeks to instill) with Roberts v. 

U.S. Jaycees, 468 U.S. 609, 618-621 (1984) (striking down Jaycees’ refusal to allow admission of women: “The 

Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the 

formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from 

unjustified interference by the State ... factors that may be relevant include size, purpose, policies, selectivity, 

congeniality, and other characteristics that in a particular case may be pertinent ... [but] the local chapters of the 

Jaycees are large and basically unselective groups.” See also John D. Inazu, The Unsettling “Well-Settled” Law of 

Freedom of Association, 43 Conn. L. Rev. 149 (2010). 

24 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995). 

25 Good News Club v. Milford Central School, 533 U.S. 98 (2001); accord Badger Catholic, Inc. v. Walsh, 620 F.3d 

775 (7th Cir. 2010) (holding university could not refuse to fund a religious student organization’s speaker since it 

funded other student group speakers). 

26 Good News Club, 533 U.S. 98 (2001) (The Court rejected the school’s Establishment Clause claims); accord

Badger Catholic, Inc. v. Walsh, 620 F.3d 775(7th Cir. 2010) (Judge Easterbrook held his opinion pending release of 

the Court’s Martinez decision and held that the university could not refuse to fund a religious student organization’s 

speaker since it funded other student group speakers). 

27 Christian Legal Society v. Martinez, 561 U.S. 661, 130 (2010). 
10 Peaceful Coexistence Report 

group based on viewpoint or beliefs, even if those beliefs contradicted or conflicted with the 

tenets of the group. 

The school claimed that the Christian Legal Society violated this all-comers policy by denying 

those who did not sign a Statement of Faith28 the opportunity to be voting members and leaders 

of the group, thus discriminating against non-believers although the group’s activities were open 

to all as participants. The Society viewed this as a pretext for discriminating against it because 

of its views, since in viewpoint discrimination cases the schools' refusals to pay for religious 

student group activities had, for the most part, gone against the schools.29

The Society alleged that the school’s refusal violated its First and Fourteenth Amendment rights 

to free exercise of religion, expressive association and free speech.30 The Society lost in lower 

federal courts and ultimately also at the Supreme Court in a 5-4 decision. The Court majority 

declined to credit the Society's claims that the school’s refusal of recognition violated its Free 

Exercise or expressive association rights. 

Instead, the majority reasoned that the school’s recently adopted “all-comers” policy that applied 

to all groups was the proper basis for a less exacting form of review, known as limited-publicforum speech review. This review receives a lower level of judicial scrutiny and requires only 

that the restriction on speech or conduct be reasonable and viewpoint-neutral. The Court 

accepted the school’s rationale and held that the restriction was both reasonable and viewpoint-

 

28 The Society’s Statement of Faith included such tenets as an affirmation of trust in Jesus Christ as Savior, belief that 

marriage is only between a man and a woman, and that non-marital sexual intercourse is sinful. Id. at 672 n. 3. 

29 The fact of a subsidy or funding is often not dispositive. Religious institutions that accept exemptions from federal 

and state taxes do not thereby relinquish their ministerial exemptions from antidiscrimination employment laws, for 

example. See Badger Catholic, 620 F.3d at 778-79 (7th Cir. 2010) (citing Widmar v. Vincent, 454 U.S. 263, 265 

(1981) (holding university may not deny rent-free room to religious student group if others allowed it; in-kind 

subsidies no different from cash subsidies)); see also Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (finding 

presence of government funding for religious school tuition not decisive in Establishment Clause claim). But 

government funds or exemptions have been allowedly withheld from groups the Court deems discriminatory. See Bob 

Jones Univ. v. U.S., 461 U.S. 574 (1983). 

30 “All noncommercial expressive associations, regardless of their beliefs, have a constitutionally protected right to 

control the content of their speech by excluding those who do not share their essential purposes and beliefs from 

voting and leadership roles. For Hastings College of the Law to force the Christian Legal Society chapter to admit 

non-adherents into its leadership and voting ranks - on pain of exclusion from an otherwise open speech forum - 

violates Petitioner’s rights of speech, expressive association, and free exercise of religion.” Brief for Petitioner at 2, 

Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661 (2010) (No. 08-1371). 
Discussion 11 

neutral, since the school’s stated purpose was to foster inclusion, exposure to different views, 

and nondiscriminatory selection standards.31

The Martinez petitioners (the Christian Legal Society) argued that even given the school’s power 

to withhold recognition, it still had to justify its decision by showing a compelling governmental 

interest by looking at the relative costs to the Society compared to the benefits to students who 

did not adhere to the Society's credo but wished to be voting members or leaders. The Society 

argued that the school was in fact exercising viewpoint discrimination based on the school's 

disapproval of the Society’s principles, since Hastings did not prohibit political or ideological 

discrimination by other student groups until this issue arose.32 The danger as seen by the Society 

was that of forced theological drift or total exclusion of religion from the public square; the 

danger as seen by those claiming nondiscrimination rights was a retreat from such rights. 

The Martinez decision regarding the limited-public-forum doctrine and religious exemptions is 

limited in certain important respects. First, because it concerned university governance, the 

Court cautioned restraint in substituting judicial views of appropriate educational policy for those 

of school administrators and individual states, even though the policy touched on religion.33 The 

Court also reasoned that having a nondiscrimination policy avoided the school’s having to pass 

judgment on a student group’s reasons for excluding applicants. Third, the Court accepted the 

school’s rationale that encouraging tolerance among students of different backgrounds was 

 

31 The Court’s dissenters agreed with the Christian Legal Society that the all-comers policy was enacted as a pretext 

for otherwise prohibited viewpoint discrimination against CLS’s beliefs. Peaceful Coexistence: Reconciling 

Nondiscrimination Principles with Civil Liberties: Before the U.S. Comm’n on Civil Rights (March 22, 2013) 

(hereafter Briefing Tr.) at 10 (statement of Kimberlee Wood Colby, Senior Counsel, Center for Law & Religious 

Freedom of the Christian Legal Society), available at http://www.usccr.gov/calendar/trnscrpt/Peaceful-CoexistenceBriefing-Transcript_03-22-13.pdf; Martinez, 561 U.S. 661, 706 (2010); see also Toni M. Massaro, Christian Legal 

Society v. Martinez: Six Frames, 38 HASTINGS CONST. L.Q. 569 (2011) (a viewpoint neutrality analysis may 

unreasonably burden Free Exercise); see also Eugene Volokh, Freedom of Expressive Association and Government 

Subsidies, 58 STAN. L. REV. 1919, 1964-65 (2006) (arguing that although judicial guidance is murky, the 

government may not have a compelling reason to withhold a subsidy to a campus faith group that discriminates 

against nonbelievers since circumstances may show a substantial burden on religious expression and the harm to 

students excluded as non-believers is likely minimal). John D. Inazu has suggested that the Court turn analytically to a 

right of assembly to preserve religious association rights. Inazu, supra note 6. 

32 Justice Alito in dissent wrote: “In fact, funding plays a very small role in this case. Most of what CLS sought and 

was denied — such as permission to set up a table on the law school patio — would have been virtually cost free. If 

every such activity is regarded as a matter of funding, the First Amendment rights of students at public universities 

will be at the mercy of the administration. As CLS notes, [t]o university students, the campus is their world. The 

right to meet on campus and use campus channels of communication is at least as important to university students as 

the right to gather on the town square and use local communication forums is to the citizen.” (internal quotations 

omitted). See Martinez, 561 U.S. 661, 718 (2010). 

33 Id. at 686-88. 
12 Peaceful Coexistence Report 

important, and fourth, deferred to state nondiscrimination law in view of state subsidies to the 

school.34

In its reasoning, the Martinez Court viewed as significant that the Society had access to school 

facilities for meetings, the use of bulletin boards for notices of events, and private social media 

methods of communication; that the prospect of students seeking to undermine the Society’s 

functioning was hypothetical with no basis in school history; and that students who exploited the 

all-comers policy to destroy the group’s mission would be grounds for the school to revise its 

policy. The Court declined to address the issue of selective enforcement of the policy and sent 

Martinez back to the Ninth Circuit to consider the Society’s pretext argument.35

The scope of the power of government to use nondiscrimination rules that collide with religious 

expression and association continues to be debated.36 On one hand, to be able to express a 

religious group ideal, belief, or identity unavoidably means selection of leaders who are 

compelled by their religion to express those beliefs.37 Religious beliefs by their nature often, but 

not always, set limits that exclude other beliefs.38 In addition, some adherents feel that 

government should not impede campus religious group speech on an issue specifically addressed 

in the Constitution (“Congress shall make no law respecting the establishment of religion or 

prohibiting the free exercise thereof”).39 The Martinez Court held otherwise, however. 

 

34 Not specifically addressed, but an undercurrent in cases involving deference to states' control over their public 

universities, is the federalism-based view that states ought to have some leeway in regulating their schools and 

picking their way between the Free Exercise and Establishment Clauses. See Locke v. Davey, 540 U.S. 712 (2004) 

(holding Washington State's refusal to fund a theology program did not violate the Free Exercise Clause of the U.S. 

Constitution). 

35 The Society lost on remand. See Christian Legal Society v. Wu, 626 F.3d 483 (9th Cir. 2010) (holding Society did 

not initially raise the selective enforcement issue and thus failed to preserve its pretext claim for appeal). 

36 See Michael Paulson, Colleges and Evangelicals Collide on Bias Policy, N.Y. TIMES (June 9, 2014), available at

http://www.nytimes.com/2014/06/10/us/colleges-and-evangelicals-collide-on-bias-policy.html?hpw&rref=us&_r=1; 

see also Will Creeley, ‘NY Times’ on Lasting Impact of ‘CLS v. Martinez’, THE FIRE (June 10, 2014), available at

https://www.thefire.org/ny-times-on-lasting-impact-of-cls-v-martinez/. 

37 See Brief for American Center for Law and Justice et al. as Amici Curiae Supporting Petitioners 19, Christian Legal 

Soc'y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661(2010) (No. 08-1371) (“In contrast to the government’s 

legitimate interest in ensuring racial equality, the government simply has no legitimate interest whatsoever in seeing 

to it that Jewish groups admit Hindus to membership or leadership positions, that Protestants admit Catholics, that 

Baha’i admit Eastern Orthodox, or any other conceivable example.”). 

38 Volokh, supra note 31 at 1951-52, “A substantial burden [from denying an exemption] clearly exists . . . for a 

Christian students’ group that sincerely feels a religious compulsion to gather only with like-minded members who 

behave consistently with what the group sees as Christian morality . . . .” 

39 U.S. CONST. amend. I. This is different from denying subsidies to groups who may wish to admit members for 

marginally related pursuits, such as social fraternities or sororities who have a preponderance of single-religion 

members and try to keep it that way, see Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011), cert. 

denied, 132 S.Ct. 1743 (2012) (finding school nondiscrimination policy prohibiting sorority/fraternity religion 

requirement did not violate First Amendment). 
Discussion 13 

The Martinez holding does not bar public colleges from recognizing student faith groups that 

restrict the right to vote or hold office in the organization to those subscribing to the 

organization’s statement of faith and some, in fact, do grant such recognition.40 At least one 

other, however, has instituted an all-comers policy statewide, denying recognition to all the 

Society’s chapters.41

A very recent case that extended the Court’s jurisprudence on viewpoint neutrality is Reed v. 

Gilbert42 in which a town restricted the size of signs erected by a church to direct worshippers to 

various temporary locations near the town but did not restrict the size of political signs erected 

during election season. The Court held that this restriction of church sign dimensions failed the 

content-neutrality strict scrutiny test and was therefore content-based regulation that the First 

Amendment prohibits.43

Ministerial Exemption 

Compared to the all-comers policy and limited-public-forum speech analysis, the ministerial 

exemption is less controversial. The Court unanimously endorsed this exemption, applied for 

decades in the lower courts, in Hosanna-Tabor Evangelical Lutheran Church and School v. 

Equal Employment Opportunity Commission44 (Hosanna-Tabor). This case involved the 

dismissal of a teacher responsible for instructing children in both secular and religious subjects 

when she attempted to return to work after a long absence because of narcolepsy. The Equal 

Employment Opportunity Commission (EEOC) brought suit against the church on the teacher’s 

behalf for violation of the retaliation and disability provisions of the Americans with Disabilities 

Act (ADA).45

All nine justices of the U.S. Supreme Court found that the teacher was a minister of religion for 

the purposes of the First Amendment using a multi-factor test largely specific to the 

circumstances, and rejected the EEOC’s claim that the nondiscrimination provisions of the ADA 

 

40 Briefing Tr. at 13 (statement of Kimberlee Colby, Christian Legal Society); see also briefing slide presentation, 

Speaker Kimberlee Colby (Christian Legal Society) (University of Texas at Austin New Student Organization 

Registration Application: “An organization created primarily for religious purposes may restrict the right to vote or 

hold office to persons who subscribe to the organization’s statement of faith.”) (emphasis added.) 

41 See Memorandum from Charles B. Reed, Chancellor, California State University (Dec. 21, 2011), available at 

http://www.calstate.edu/eo/EO-1068.html; see also Kimberly Winston, InterVarsity, College Christian Group, 'DeRecognized' At California State University Campuses, HUFF. POST (Sept. 10, 2014, 11:59 AM), available at 

http://www.huffingtonpost.com/2014/09/09/intervarsity-sanctioned-california-state-university_n_5791906.html. 

42 Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). 

43 Id. at 2231-32. 

44 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012). 

45 Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1990). 
14 Peaceful Coexistence Report 

took precedence over a church’s freedom to choose its ministers. Since the teacher was deemed 

a minister under the Court’s analysis, the Court rejected the EEOC’s assertion that someone 

other than the religious institution had the right to sit in judgment over the teacher's suitability or 

that any specific test such as the amount of time spent by the teacher on religious subjects was 

determinative.46 The Court held that the ministerial exemption applied in this case and was 

grounded in the special solicitude the Constitution grants to religious organizations under the 

First Amendment.47

Religious Accommodation in Employment under Title VII 

Title VII of the Civil Rights Act of 196448 prohibits an employer from refusing employment to 

someone to avoid having to grant a religious accommodation, as long as it can grant such 

accommodation without undue hardship. In EEOC v. Abercrombie and Fitch Stores, Inc. 

(Abercrombie),49 the petitioner was a practicing Muslim who applied to an Abercrombie store 

wearing a headscarf. The store had a policy dictating the appearance of its sales personnel, 

which the store manager believed would not allow headgear of any kind. The Court reasoned, 

however, that mere neutrality of policy was immaterial since Title VII accords favored treatment 

to religious practices.50 The Court observed that Abercrombie either knew, or at least suspected, 

that her headscarf was worn for religious reasons, which was enough to invoke the protection of 

Title VII.51

As a result, the Supreme Court unanimously held that because Title VII is silent on the question 

of whether an employer must have actual knowledge of the need for religious accommodation, a 

job applicant may prove a disparate treatment claim by showing that his or her need for religious 

accommodation was a motivating factor in not being offered a job, regardless of the employer’s 

actual knowledge that the applicant’s practice was religious and required an accommodation.52

 

 

46 Hosanna-Tabor, 132 S.Ct. at 709. 

47 The Court held (in a footnote) that the ministerial exemption is an affirmative defense that allows a religious 

organization to dismiss a suit brought against it, not a jurisdictional bar. Id. at n. 4. 

48 “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, 

or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” Title VII of 

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. 

49 EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015). 

50 Id. at 2034. 

51 Id. at 2031, 2034. 

52 Id. at 2033. 
Discussion 15 

Federal Religious Freedom Restoration Act 

The Court has interpreted the federal RFRA in two relatively recent cases. In Gonzales v. O 

Centro Espirita Beneficente,

53 the government sought to ban a sect’s religious use of a 

hallucinogenic tea under the Federal Controlled Substances Act. The Court overturned lower 

court holdings and unanimously found that the government had failed to show that it had a 

compelling interest in the application of a ban that allowed for no exceptions.54 The Court 

emphasized that the very existence of RFRA reflected Congress’s determination that exemptions 

and accommodations are sometimes appropriate.55

Burwell v. Hobby Lobby Stores, Inc.,

56 a Supreme Court case decided after the Commission’s 

briefing, asked whether, in the context of the Affordable Care Act’s (ACA)57 contraceptive 

mandate, RFRA’s religious exemptions are available to for-profit corporations that are closely 

held and whose owners’ sincerely held religious beliefs would be substantially burdened by 

compliance with the mandate. The contraceptive mandate of the ACA required that insurance 

plans available to businesses for their employees provide contraceptives, some of which Hobby 

Lobby Stores viewed as abortifacients, and also other reproductive services at no out-of-pocket 

cost to employees.58

The Court decided 5-4 in favor of Hobby Lobby Stores, holding that Hobby Lobby Stores and by 

implication other closely-held, for-profit secular entities, may invoke RFRA’s protections. The 

Hobby Lobby holding was the first time the Court had squarely held that RFRA applies to a forprofit secular corporation, and it has already had an effect on lower courts’ rulings in related 

areas.59

The Hobby Lobby Court looked at the ACA’s burden on religious adherents and concluded that 

the coercive nature of the burden requiring Hobby Lobby Stores to provide contraceptives was 

substantial. The Court assumed that there was a compelling governmental interest, but held that 

the government did not use the least restrictive means of furthering the ACA requirement that the 

 

53 Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006). 

54 Id. at 439. 

55 Id. at 434. 

56 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). 

57 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in 

scattered sections of 26 and 42 U.S.C.). 

58 See Coverage of Certain Preventive Services Under the Affordable Care Act 78 Fed. Reg. 39870 (Dep’t of Health 

and Human Services July 2, 2013), 45 C.F.R Part 147 and 156 (2015). 

59 See Eternal Word Television Network, Inc. v. Sec’y, United States HHS, 756 F.3d 1339 (11th Cir. 2014) (enjoining 

HHS from enforcing certain Affordable Care Act provisions); see also McAllen Grace Brethren Church v. Salazar, 

764 F.3d 465 (5th Cir. 2014) (government failed to show compelling reason to impose restriction on American 

Indians not federally recognized as members of a tribe from owning bald eagle feathers for religious purposes). 
16 Peaceful Coexistence Report 

employer provide certain reproductive products and services since other means of providing the 

products and services were readily available. The Court found substantial coercion from both 

the cost burden to the stores from refusing to provide the reproductive products and services - 

hundreds of millions of dollars of fines per year60 - and substantial coercion in requiring the 

owners of the corporation to violate their religious beliefs. 

Many view the Hobby Lobby decision as diminishing the rights of female employees employed 

by certain businesses to control their own care and receive essential medical insurance coverage. 

Some consider this to be a reminder of an era in which women’s concerns were not considered as 

important as, and indeed were subrogated to, those of men. In addition, opponents saw the ruling 

as violating the rights of those who were merely third parties (the insured employees) by denying 

coverage61 and removing some of the protections of antidiscrimination law. 

Those who supported the right of private, for-profit entities to religious exemptions instead 

viewed the decision as striking a reasonable balance between an individual's right to coverage 

under a generally applicable law and protection of religious liberty, since the government had 

other means available to provide the contraceptives in question and employees were still able to 

buy them. 

Following the Hobby Lobby decision, the Court took up the question of whether same-sex 

couples have a right under the Constitution to marry, regardless of any State law prohibiting 

recognition of such marriage. In Obergefell v. Hodges (Obergefell)62 the Court in a 5-4 decision 

found that petitioners do have the constitutional right to marry and also the right to have their 

 

60 At issue in Hobby Lobby were HHS regulations promulgated under the Patient Protection and Affordable Care Act 

of 2010 (ACA). The ACA generally requires employers with 50 or more full-time employees to offer “a group health 

plan or group health insurance coverage” that provides “minimum essential coverage,” 26 U.S.C. §§ 5000A(f)(1)-

(f)(2), §§ 4980H(a), (c)(2)(A). Any covered employer that does not provide such coverage must pay a substantial fee. 

Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA's grouphealth-plan requirements, the employer may be required to pay $100 per day for each affected individual, 

§§4980D(a)-(b). And if the employer decides to stop providing health insurance altogether and at least one full - time 

employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the 

employer must pay $2,000 per year for each of its full-time employees, §§ 4980H(a), (c)(1). For Hobby Lobby, the 

bill was estimated to amount to $1.3 million per day or about $475 million per year; for Conestoga, Hobby Lobby’s 

co-respondent, the assessment was $90,000 per day or $33 million per year, Hobby Lobby, 134 S.Ct. at 2775-76. 

61 See Griffin Statement, infra. 

62 Obergefell v. Hodges, 135 S.Ct. 2584 (2015). 
Discussion 17 

marriages recognized in all other States of the Union.63 This decision will likely provide a 

rationale for future tests of limits to religious exemptions under RFRA and the Constitution. 

Obergefell petitioners, in a cluster of consolidated cases, argued that state prohibitions against 

recognition of same-sex marriage violated the Equal Protection and Due Process Clauses of the 

U.S. Constitution. Justice Kennedy, writing for the majority, held that the right to marry is 

fundamental under the Constitution; that same-sex couples have the same right to marry and 

have their marriages recognized in all other States as do persons of the opposite sex; that the Due 

Process Clause of the Fourteenth Amendment protects individual liberty; that such liberty 

includes the freedom to marry a person of one’s own choosing; and that excluding gays and 

lesbians from marriage demeans them and bars them from entering into a central institution of 

society. 

The opinion also stated that those who adhere to religious or other doctrines that do not condone 

same-sex marriage are protected by the First Amendment, and may “continue to advocate with 

utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. 

The First Amendment ensures that religious organizations and persons are given proper 

protection as they seek to teach the principles that are so fulfilling and so central to their lives 

and faiths, and to their own deep aspirations to continue the family structure they have long 

revered.”64

Justice Kennedy concluded with the words, “[no] union is more profound than marriage, for it 

embodies the highest ideals of love, fidelity, devotion, sacrifice, and family...[petitioners’] hope 

is not to be condemned to live in loneliness, excluded from one of civilization’s oldest 

institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that 

right.” 

Pros and Cons As Seen By Legal Scholars 

Legal scholars and advocates participating in the Commission’s briefing represented well the 

often-stark differences in views of religious rights held not only by scholars but also by the 

public. 

 

63 Based on the Obergefell decision, the Fifth, Sixth, and Eighth Circuit Courts of Appeal have struck down other 

state-law, same-sex marriage prohibitions (similar to those at issue in Obergefell) and held that states cannot refuse to 

recognize same-sex marriages lawfully performed in other states, see Robicheaux v. Caldwell, 791 F.3d 616 (5th Cir. 

2015); Campaign for Southern Equality v. Bryant, 791 F.3d 625 (5th Cir. 2015); De Leon v. Abbott, 791 F.3d 619 (5th

Cir. 2015); Chevalier v. Estate of Barnhart, 803 F.3d 789 (6th Cir. 2015); Waters v. Ricketts, 798 F.3d 682 (8th Cir. 

2015); Jernigan v. Crane, 796 F.3d 976 (8th Cir. 2015); Rosenbrahn v. Daugaard, 799 F.3d 918 (8th Cir. 2015). 

64 Obergefell at 2607. 
18 Peaceful Coexistence Report 

Pro-Religious Exemption 

A pro-religious-exemption view of the Free Exercise debate is that the “all-comers” policy 

passing muster with the Court in Martinez should have been held unconstitutional on its face, 

regardless of any subsidy or non-subsidy.65 From this point of view, the policy eviscerates both 

the right of assembly and the free exercise of religion, since it prevents the formation of group 

worship and activities. The statements of experts Kimberlee Colby, Ed Whelan, Lori Windham 

and John Inazu support this view for multiple reasons. 

Their reasons for requiring state actors to carve out exceptions for religiously motivated 

discrimination from generally applicable laws are that such laws, despite being generally 

applicable, 1) interfere with the constitutionally important right to associate with others holding 

similar religious views, 2) discriminate against the viewpoints of religious persons using the 

pretext of nondiscrimination policy, 3) block disfavored groups from school benefits accorded all 

other groups, 4) deny freedom to choose leaders who can be effective in the organization, 5) fail 

to weigh the benefits and harms of denial, so that even a virtually nonexistent harm outweighs 

religious freedom, 6) force participation in actions identified as sinful, 7) deny the right to live 

according to deeply held beliefs, and 8) deny the right to dissent from majoritarian politics. 

Kimberlee Colby of the Christian Legal Society (CLS) emphasized the importance of the 

freedom to associate with like-minded others to pursue religious ideals. As did many of the 

other speakers, she discussed the policy conflicts over religious freedom in Martinez66

(viewpoint neutrality rules) and Hosanna-Tabor67 (ministerial exemption). 

Ms. Colby said that because of Martinez, increasingly colleges are telling religious students that 

they cannot meet on campus if they require their group’s leaders to agree with the group’s 

religious beliefs.68 Ms. Colby’s view is that Martinez should have been decided in line with 

earlier cases such as Healy v. James, which held that the First Amendment required a public 

college to stop exercising viewpoint discrimination against the campus Students for a 

Democratic Society, and Widmar v. Vincent, which held that student group recognition was not 

endorsement. She stated that it is impossible for a student group to function on campus without 

university recognition, since only recognized groups may reserve meeting space, communicate 

with other students using mass e-mails, and apply for funding.69 According to Ms. Colby, once 

the Court held in Healy that a state university’s disagreement with a group’s beliefs did not 

 

65 See generally Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006); see also U.S. v. 

Rutherford Cnty., Tenn., No. 3:12-0737, 2012 WL 2930076 (M.D. Tenn. July 18, 2012). 

66 Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661 (2010). 

67 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012). 

68 Briefing Tr. at 8-9 (statement of Kimberlee Colby, Christian Legal Society). 

69 Briefing Tr. at 9-10 (statement of Kimberlee Colby, Christian Legal Society). 
Discussion 19 

justify denial of recognition, and in Widmar that the Establishment Clause was not a justification 

for denying recognition, colleges turned to misusing university nondiscrimination and speech 

policies as a pretext for denying recognition to religious groups and excluding them from 

campus, as Vanderbilt University did in 2011.70

Lori Windham of the Becket Fund for Religious Liberty, which protects religious freedom for 

believers in all religious traditions, expressed similar views. Her organization has for example 

defended a mosque facing discrimination from its neighbors, a Santeria priest banned from 

performing animal sacrifice, and Amish home builders facing imprisonment for refusing to 

adhere to building codes that violate their religious beliefs. Ms. Windham stated that a church 

should have a right to decide who will guide it without the involvement of the government. She 

invoked the Supreme Court’s view that “the interests of society in enforcement of employment 

discrimination statutes is undoubtedly important, but so too is the interest of religious groups in 

teaching who will preach their beliefs, teach their faith, and carry out their mission.”71 Ms. 

Windham noted the success of the Becket Fund in successfully representing the Lutheran church 

before the Supreme Court in Hosanna-Tabor v. EEOC based on these religious principles.72

Ed Whelan of the Ethics and Public Policy Center offered a guide to thinking through how 

nondiscrimination principles should apply. He distinguished between rules governing 

governments and those governing private citizens since unlike individuals, governments do not 

have civil liberties that can be burdened. Mr. Whelan opposed the federal Health and Human 

Services Department’s regulation requiring many employer-provided health insurance plans to 

include forms of contraception that may operate as abortifacients or sterilization. 

He offered three reconciliation principles for nondiscrimination and civil liberties: 1) traditional 

liberalism distinguishes between the rules that the government must follow and the rules that 

apply to the conduct of ordinary citizens, which in this case means that intrusion on civil liberties 

must pass a much higher bar as applied to nongovernmental organizations; 2) the paradigmatic 

and strongest case of a wrongful basis of discrimination is race; and 3) other bases of 

discrimination commonly prohibited under federal law are qualitatively different from race, such 

as sex-segregated restrooms. 

John Inazu of the Washington University Law School (St. Louis) discussed the constitutional 

importance of groups; the importance of specifying the benefits or harms caused by groups, and 

the dangers of the “all-comers” logic endorsed by Martinez. He believes that the First 

Amendment allows groups to secure self-realization, self-governance, and to dissent from 

majoritarian politics, all of which are valuable in a pluralistic society in support of “the right to 

 

70 Briefing Tr. at 11 (statement of Kimberlee Colby, Christian Legal Society). 

71 Briefing Tr. at 25 (statement of Lori Windham, Becket Fund for Religious Liberty). 

72 Briefing Tr. at 20-21 (statement of Lori Windham, Becket Fund for Religious Liberty). 
20 Peaceful Coexistence Report 

differ as to things that touch the heart of the existing order.”73 As to the possible harms caused 

by groups, he noted that the Martinez Court failed to explain either the harm caused by exclusion 

from the Christian law student group, or why that harm approximated the political, economic, 

and social harms addressed by civil rights laws. As to the benefits, he stated that Martinez also 

failed to account for the value of recognizing the constitutional importance of the Christian 

group’s right to exist on its own terms in the public forum, including communicating with fellow 

students via university group email. He concluded that the Court had ignored those 

constitutional values, failed to apply the appropriate analysis, and allowed an all-comers policy 

to act as a classic prior restraint that excluded the religious group from the public forum. 

Briefing speakers also generally sympathetic to protection for religious expression included 

Marc DeGirolami and Michael Helfand. As did Professor Inazu, both preferred to look at cases 

by balancing the interests at stake. Marc DeGirolami of St. John’s University Law School 

recommended acknowledging conflicts in this area as inevitable and acceptable under our legal 

system, and refraining from attempts to make blanket rules that prevent doing justice in 

particular situations. He also posited that there could be no large-scale solution or consensus in 

this area. He approved of the Court’s approach in Hosanna-Tabor that declined to adopt a rigid 

formula for deciding when an employee qualifies as a minister.74

Michael Helfand of Pepperdine Law School supported the doctrine of church autonomy and the 

larger philosophical questions that inform the legal analysis of competing claims, which included 

1) the important constitutional value of religious institutions in a liberal democracy, 2) 

appropriate limits on churches’ constitutional protections, 3) the relationship between punishing 

religious adherents’ misconduct and discrimination against religion, and 4) balancing the value 

of religious institutions against the difficulty of adjudicating conflicts.75

Against Religious Exemption 

Other briefing speakers largely opposed such exemptions, preferring the ostensibly clearer and 

easier-to-apply solution expressed in Smith, which protected belief but not conduct. This noexemption view avoids having to define “religion” or “religious views,” something that is almost 

impossible except on a case by case basis, and even then, often difficult. 

The exemption opponents’ reasons were 1) schools must be allowed to insist on inclusive values, 

2) throughout history, religious doctrines accepted at one time later become viewed as 

 

73 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641-642 (1943). 

74 For his views on the Roberts Court and Free Exercise, see Marc O. DeGirolami, Constitutional Contraction: 

Religion and the Roberts Court, STAN L. & POL’Y REV., available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2491538. 

75 For his view on church autonomy, see Michael A. Helfand, Religion’s Footnote Four: Church Autonomy as 

Arbitration, 97 MINN. L. REV. 1891 (2013), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2141510. 
Discussion 21 

discriminatory, with religions changing accordingly, 3) without exemptions, groups would not 

use the pretext of religious doctrines to discriminate, 4) a doctrine that distinguishes between 

beliefs (which should be protected) and conduct (which should conform to the law) is fairer and 

easier to apply, 5) third parties, such as employees, should not be forced to live under the 

religious doctrines of their employers, 6) a basic right as important as the freedom to marry 

should not be subject to religious beliefs, and 7) even a widely accepted doctrine such as the 

ministerial exemption should be subject to review as to whether church employees have religious 

duties. 

Ayesha Khan of Americans United for Separation of Church and State stated that universities 

have a strong interest in barring exclusionary practices by recognized on-campus student 

organizations because a principal purpose of providing facilities and money is to enable students 

to participate in groups with others of different beliefs to further the school’s educational 

purpose. She therefore agreed with the outcome in Martinez, and noted that Hosanna-Tabor

turned on case-specific grounds and did not adopt any legal test for deciding when employment 

decisions would fall under the ministerial exception. 

She also pointed out that throughout history, religious doctrines that were widely accepted at one 

time came to be deemed highly discriminatory, such as slavery, homosexuality bans, and unequal 

treatment of women, and that what is considered within the purview of religious autonomy at one 

time would likely change. Her conclusion was that the law should not grant exemptions rather 

than defer to religious beliefs. 

Marci Hamilton of Cardozo Law School largely disagreed with the analysis and outcome in 

Hosanna-Tabor. She emphasized that an important holding of Hosanna-Tabor was a rejection 

of the ministerial exception as a jurisdictional bar to suits against religious institutions, but 

accepted that the case allowed a church to hire and fire religious teachers without being subject 

to nondiscrimination law. 

In Ms. Hamilton’s view, the evidence showed that the church’s actions were pretextual and 

retaliatory, and that the teacher’s categorization as a religious teacher was unwarranted since her 

duties before and after her licensing as a called teacher were identical. She disagreed strongly 

that religious institutions should be allowed to decide for themselves who falls under a 

ministerial exception or that they should not be subject to nondiscrimination laws. She disagreed 

that there is a church autonomy doctrine.76

Leslie Griffin of the University of Nevada at Las Vegas Law School argued that religious liberty 

under the First Amendment should not be protected if expressed in conduct rather than belief, 

and that religious institutions should be subject to the same nondiscrimination laws as everyone 

 

76 The “church autonomy doctrine” is the umbrella term for the principle that religious institutions may direct their 

own internal affairs free from government interference. 
22 Peaceful Coexistence Report 

else. She cited with approval the Supreme Court’s rejection of Bob Jones University’s nonprofit 

status under IRS rules because of its religious ban on interracial relationships.77 She also 

opposed any exemption that allowed an employer’s religious views to be imposed on employees, 

an issue before the Supreme Court in Hobby Lobby, and disagreed with the provisions of RFRA 

that support such exemptions.78

Two speakers, Daniel Mach of the American Civil Liberties Union (ACLU) Program on 

Freedom of Religion and Belief, and Alan Brownstein of the University of California Davis Law 

School, expressly supported the applicability of the Martinez Court’s limited-public-forum 

analysis. 

Daniel Mach viewed the Martinez holding as answering the question of whether such groups 

have the right to receive subsidies from the government if they select leaders for their views, not 

whether they have the right to do so under other circumstances. He agreed with the Martinez

Court that they do not.79 He viewed Hosanna-Tabor as legitimizing the use of the ministerial 

defense by a church to hire and fire for religious reasons based on its authority as a religious 

institution. He agreed with the Court’s decision but asserted the view that not every employee of 

a church can be considered a minister under this doctrine, only those who have doctrinal duties. 

He opposed any effort to expand the doctrine. 

Alan Brownstein argued that the Supreme Court increasingly construes both the Free Exercise 

Clause and the Establishment Clause narrowly and claims that might have previously been 

decided under the Religion Clauses are instead decided as free speech claims. He argued that 

treating these claims as free speech rather than free exercise may ultimately undercut religious 

liberty by reducing it to merely a species of speech entitled to no more or less protection than 

secular speech, rather than a distinctive liberty interest that receives heightened protection.80 He 

considered the recognition of same-sex marriage as a moral necessity for States and advocated 

treating religious freedom as an accommodation that in certain circumstances allows 

 

77 None of the briefing speakers however, regardless of views, suggested that racial bias by a religious organization 

could be protected under an exemption pursuant to the First Amendment or RFRA. 

78 Briefing Tr. at 91-92 (statement of Leslie Griffin, Univ. of Nevada Las Vegas Law School), citing United States 

v. Lee, 455 U.S. 252, 261 (1982) (Upholding social security against religious objections: “When followers of a 

particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a 

matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in 

that activity.”). 

79 As to what constitutes a subsidy: The IRS takes the view that a tax exemption is a subsidy, see Regan v. Taxation 

with Representation, 461 U.S. 540, 544 (1983) (“Both tax exemptions and tax-deductibility are a form of subsidy that 

is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization 

of the amount of tax it would have to pay on its income.”). By this definition, private universities also receive 

subsidies, as do most businesses and individuals who claim deductions, a question unexplored in Martinez. 

80 Briefing Tr. at 103-105 (statement of Alan Brownstein, Univ. of California Davis Law School). 
Discussion 23 

discrimination on religious grounds.81 Under his proposal, this would protect nonprofits more 

than commercial businesses. 

Public Comments 

The Commission received 110 written comments, an unusually large number for a Commission 

briefing. The comments originated from the United States, Canada, and Europe, and included 

individuals, religious groups, schools, professors and interest groups. Over one hundred 

comments generally supported religious exemptions and the right of religious institutions and 

groups to direct their own affairs regardless of otherwise applicable laws. A comment from 

Europe discussed and objected to five European laws that severely restrict religious exemptions 

from nondiscrimination laws, including Austria/EU, Spain/EU, Ireland, United Kingdom, and 

the European Union generally. Comments from religious groups that provide services to those in 

need (including child welfare networks) described the collision between government directives 

based on nondiscrimination requirements (usually relating to abortion, abortifacients, unmarried 

and/or same-sex couples seeking to adopt or foster) and the foundational principles of the 

charity. A comment from a public interest litigation group that has defended Free Exercise on 

over a hundred campuses stated that colleges use nondiscrimination regulations as a pretext for 

viewpoint discrimination against orthodox Christianity, since actual cases of exclusion of 

nonbelievers from campus religious leadership are rare. Other comments supported some or all 

of these views. 

A smaller number of submitted comments (seven) supported the primacy of nondiscrimination 

laws. An organization advocating on behalf of lesbian, gay, bisexual and transgender (LGBT) 

people objected to the expansion of religious liberty exemptions because of their pervasive and 

harmful effect, and recommended going back to the 1990 Employment Division v. Smith era prior 

to the enactment of RFRA. A comment from a litigation and advocacy group protecting LGBT 

rights stated that nondiscrimination laws do not impinge on religious liberty. A task force 

comment on LGBT rights agreed. An interest group promoting secular/atheist views also 

objected to allowing religious exemptions. A university comment defended its nondiscrimination 

requirement for recognized student groups as not interfering with the expression of religious 

faith because any group refusing to open its membership to any student regardless of views is 

still allowed to meet on campus, recruit, and organize. The university stated that the sole 

disadvantage to such group is that it does not have official university recognition. 

Public comments submitted for the briefing are available from the Commission by writing to 

foia@usccr.gov. 

 

81 Id. 
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Findings and Recommendations 25 

FINDINGS AND RECOMMENDATIONS 

Findings 

1. Civil rights protections ensuring nondiscrimination, as embodied in the Constitution, laws, 

and policies, are of preeminent importance in American jurisprudence. 

2. The U.S. Supreme Court has recently reaffirmed the foremost importance of civil liberties 

and civil rights, including non-discrimination laws and policies, in three significant cases. 

In Christian Legal Society v. Martinez, 561 U.S. 661 (2010), the U.S. Supreme Court applied the 

limited public forum and viewpoint neutrality doctrines in upholding the University of California 

Hastings Law School’s denial of recognition - and provision of public resources to - a student 

group which failed to comply with school policy preventing recognized groups from 

discriminating on the basis of religion. Under Christian Legal Society v. Martinez, public 

colleges still may choose to recognize religiously-based student groups which practice 

discriminatory policies, but they are not required to do so. 

In EEOC v. Abercrombie and Fitch Stores, Inc., 135 S.Ct. 2028 (2015), when it held that, under 

Title VII of the Civil Rights Act of 1964, employers may not refuse to hire an individual in order 

to avoid needing to provide a religious accommodation which would not impose undue hardship 

upon the employer. This case recognizes the tenet that religious freedom is, in itself, a civil 

liberty. 

In Obergefell v. Hodges, 135 S.Ct. 2584 (2015), the U.S. Supreme Court recognized that the 

Fourteenth Amendment grants the civil liberty of full marriage equality to same-sex couples 

throughout the nation. Prior to this ruling, during the Commission’s briefing, panelist and 

University of California Davis Law School professor Alan Brownstein referred to governmental 

recognition of marriage equality as a “moral necessity.” 

3. 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. 

4. 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. 

5. With regard to federal government actions, RFRA protects only First Amendment free 

exercise rights of religious practitioners and not their Establishment Clause freedoms. Prior to 
26 Peaceful Coexistence Report 

RFRA’s enactment, the U.S. Supreme Court had held in Employment Division v. Smith, 494 U.S. 

872 (1990), that the First Amendment “had never been held to excuse [an individual’s religiously 

motivated conduct] from compliance with an otherwise valid law prohibiting conduct that the 

state is free to regulate.” This holding strengthened nondiscrimination laws and policies against 

actors who asserted religious justification for civil rights discrimination. RFRA now supercedes 

Smith as a controlling source of federal authority. Some states have enacted statutes modeled 

after RFRA which impact state-level nondiscrimination civil liberties and civil rights protections. 

6. In Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), the U.S. Supreme Court 

recently affirmed the narrowness of the analytical framework within which claims of government 

interference with the free exercise of religion must be construed under RFRA. The Court also 

affirmed that meticulous factual inspection is necessary in the process of adducing - or rejecting - 

RFRA exceptions to civil liberties and civil rights protections. 

7. The Commission endorses the briefing panelists’ statements as summarized at page 21 of 

the Report in support of these Findings. 

(1) schools must be allowed to insist on inclusive values; 2) throughout history, religious 

doctrines accepted at one time later become viewed as discriminatory, with religions changing 

accordingly; 3) without exemptions, groups would not use the pretext of religious doctrines to 

discriminate; 4) a doctrine that distinguishes between beliefs (which should be protected) and 

conduct (which should conform to the law) is fairer and easier to apply; 5) third parties, such as 

employees, should not be forced to live under the religious doctrines of their employers [unless 

the employer is allowed to impose such constraints by virtue of the ministerial exception]; 6) a 

basic [civil] right as important as the freedom to marry should not be subject to religious beliefs; 

and 7) even a widely accepted doctrine such as the ministerial exemption should be subject to 

review as to whether church employees have religious duties. 

Further, specifically with regard to number (2) above, religious doctrines that were widely 

accepted at one time came to be deemed highly discriminatory, such as slavery, homosexuality 

bans, and unequal treatment of women, and that what is considered within the purview of 

religious autonomy at one time would likely change. 

Recommendations 

1. 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. 

2. 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. 
Findings and Recommendations 27 

3. In the absence of controlling authority to the contrary such as a state-level, RFRA-type 

statute, the recognition of religious exemptions to nondiscrimination laws and policies should be 

made pursuant to the holdings of Employment Division v. Smith, which protect religious beliefs 

rather than conduct. 

4. 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. 

5. 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. 
[This page intentionally left blank] 
Commissioners’ Statements 29 

COMMISSIONERS’ STATEMENTS AND REBUTTALS 

Chairman Martin R. Castro Statement 

“The government of the United States is not, in any sense, founded on the Christian 

religion.” —JohnAdams

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. 

Religious liberty was never intended to give one religion dominion over other religions, or a veto 

power over the civil rights and civil liberties of others. However, today, as in the past, religion is 

being used as both a weapon and a shield by those seeking to deny others equality. In our 

nation’s past religion has been used to justify slavery and later, Jim Crow laws. We now see 

“religious liberty” arguments sneaking their way back into our political and constitutional 

discourse (just like the concept of “state rights”) in an effort to undermine the rights of some 

Americans. This generation of Americans must stand up and speak out to ensure that religion

never again be twisted to deny others the full promise of America. 
30 Peaceful Coexistence Report 

Commissioners Achtenberg, Castro, Kladney, and Yaki Statement 

I. The U.S. Commission on Civil Rights has spoken forcefully about the paramount 

importance of nondiscrimination laws and the imperative that religious exemption, to 

the extent required under law, be narrowly crafted. 

Progress toward social justice depends upon the enactment of, and vigorous enforcement of, 

status-based nondiscrimination laws. Limited claims for religious liberty are allowed only when 

religious liberty comes into direct conflict with nondiscrimination precepts. The central finding 

which the Commission made in this regard is: 

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.1

Because religious exemption places a significant burden upon status-based civil liberties, the 

Commission cautioned that 

“Overly-broad religious exemptions unduly burden nondiscrimination laws and 

policies. Federal and state courts, lawmakers, and policy-makers at every level 

 

1

 “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” United States 

Commission on Civil Rights, (hereinafter USCCR Report), Finding #4, 2016, supra at 25. 

Also, as concluded in Finding #7: 

The Commission endorses the briefing panelists’ statements in support of these Findings as summarized at p. 26 of 

the Report: 

1) schools must be allowed to insist on inclusive values; 2) throughout history, 

religious doctrines accepted at one time later become viewed as discriminatory, 

with religions changing accordingly; 3) without exemptions, groups would not 

use the pretext of religious doctrines to discriminate; 4) a doctrine that 

distinguishes between beliefs (which should be protected) and conduct (which 

should conform to the law) is fairer and easier to apply; 5) third parties, such as 

employees, should not be forced to live under the religious doctrines of their 

employers [unless the employer is allowed to impose such constraints by virtue 

of the ministerial exception]; 6) a basic [civil] right as important as the freedom 

to marry should not be subject to religious beliefs [footnote omitted]; and 7) 

even a widely accepted doctrine such as the ministerial exemption should be 

subject to review as to whether church employees have religious duties. 

Further, specifically with regard to number (2) above, religious doctrines that were widely 

accepted at one time came to be deemed highly discriminatory, such as slavery, homosexuality 

bans, and unequal treatment of women, and that what is considered within the purview of religious 

autonomy at one time would likely change. 

Id. supra at 26. 
Commissioners’ Statements 31 

must tailor religious exceptions to civil liberties and civil rights protections as 

narrowly as applicable law requires.”2

The fight to make religious-based exemptions to nondiscrimination laws preeminent over statusbased civil liberties protections is characterized often as a battle being waged by some Christians 

who purport to speak for all Christians. On the contrary, many Christian denominations and 

individuals support the notion that religious freedom can and should be expressed through 

principles and actions geared toward inclusion and toward the recognition and expansion of the 

rights of others.3 Dr. Martin Luther King, Jr., recognized the critical role that religion should fill 

in furthering, rather than hindering, secular, status-based civil liberties protections. When 

addressing racial discrimination in federal contracting, he declared 

Precisely because we cannot endure in love or justice the erosion and 

demoralization to minority groups that spring from discrimination in employment, 

the Church must be the first segment in the nation to stand firmly, not merely for 

the enunciation of the moral principle of non-discrimination, but it must also 

encourage and stand behind the Government when it carries out its obligation in 

refusing or withdrawing Federal contracts from those employers who do not in 

 

2 Id. Recommendation #1, supra at 26. 

The Commission also endorsed the following key principles: 

Recommendation #2: RFRA [the Religious Freedom Restoration Act] 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. 

Recommendation #4: 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 statusbased discrimination. 

Recommendation #5: 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. 

Id. supra at 26-27. 

See also “A Blueprint for Reclaiming Religious Liberty Post-Hobby Lobby,” Center for American Progress, June 

2014, p. 13, available at https://cdn.americanprogress.org/wp-content/uploads/2014/07/ReligiousLibertyReport.pdf; 

“Restoring the Balance: A Progressive Vision of Religious Liberty Preserves the Rights and Freedoms of All 

Americans,” Center for American Progress, October 2015, available at https://cdn.americanprogress.org/wpcontent/uploads/2015/10/20070051/HobbyLobby2-reportB.pdf; and “Striking a Balance: Advancing Civil and 

Human Rights While Preserving Religious Liberty,” The Leadership Conference Education Fund, January 2016, 

available at http://civilrightsdocs.info/pdf/reports/2016/religious-liberty-report-WEB.pdf. 

3

 For example, the United Church of Christ provides a designation of “Open and Affirming” to “congregations, 

campus ministries, and other bodies in the UCC which make a public covenant of welcome into their full life and 

ministry to persons of all sexual orientations, gender identities, and gender expressions.” United Church of Christ, 

“Open and Affirming in the UCC,” available at http://www.ucc.org/lgbt_ona. 
32 Peaceful Coexistence Report 

fact live up to the letter and spirit of the non-discrimination clause. The Church 

must have the courage and the resoluteness to support the Government when it 

determines to make examples of industries in dramatically cancelling large 

contracts where the principle of brotherhood is violated. For, in refusing to 

operate strictly within the framework of the contract, employers violate and 

degrade human personality - and our most sacred trust.4

II. 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 antiLGBT 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 farreaching 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. 

The extent to which these proposals represent a backlash to the U.S. Supreme Court’s June 2015 

recognition of a right to marriage equality for same-sex couples7

 and President Obama’s 

 

4

 King, Jr., Dr. Martin Luther, “Address at the Religious Leaders Conference on May 11, 1959, Washington, D.C.,” 

The Martin Luther King, Jr. Papers Project, p. 201, available at 

https://swap.stanford.edu/20141218225541/http://mlkkpp01.stanford.edu/primarydocuments/Vol5/11May1959_AddressattheReligiousLeadersConferenceon11May1959.pd

f. 

5 See, e.g., “Anti-LGBT Bills Introduced in 28 States,” Human Rights Campaign, March 24, 2015, available at

http://www.hrc.org/blog/anti-lgbt-bills-introduced-in-28-states and “Wave of Anti-LGBT Bills in 2015 State 

Legislative Sessions,” Human Rights Campaign, available at http://hrc-assets.s3-website-us-east1.amazonaws.com//files/assets/resources/2015_StateLegislation-Document_3_23.pdf. For a summary of 2015 state 

bills in related areas, see “Anti-LGBT Religious Refusals Legislation Across the Country: 2015 Bills,” American 

Civil Liberties Union, available at https://www.aclu.org/anti-lgbt-religious-refusals-legislation-across-country-2015-

bills. 

6 See, e.g., “Anti-LGBT Religious Exemption Legislation Across the Country,” American Civil Liberties Union, 

available at https://www.aclu.org/anti-lgbt-religious-exemption-legislation-across-country#rfra16. For a summary of 

2016 bills to date, see “LGBT Nondiscrimination and Anti-LGBT Bill Across the Country,” American Civil Liberties 

Union, available at https://www.aclu.org/lgbt-nondiscrimination-and-anti-lgbt-bills-across-country. See also “1 Year 

After Hobby Lobby, 5 Ways Religion has Been Used to Discriminate,” American Civil Liberties Union, June 30, 

2015, available at https://www.aclu.org/blog/speak-freely/1-year-after-hobby-lobby-5-ways-religion-has-been-useddiscriminate and “Can States Protect LGBT Freedom Without Compromising Religious Freedom?,” The Atlantic, 

Jan. 16, 2016, available at http://www.theatlantic.com/politics/archive/2016/01/lgbt-discrimination-protection-statesreligion/422730/. 

7

 Obergefell v. Hodges, 135 S.Ct. 2584 (2015). 
Commissioners’ Statements 33 

Executive Order which prohibits federal contractors from discriminating upon the basis of gender 

identity or sexual orientation8 is quite clear. Most are thinly-veiled attempts to turn back the 

clock, and will fall to constitutional challenge as overbroad and motivated by animus. 

A. 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. 

The federal government and state governments are considering so-called “First Amendment 

Defense Acts.” In most relevant part, the June 2015 federal proposal would forbid the federal 

government from taking 

any discriminatory action against a person (defined to include for-profit 

corporations), wholly or partially on the basis that such person believes or acts in 

accordance with a religious belief or moral conviction that marriage is or should 

be recognized as the union of one man and one woman, or that sexual relations are 

properly reserved to such a marriage.9

It is critical to note that some important conservative analysts oppose these acts. Among others, 

both the Cato Institute and The Volokh Conspiracy have voiced serious concerns about their 

fairness and constitutionality. Walter Olson, Senior Fellow at the Cato Institute, exposed the 

hypocrisy of the First Amendment Defense Act by highlighting that 

 

8

 Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (July 21, 2014). 

9

 H.R. 2802, sec. 3(a), 114th Cong. (2015), available at https://www.congress.gov/bill/114thcongress/house-bill/2802. 

See also S. 1598, available at https://www.congress.gov/bill/114th-congress/senate-bill/1598/text. 

Although the reference to “discriminatory action” is vague, the Act then specifies several 

examples of such action, including revoking “an exemption from taxation under section 501(a) of 

the Internal Revenue Code,” and denying “any Federal grant, contract . . . license, certification, 

accreditation, employment, or other similar position or status from or to such person.” The 

specificity of what religiously motivated actions are insulated from federal sanction and which 

punitive measures by government are barred is in quite sharp contrast to the sweeping and vague 

generalities of a scheme like RFRA or its state counterparts. [footnotes omitted.] 

Lupu, Ira C., “Moving Targets: Obergefell, Hobby Lobby, and the Future of LGBT Rights,” 7 Alabama Civ. Rts. & 

Civ. Lib. L. Rev 1, pp. 32 - 33 (2015), GWU Law School Public Law Research Paper No. 2015-15; GWU Legal 

Studies Research Paper No. 2015-15, available at

http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2373&context=faculty_publications. 

During the Presidential primary season for the 2016 election cycle, some Republican candidates either signed or 

swore fealty to following statement: “If elected, I pledge to push for the passage of the First Amendment Defense Act 

(FADA) and sign it into law during the first 100 days of my term as President.” The American Principles Project and 

Heritage Action for America proffered the pledge to all Republican candidates for consideration. See Schweppe, Jon, 

“Six Candidates Pledge to Sign First Amendment Defense Act Within First 100 Days,” The Pulse, Dec. 17, 2015, 

available at http://thepulse2016.com/jon-schweppe/2015/12/17/six-candidates-pledge-to-sign-first-amendmentdefense-act-within-first-100-days/. 
34 Peaceful Coexistence Report 

Astoundingly, the protection would run in one direction only: It would cover those 

who favor traditional definitions of marriage, while leaving those who might see 

merit in same-sex marriage or cohabitation or non-marital sex perfectly exposed to 

being fired, audited or cut off from public funds in retaliatory ways. 

... The bill would also protect trad-values folk even when they are not religiously 

motivated, while denying protection to their opposite numbers even when they 

are religiously motivated. Despite its own avowals, this isn’t actually a bill 

framed to protect religious exercise.10

Volokh Conspiracy affiliate and law professor Dale Carpenter built carefully upon Olson’s 

analysis and concluded that 

By offering government support and protection to only one set of “beliefs” (and 

necessarily to speech expressing those beliefs) in the debate over same-sex 

marriage (and the morality of sex outside such marriages), the FADA draws an 

explicit distinction based on viewpoint. Such distinctions are among the most 

disfavored ones in constitutional law because they involve government 

partisanship in favor of a particular set of ideas. 

... The First Amendment Defense Act has the special property of assailing the 

thing it purports to defend. [emphasis added.]11

State-level First Amendment Defense Act proposals have arisen as well. The dangers inherent in 

these proposals, which generally mirror the federal Act, are insidious. Targets of the 

discrimination which they seek to legitimize are not only LGBT people. Such laws could 

Shield those who would refuse service not only to same-sex couples but to anyone 

they disapprove of, including interracial, interfaith or remarried couples. 

... For instance, [these state Acts could] offer a blanket defense to a domesticviolence shelter that might reject a single mother and her child because of her 

marital status. Georgia has no state laws protecting gays and lesbians against 

discrimination in housing or employment, but even in Atlanta, which does have 

 

10 Olson, Walter, “Gay Marriage and Religious Rights: Say Nada to FADA,” Newsweek, Sept. 10, 2015, available at

http://www.newsweek.com/gay-marriage-and-religious-rights-say-nada-fada-370860. 

11 Carpenter, Dale, The Volokh Conspiracy, “More Criticism of the First Amendment Defense Act From the Right,” 

The Washington Post, September 10, 2015, available at https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/09/10/more-criticism-of-the-first-amendment-defense-act-from-the-right/.
Commissioners’ Statements 35 

such protections, the bill would allow a hospital to prohibit a gay man from 

visiting his sick husband based on its religious views.

12

Georgia passed such a measure in March 2016.13 That same month, the Republican-controlled 

Missouri Senate adopted its version after a Democratic filibuster of approximately thirty-seven 

hours.14 Hawaii, Illinois, Oklahoma, and Washington State are considering similar measures.15

B. Some states are actively considering adopting or strengthening laws modeled after the 

federal Religious Freedom Restoration Act in an effort to eviscerate 

nondiscrimination protections. 

The federal Religious Freedom Restoration Act of 1993 (“RFRA”) reinforces First Amendment 

protections from government intervention by clarifying that, in order to pass constitutional 

muster, a federal law impacting religious Free Exercise Clause rights must be narrowly tailored 

to further a compelling government interest. RFRA does not protect American’s Establishment 

Clause freedoms.16

Proponents of new attempts to place religious liberty above other nondiscrimination laws and 

principles on a wholesale basis are certainly emboldened by an overly broad interpretation of the 

U.S. Supreme Court’s holding in Burwell v. Hobby Lobby.17

As the Commission found, 

In ... Hobby Lobby Stores, Inc., ... the U.S. Supreme Court recently affirmed the 

narrowness of the analytical framework within which claims of government 

 

12 “A Georgia Bill Shields Discrimination Against Gays,” The New York Times, Feb. 26, 2016, available at

http://www.nytimes.com/2016/02/27/opinion/a-georgia-bill-shields-discrimination-againstgays.html?smprod=nytcore-iphone&smid=nytcore-iphone-share&_r=0. 

13 See, e.g., “Georgia Legislature Passes Controversial Religious Freedom Bill,” Jurist, March 18, 2016, available 

at http://jurist.org/paperchase/2016/03/georgia-legislature-passes-controversial-religious-freedom-bill.php. 

Whether or not Republican Governor Nathan Deal will sign the bill is unclear at the time of this writing. Governor 

Deal “has made clear that he will not sign a bill that allows discrimination,” but the parameters of what he considers 

to be discrimination for this purpose are unclear. See, e.g., “Georgia Lawmakers Pass Anti-Gay ‘Religious Liberty’ 

Bill,” The Huffington Post, March 17, 2016 available at http://www.huffingtonpost.com/entry/georgia-religiousliberty-bill_us_56ea4d96e4b0b25c91847e5e. 

14 “Missouri Religious Exemption Measure Advances,” ABC News, March 9, 2016, available at

http://abcnews.go.com/US/wireStory/democrats-blocking-missouri-religious-objections-measure-37511652. See also

“Missouri Senators Filibuster ‘Religious Freedom” Bill,” CNN, March 9, 2016, available at

http://www.cnn.com/2016/03/08/politics/missouri-religious-freedom-bill-filibuster/index.html. 

15 “Anti-LGBT Religious Exemption Legislation Across the Country,” American Civil Liberties Union, supra note 

6. 

16 Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. sec. 2000bb - bb-4; see also

USCCR Report, supra note 1, Findings 5 and 6, at 26. 

17 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). 
36 Peaceful Coexistence Report 

interference with the free exercise of religion must be construed under RFRA. 

The Court also affirmed that meticulous factual inspection is necessary in the 

process of adducing - or rejecting - RFRA exceptions to civil liberties and civil 

rights protections.18

In 2015, seventeen states addressed legislation aimed at creating or modifying religious 

exemption laws modeled after RFRA.19 As of early 2016, twenty-two states have antidiscrimination laws that cover LGBT people, twenty-one states have RFRAs, and only four have 

both. [footnotes omitted.]20 As of the first quarter of 2016, at least thirteen states were 

considering adding or amending RFRA-style laws.21 

 

18 USCCR Report, Finding #7, supra at 26. 

In an ironic twist, however, Hobby Lobby may turn out to be a friend of the LGBT rights 

movement. The decision provides a principled reason to oppose statutory exceptions to new antidiscrimination laws for any and all religious objectors; if LGBT rights advocates give an inch, 

they may lose a RFRA-pushed mile. Indeed, Hobby Lobby gives LGBT rights advocates strong 

grounds to assert the necessity of a generic exclusion from antidiscrimination laws of RFRA 

claims and defenses. [footnote omitted]. 

Lupu, supra note 9 at 44. 

19 For summary charts, see, e.g., “2015 State Religious Freedom Restoration Legislation,” National Conference of 

State Legislators, September 3, 2015, available at http://www.ncsl.org/research/civil-and-criminal-justice/2015-staterfra-legislation.aspx; “LGBT Policy Spotlight: State and Federal Religious Exemptions and the LGBT Community,” 

Movement Advancement Project, available at http://www.lgbtmap.org/file/policy-spotlight-report-RFRA.pdf; and

“Anti-LGBT Religious Refusals Legislation Across the Country: 2015 Bills,” American Civil Liberties Union, supra 

note 5. 

20 In parsing out the complicated and confusing national picture, Professor Lupu went on to say that 

The arithmetic is simple - thirty-nine states have one or the other but not both (22 + 21, minus the 

overlap of 4). That means eleven states have neither a RFRA nor a state-wide LGBT antidiscrimination law. ... In March 2015, in Utah, the prominent and influential Church of Jesus 

Christ of Latter Day Saints joined with LGBT rights groups to present a compromise package, 

which soon became law. [footnotes omitted.] 

Lupu, supra note 9 at 50 - 51. See also “State Religious Exemption Laws,” Movement Advancement Project, 

available at http://www.lgbtmap.org/equality-maps/religious_exemption_laws. 

For more information on the particularly contentious fight in Indiana, see “Live Updates: How the LGBT Rights 

Debate Played Out,” IndyStar, Jan. 28, 2016, available at 

http://www.indystar.com/story/news/politics/2016/01/27/live-updates-lgbt-rights-take-center-stagestatehouse/79359738/; “Indiana’s LGBT Civil Rights Debate is Far From Over Despite Failure of Senate Bill 344,” 

The Elkhart Truth, Feb. 16, 2016, available at http://www.elkharttruth.com/news/politics/IndianaBuzz/2016/02/16/Indiana-s-LGBT-civil-rights-debate-is-far-from-over-despite-failure-of-Senate-Bill-344.html. 

21 “Anti-LGBT Religious Exemption Legislation Across the Country,” American Civil Liberties Union, supra note 

6. 
Commissioners’ Statements 37 

C. 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. 

As of early 2016, at least five state legislatures - AL, FL, NE, OK, and UT - were considering 

limiting the rights of LGBT people’s rights to adopt children and/or to provide foster care based 

upon the religious beliefs of the child-placing agencies.22 Some legislators are asserting, in the 

name of the newly-minted concept of “marriage sovereignty,”23 that while Obergefell requires 

the state to give same-sex couples civil marriage licenses, it does not mandate that the state allow 

permanent or temporary placement of children with LGBT families.24 The timing of these 

claims, and the rhetoric being used to advocate for them, bolster the conclusion that they are 

suspect and will be viewed as constitutionally infirm if enacted. 

III. Wholesale religious exemptions threaten access to reproductive health and endanger 

women’s lives. 

As noted below in Section IV, Members of Congress recently wrote to the Attorney General 

regarding the 2007 DOJ OLC memorandum addressing RFRA exemptions referred to instances 

in which it is being used to argue for the supremacy of religious exemptions over access to 

reproductive health care.25 The refusal to provide certain reproductive health services violates the 

Emergency Medical Treatment and Active Labor Act.26 One can only hope that Congress cannot 

have intended RFRA to justify suffering and to endanger human life. 

IV. The Religious Freedom Restoration Act, which was born of a strongly bipartisan 

effort, has become highly politicized and a source of discriminatory overreach which 

must be curtailed. 

A coalition of progressives and conservatives led the charge for the passage of the initial version 

of RFRA in response to U.S. Supreme Court decisions limiting the religious freedom rights of 

 

22 See, e.g., “Anti-LGBT Religious Exemption Legislation Across the Country: 2016 Bills,” American Civil Liberties 

Union, available at https://www.aclu.org/anti-lgbt-religious-exemption-legislation-across-country#adoptfost16;

“Utah Panel Blocks Bill to Ensure LGBT Equality in Adoption, Foster Care,” The Salt Lake Tribune, Feb. 24, 2016, 

available at http://www.sltrib.com/home/3577298-155/utah-panel-blocks-bill-to-ensure; and “Utah House Panel 

Rejects Gay Couples Adoption, Foster Care Bill,” KSL.com, Feb. 24, 2016, available at

https://www.ksl.com/?sid=38635124&nid=148. 

23 “GOP Lawmaker Pushes ‘Religious Freedom’ to Kill Bill Allowing Gays Equal Adoption Rights,” The New Civil 

Rights Movement, Feb. 24, 2016, available at 

http://www.thenewcivilrightsmovement.com/davidbadash/gop_lawmaker_continues_assault_on_same_sex_couples_

blocks_bill_allowing_gays_equal_adoption_rights. 

24 See, e.g., “Utah Lawmakers Use Religious Freedom Argument to Kill Same-Sex Adoption Bill,” Fox13 Salt Lake 

City, available at http://fox13now.com/2016/02/24/utah-lawmakers-use-religious-freedom-argument-to-kill-samesex-adoption-bill/. 

25 See infra n. 32 at 38. 

26 42 U.S.C. § 1395dd. 
38 Peaceful Coexistence Report 

Native Americans.27 At the Commission noted in its Report, RFRA passed the Senate by 97-3 

and garnered no “nay” votes in the House.28

However, subsequent conservative manipulation of RFRA’s intent set the stage for the 

undermining of its bipartisan support and for turning what was intended to be a shield into a 

sword. In 2007, President George W. Bush’s Department of Justice Office of Legal Counsel 

(“OLC”) authored a memorandum encouraging an overbroad interpretation of RFRA - one which 

favored religious liberties in hiring over other civil rights considerations.29 This interpretation is 

in strong contravention to the Commission’s findings and recommendations. 

Almost five dozen widely diverse non-governmental organizations (“NGOs”) wrote to President 

Obama’s Attorney General Eric Holder in 2009 requesting withdrawal of that memorandum.30 In 

2015, 130 NGOs wrote directly to President Obama requesting the same.31 Four Members of 

Congress issued the most recent plea for the Administration’s assistance in recognizing the 

dangers of this Memorandum, and “undertak[ing] a review and reconsideration” when they 

wrote to U.S. Attorney General Loretta Lynch on February 22, 2016. They express being 

“deeply concerned that the OLC opinion is being cited with increasing frequency to protect 

discriminatory employment practices....”32

 

27 See, e.g., Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), and Employment 

Division v. Smith, 494 U.S. 872 (1990). 

28 USCCR Report, supra note 1 at 7. 

29 “Application of the Religious Freedom Restoration act to the Award Of a Grant Pursuant to the Juvenile Justice 

and Delinquency Prevention Act," Memorandum Opinion for the General Counsel Office of Justice Programs, U.S. 

Department of Justice Office of Legal Counsel, June 29, 2007, available at

http://www.justice.gov/sites/default/files/olc/opinions/2007/06/31/worldvision.pdf.

30 “Request for Review and Withdrawal of June 29, 2007 Office of Legal Counsel Memorandum Re: RFRA,” 

American Civil Liberties Union, et al., Sept. 29, 2009, available at 

https://www.aclu.org/files/images/asset_upload_file539_41040.pdf. 

31 “Request for Review and Reconsideration of June 29, 2007 Office of Legal Counsel Memorandum Re: RFRA,” 

American Civil Liberties Union, et al., Aug. 20, 2015, available at https://www.au.org/files/2015-08-20%20-

%20OLC%20Memo%20Letter%20to%20President-FINAL_2.pdf. 

32 The Members went on to state that 

Although the OLC opinion is now more than eight and half years old, it remains problematic 

because it continues to be cited to justify blanket exemptions to nondiscrimination provisions 

in federally-funded programs. Just in the last year, it has been cited to justify a number of 

religion-based exemptions to nondiscrimination provisions, including beyond the employment 

context:

LGBT Hiring Discrimination: The U.S. Conference of Catholic Bishops 

(USCCB) cited the OLC opinion to argue that federal contractors with

religious objections should be permitted to fire and refuse to hire LGBT 

people - in direct defiance of President Barack Obama’s historic Executive 

Order barring such discrimination - and continue to be awarded contracts from 

the government. [footnote omitted.] 
Commissioners’ Statements 39 

The calls for review and reconsideration of the 2007 OLC memorandum must be heeded. The 

Administration should withdraw the memorandum which is used to justify attempts to allow 

religious freedoms to step too heavily on other nondiscrimination laws and policies. That the 

Administration would seek to give protections and services with one hand while potentially 

allowing them to be compromised with the other is of concern. 

V. Once the current tide of legislative proposals ebbs, vigilance still will be needed. 

Regardless of the pace at which American religious institutions do or do not embrace the reality 

of civil rights and liberties of LGBT families and of women, religious exemptions to them are, 

and must remain, few and narrow. 

Laws which permit discrimination, even if enacted on the basis of religious freedom, are unlikely 

to be successful when challenged on Constitutional bases. Professor Ira C. Lupu of the George 

Washington University Law School posits that 

it is hard to imagine a federal court ... find[ing] any constitutionally legitimate 

basis for any formal policy of exclusion, based on sexual orientation, from state 

created opportunities. Whether the policy is based on prejudice, animus, or 

sincere religious belief, it rests on reasons that the state is forbidden to pursue. 

[footnotes omitted.]33

Some of the many overly-broad religious freedom legislative proposals discussed above will be 

 Refusal to Provide Government-Funded Healthcare Services: The National 

Association of Evangelicals (NAE), World Vision, USCCB, and other 

organizations cited the OLC opinion to argue that recipients of certain federal 

grants are not required to provide access to reproductive health care services 

and referrals, as required by law, to unaccompanied minors who have 

suffered sexual abuse. [footnote omitted.]

Refusal to Serve Certain Patients: The Ethics & Religious Liberty 

Commission of the Southern Baptist Convention, USCCB, NAE, and others 

cited the OLC opinion to argue that RFRA guarantees them an exemption 

from the provision of the Affordable Care Act that prohibits sex

discrimination - a nondiscrimination provision that protects women and 

LGBT patients - in the provision of healthcare programs and activities.

[footnote omitted.]

Each of these religion-based exemptions, if granted, threatens to undermine the 

Administration’s own work in important policy areas and would seem to be contrary to the 

Administration’s own position against discrimination in federally-funded programs. The OLC

opinion appears to be at odds with these commitments. 

Conyers, Jr., Hon. John, Scott, Hon. Robert C., Cohen, Hon. Steve, and Nadler, Hon. Jerrold, “Letter to the 

Honorable Loretta E. Lynch, Attorney General of the United States,” Feb. 22, 2016, available at

http://democrats.judiciary.house.gov/sites/democrats.judiciary.house.gov/files/Letter-

%20AG%20Lynch%20%20re%20OLC%20%20RFRA%202.22.16.pdf. 

33 Id. at 6 - 7. 
40 Peaceful Coexistence Report 

enacted, some will be defeated, and some will languish in committee. Many will face 

constitutional challenge and will be overturned by the courts. Nonetheless, the fervent 

ideological disagreements will continue. Therefore, government officials, advocacy groups, and 

concerned individuals, as well as persons of faith and of good will,34 must remain alert and ready 

to combat future efforts. Nondiscrimination laws stand as a bulwark against the assaults of 

intolerance and animus. May it always be so. 

 

34 Despite Obergefell’s nod to the existence of good faith religious opinion against same sex marriage, religious 

objections to same sex intimacy will ultimately retain no more respect than religious objections to racial integration 

and inter-racial intimacy. In a nation committed to a more Perfect Union, the arc of the religious universe is long, but 

it too bends toward justice. [footnotes omitted.] 

Lupu, supra note 9 at 69 - 70. 
Commissioners’ Statements 41 

Commissioner Karen K. Narasaki Statement 

Enshrined in the First Amendment to our Constitution, the right to exercise one’s religion free 

from government interference is an essential civil and human right firmly embedded in the core 

of our country’s DNA. 

Also enshrined in our Constitution is the fundamental principle that all persons are guaranteed 

equal protection under the law. Life, liberty and the pursuit of happiness, inalienable rights 

proclaimed by our founders in the Declaration of Independence, are unattainable if one cannot 

live free from discrimination and be treated fairly under the law. 

While many people of faith have been an inspirational force for change and equality in our 

country, others hold to religious practices that may result in continued prejudice and 

discrimination against others. The First Amendment is a shield that ensures a diversity of 

religious views are allowed to flourish in the U.S. However, there are some seeking to make the 

right to exercise their religion a sword that can be used against others who do not conform with 

their interpretation of their faith. 

As a report by the Leadership Conference Education Fund notes, “Freedom of religion, like 

freedom of speech and other constitutional rights, is not absolute: one person’s religious liberty 

does not give him or her the right to harm another person or impose their religious beliefs or 

practices on someone else.”1

 Great care must be taken to ensure that claims of religious liberty, 

however sincerely held, do not become a license to discriminate. 

Recent advances in the recognition of the rights of LGBT individuals, such as the Supreme 

Court’s marriage equality decision in Obergefell v Hodges, have prompted some lawmakers and 

individuals to seek and expand religious exemptions to allow individuals and businesses to 

continue to discriminate against LGBT individuals at the marriage license office, in the 

workplace, and in places of public accommodations like businesses, hotels and restaurants. This 

development is a step backwards in the effort to guarantee equal access and opportunity for all 

Americans. 

The findings and recommendations in this report reflect the consideration needed to ensure that 

any religious exemption does not unduly burden nondiscrimination laws and policies. Religious 

freedom is a fundamental value, and so is the ideal that all persons should live free from 

discrimination.

 

1 Leadership Conference Education Fund, Striking a Balance: Advancing Civil and Human Rights While Preserving 

Religious Liberty 3 (2016), available at http://civilrightsdocs.info/pdf/reports/2016/religious-liberty-reportWEB.pdf. 
42 Peaceful Coexistence Report 

Commissioner Peter Kirsanow Statement 

The subject of this briefing was the tension between nondiscrimination principles and religious 

liberty. The majority has resolved this tension resoundingly in favor of nondiscrimination. 

I will address five prominent issues that involve this tension: secularism and religion, HosannaTabor v. EEOC, same-sex marriage, the HHS mandate, and Christian student groups. An 

additional commonality among the latter three issues is that they all involve issues of sexual 

behavior or sexual identity. I will address the majority’s findings and recommendations 

separately. 

The conflict between religious liberty and nondiscrimination principles is profound. The 

passions involved may be fiercer than in any civil rights struggle since the 1960s, as both sides’ 

ultimate commitments are implicated. This debate will likely dominate civil rights discourse for 

at least a generation. And regardless of the outcome, we may emerge a very different country 

than the one we have been. 

This statement will primarily focus on conflicts between Christian beliefs, believers and 

nondiscrimination principles because the conflicts mentioned above have primarily involved 

Christians.1

 However, there is no reason why similar conflicts between other religious beliefs 

and nondiscrimination principles could not arise. Oddly enough, it is possible that Christianity is 

particularly vulnerable because it is both the majority religion and espouses certain principles 

about sexuality that are unpopular among both committed secularists and the population at large. 

Some secular elites seem to frown on any criticism of minority religions that adhere to many of 

the same moral standards as Christianity, yet despise much of what is associated with the religion 

of their forebears. 

The tension between nondiscrimination principles 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.2

 This assumption is erroneous. Religious liberty is an undisputed constitutional 

right. With the exception of racial nondiscrimination principles embedded in the Thirteenth, 

Fourteenth, and Fifteenth Amendments, nondiscrimination principles are statutory or judiciallycreated constructs.3

 

1

 Gudrun Kugler, Opinion to the U.S. Commission on Civil Rights: Equality or Anti-Discrimination Legislation vs. 

Civil Liberties (Apr. 22, 2013) (on file with the Commission), at 2 (“Equal treatment legislation is phrased in an 

impartial way. But experience shows it is very often Christians who are taken to court.”). 

2 See Chai R. Feldblum, Moral Conflict and Conflicting Liberties, in SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY:

EMERGING CONFLICTS 123-24 (Douglas Laycock, Anthony R. Picarello, and Robin Fretwell Wilson, eds., 2008). 

3

 David E. Bernstein, You Can’t Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws 14 

(2003). 
Commissioners’ Statements 43 

The tension between religious liberty and nondiscrimination principles appears most acute when 

religious liberty and sexual liberty conflict. There are at least two ways of conceptualizing the 

conflict. The first is as a conflict between two rights-the right to be served without discrimination 

based on one’s sexual orientation, and the right to manifest one’s religious beliefs by choosing 

whom to serve. The second is whether religious believers should receive exemptions from neutral 

laws of general applicability. 

But the conflict goes deeper. It is a conflict between two worldviews, both held with the 

intensity generally associated with religious belief.4

 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.5 This interest in the individual is now construed as a positive responsibility to 

 The Civil War amendments do not purport to guarantee substantive equality, much less to override the First 

Amendment. The Thirteenth Amendment abolished slavery, the Fourteenth Amendment required states to provide all 

persons with equal protection of the laws (not equality per se), and the Fifteenth Amendment guaranteed African 

Americans the right to vote. None of the Civil War amendments established a right to be free from private-sector 

discrimination. 

4

 Most Reverend Philip Egan, Bishop of Portsmouth in the United Kingdom, Irrelevant? Should Christianity Still 

Have a Voice in the Public Square?, Kings College London, Mar. 6, 2014, at 1, 2, available at

http://www.portsmouthdiocese.org.uk/bishop/docs/BoP-140306-talk.pdf. 

[S]ecularism is more an attitude or atmosphere than fully worked-out system of thought. Yet essentially, secularism 

means a concern with the saeculum, the world, this world rather than the next. It is about living, at least in public, 

without religion and its ‘sacred canopy.’ Secularism has a political dimension: the principle that Church and state, 

religion and politics, must be strictly separated. In other words, to protect the equality of every citizen in a pluralist 

society, politicians and policy makers adopt a neutral attitude toward religious groups and personal life-style choices, 

as long as behaviour remains within the law. Religion - beliefs about the meaning of life, the morally good, God and 

life after death - are strictly ring-fenced as matters of public opinion. ... 

... Yet essentially, perhaps surprisingly, secularism is a Christian heresy. It is a deconstructed version of Christian 

morality, a set of second-order Christian values shorn from their theological moorings, a form of post-Christian ethics 

that thrives because its values continue to derive their vitality from the Christian patrimony ... If religion is defined as 

belief in a deity, with a moral code based on that belief, and a theology that interprets it, then secularism is a reversed 

religion. Its core belief is doubt; its moral code is a way of life as if God does not exist; its theology is about being 

human. It even has its own theological terms such as equality, diversity, freedom, respect, tolerance, nondiscrimination, multiculturalism, social cohesion, ethnic communities, inclusivity, quality of life, sustainable 

development and environmentalism. All of these values are derived from fundamental Christian values. Thus, the 

secular concern for tolerance comes from the biblical ‘love of neighbour’ but, disconnected from Christian practice 

and belief, it has become a soft value, free-wheeling, expanded with new meaning, now permitting what formerly was 

unlawful. 

5

 Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 851 (1993). 

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family 

relationships, child rearing, and education. Our cases recognize “the right of the individual, married or single, to be 

free from unwanted government intrusion into matters so fundamentally affecting a person as the decision whether to 

bear or beget a child” (emphasis in original). Our precedents “have respected the private realm of family life which 

the state cannot enter.” These matters, involving the most intimate and personal choices a person may make in a 

lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth 

Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, and of the 

mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed 

under the compulsion of the State [citations omitted]. 
44 Peaceful Coexistence Report 

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.6

 

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.7

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. Moral standards of behavior are external to a person, not internal. 

Therefore, even though people, including religious believers, fall short of these standards, they 

do not have the authority to change the standards.8

 Furthermore, it is a sin to assist another 

 Ironically, in the realm of abortion, the justices conflate “belief” and “conduct,” the very thing the partisans of 

nondiscrimination urge the justices not to do in the case of religious liberty. After all, the law at issue in Casey 

restricted the individual’s right to believe whatever he wanted about abortion and defining one’s own concept of 

existence was completely untouched. The law only affected conduct. 

6

 U.S. Commission on Civil Rights, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil 

Liberties, Mar. 22, 2013, at 100 [hereinafter “Transcript”] (“sexual orientation is a fixed and core aspect of a gay or 

lesbian person’s identity. . . . Neither gays, nor lesbians, nor devoutly religious individuals can reasonably be required 

to separate their conduct from their identity”). 

7

 John M. Finnis, Religion and State: Some Main Issues and Sources, 51 AM.J. OF JURISPRUDENCE 107, 113-14 

(2006), available at

http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1862&context=law_faculty_scholarship. 

[S]elf-determination is now regarded, not least among our constitutional lawyers, as a form, not so much of shaping 

up as best one can to what one judges in conscience to be reason’s demands on one, but rather as the bundling of 

one’s strong desires, one’s “deep concerns,” most considerable when most passionate. In such a line of thought 

(formalized within a year or two of Casey), religion is doubly discredited, first by the casual assumption that it is 

outside the domain of reason, and then by its hostility to its unwelcome critiques of and constraints upon “deep” 

desires. Its place in the constitution can be accepted only grudgingly as a historical relic and a monument to the threat 

that religions characteristically have posed to each other as well as to everyone’s “conscience” (reconceptualized as 

the articulation of their “deep concerns”). 

8

 Alvin Plantinga, Where the Conflict Really Lies: Science, Religion, and Naturalism 154 (2011). 

Once you have established, as you think, what God is teaching in a given passage, what he is proposing for our belief, 

that settles the matter. You do not go on to ask whether it is true, or plausible, or whether a good case for it has been 

made. God is not required to make a case. 

See also John Finnis, NATURAL LAW AND NATURAL RIGHTS 404-05 (2011). 

But those who claim to know what God wills in some human context, and that that will should be obeyed, are (as I 

have said) going beyond what can be affirmed about D on the basis of philosophical argumentation. They are 

claiming (like Plato, but relying unlike him upon some definite revelation) that God positively favours both the basic 

goods and human adherence to the principles and requirements of practical reasonableness in the pursuit of those 

goods; that the evils and disorders of this world are not favoured so, but are merely tolerated by God for the sake of 

some positive good (what, and how attained, we do not know); and that friendship with God, some sharing in God’s 

life and knowledge and love-of-goods, is available to those who positively favour what God positively favours. In the 

context of such beliefs-and it is only in such a context that claims about the authoritativeness of God’s will for man 

are plausibly made-the question ‘Why should God’s will be obeyed?’ has no bite. 
Commissioners’ Statements 45 

person in breaking the moral law, or to applaud breaking the moral law. In a predominantly 

Judeo-Christian society, this worldview is most closely reflected in the Ten Commandments. 

Although believers realize that they break the Ten Commandments both through what 

Christians often call “sins of omission” and “sins of commission,” they are not free to change 

“Thou shalt not bear false witness” to something more congenial. Instead, they are told to 

repent of their sin and to try to avoid repeating it. 

This is the nub of the conflict between the proponents of nondiscrimination norms and 

proponents of constitutionally-protected religious liberty. 

I. Secularism and Religion 

In The Rise and Decline of American Religious Freedom, Steven Smith argues that the American 

project has been subject to two interpretations - the secular and the providentialist.9 Both 

interpretations commanded the allegiance of various statesmen. Madison and Jefferson adhered to 

the secularist view (though as Smith points out, both inclined more to the providentialist view 

than do many of their ideological heirs) and Washington and Lincoln adhered to the 

providentialist view.10 During America’s first century and a half of existence, both sides 

accepted the other’s legitimacy and accepted that in some times and places one interpretation or 

the other would dominate. There was no definitive determination, Smith says, as to which 

interpretation was correct, but that was both the purpose and the genius of the First Amendment. 

Smith argues that this settlement ended, however, with the Supreme Court’s decisions in Engel 

v. Vitale and Abington School District v. Schempp.

11 Part of the reason for the settlement’s 

demise was because the meaning of terms had shifted without anyone really noticing.12 Another 

reason was the increasing cultural divide between secularists and providentialists. The academy 

and the courts became increasingly committed to the secular interpretation, but large portions of 

the American public remained committed to the providentialist interpretation. Additionally, the 

secularists had arguably become more secular, if not outright hostile to religion, since the days of 

Jefferson.13 The disagreement between the current views of secularists and providentialists is 

deep, but the extent of the disagreement probably was not recognized by either side until after 

Engel v. Vitale.

14

 

9

 Steven D. Smith, The Rise and Decline of American Religious Freedom 9 (2014). 

10 Id. at 9, 85-94. 

11 Id. at 114. 

12 Id. at 111-113. 

13 Id. at 117. Smith notes that it was Jefferson who wrote “Almighty God hath created the mind free.” 

14 Id. at 120-21. 

Bruce Dierenfield reports that the first of these decisions, Engel v. Vitale, provoked “the greatest outcry against a U.S. 

Supreme Court decisions in a century” (a century that had included Brown v. Board of Education). . . . 
46 Peaceful Coexistence Report 

Not only do the secularists believe the providentialists are wrong, but, Smith says, they regard 

the providentialist view as a heresy.15 Naturally, the heretics vehemently disagree. 

One reason for the bitterness surrounding the debate is that the secularists tend to make their 

interpretation mandatory for society. Because they consider the providentialist view a heresy, and 

often regard the non-elite adherents of the providentialist view with disdain, they are unwilling to 

allow different views to exist in different places. Thus, the cases of secularists suing local 

governments to force them to remove a crèche, or end a town’s legislative prayer, or forbid 

student prayers before graduation, are legion. On the other hand, the idea that a Baptist preacher 

would sue a town council to force it to institute legislative prayer is risible. Neither do the 

committed secularists accept that it might be constitutionally acceptable for the people of 

Burlington, Vermont not to have school prayer and the people of Jackson, Mississippi to have 

school prayer - and that if you live in either city and are so bothered by the local practice that 

you simply cannot tolerate it, you should either move to a more congenial city or put your child 

in private school. 

Furthermore, although the secularist project has intellectual roots that go back to the country’s 

Founding, the realization of its vision entails a radical transformation of American society. This 

was well-expressed in the Obama administration’s position in Hosanna-Tabor that there was no 

“ministerial exception” to the nondiscrimination laws. It is also exemplified in the decades-long 

crusade to remove the Mount Soledad cross from a California veterans memorial (in that case, the 

Department of Justice has weighed in on the side of the cross).16 It requires purging the public 

 And yet, revealingly, this reaction evidently came as a surprise to the justices themselves. . . . The justices who joined 

in the decisions, as well as many of their supporters, evidently viewed the decisions not only as continuous with longstanding constitutional principles but as relatively narrow in their implications. . . . 

Conversely, impassioned critics, including many ordinary Americans citizens, saw the decisions as radical and 

transformative. Here the understandings of the cultural elite and less privileged Americans parted: thus John Jeffries 

and James Ryan observe that “the controversy over school prayer revealed a huge gap between the cultural elite and 

the rest of America. 

15 Id. at 123. 

[T]he elevation of the secularist interpretation was a change - and a momentous one at that. . . . 

[Previously], Americans could believe and assert either secular or providential interpretations of the Republic, as 

seemed to them right, and they could elaborate and act on those interpretations with respect to whatever the local 

issues might be: school prayer, Sunday mail delivery, whatever. Both kinds of interpretations were constitutional (in 

the soft sense); neither was Constitutional (in the hard sense). . . . 

The modern Supreme Court seemingly failed to understand this complex strategy; in any case, the Court tacitly 

repudiated it. In effect, by elevating the secularist interpretation to the status of hard Constitutional orthodoxy, the 

Court placed the Constitution itself on the side of political secularism and relegated the providentialist interpretation 

to the status of a constitutional heresy. 

16 Chelsea J. Carter, Obama attorneys: Cross atop California war veterans memorial is ‘appropriate’, CNN, Apr. 10, 

2014, available at http://www.cnn.com/2014/04/10/justice/california-cross-battle/. 
Commissioners’ Statements 47 

square of religious symbols, denying the validity of public policy with religious origins, and 

ending long-standing public religious practices. 

In some cases, the Court has proved unwilling to force Americans to abandon traditional 

practices. In Town of Greece v. Galloway, the Court held that it did not violate the Establishment 

Clause for people giving a prayer before a town meeting to use language specific to their 

religious tradition.17 The Court had previously ruled that legislative prayer is constitutional18, 

and requiring all prayer-givers to use non-sectarian language was neither constitutionally 

required nor feasible.19 Nor was the town required to engage in religious bean-counting to avoid 

having predominantly Christian prayer-givers since it had a nondiscrimination policy.20 Even if 

you have a nondiscrimination policy, if your town is overwhelmingly peopled by Christians, 

most of your prayer-givers will probably be Christians, and you can still open your meetings 

with a prayer. 

Still, the providentialists are embattled. The secularists have been the aggressors and often use 

the courts, corporations, public officials from other jurisdictions, the news media, and social 

media mobs to impose policies that lack democratic support in the affected communities, either 

through court orders or by bullying public officials into submission. Many Americans would 

simply like to be left alone to follow their traditional practices regarding the public expression of 

religious sentiments, but are stymied by collaboration between secularist elites who enforce a sort 

of “heckler’s veto” against the majority in an unfashionable community. Yes, the Constitution 

protects the rights of minorities, but it also protects the rights of the majority. It may be far better 

to minimize the number of disputes that are elevated to Constitutional confrontation, and instead 

allow the democratic process to work out compromises at the local level. 

Religious believers have also been put at a disadvantage by the secularist contention that 

religious reasons for supporting particular policies are per se inadmissible. This represents an 

embrace of Rawls’ idea that only “public reason,” that is, reasons that are not based on a 

comprehensive doctrine such as religion, may be used in political discourse.21 Only public reason 

may be used, Rawls says, even if appealing to reasons rooted in a comprehensive doctrine would 

persuade fellow citizens to share your position,22 unless appealing to reasons rooted in religion 

advances preferred policies.23 This disingenousness is characteristic of much public discourse 

 

17 Town of Greece, N.Y. v. Galloway, 134 S.Ct. 1811 (2014). 

18 Marsh v. Chambers, 463 U.S. 783 (1983). 

19 Town of Greece, 134 S.Ct. at 1822-23. 

20 Id. at 1824. 

21 John Rawls, POLITICAL LIBERALISM 224-25 (2005). 

22 See id. at 216-220. 

23 Id. at 251. 
48 Peaceful Coexistence Report 

today. Political positions rooted in moral judgments opposed by secularists are invalid, especially 

anything to do with sexual liberty, but it is perfectly fine if moral judgments are invoked to 

support their favored political positions, such as amnesty for illegal immigrants. 

A version of this approach seems to have been adopted by political and cultural elites. This of 

course tips the scales in their favor. Defining public reason as encompassing only “presently 

accepted general beliefs and forms of reasoning found in common sense, and the methods and 

conclusions of science when these are not controversial” while explicitly excluding reasons based 

in religion means that what seems like “common sense” to the secular and what seems like 

“common sense” to the religious can be two very different things. Yet only the former is 

regarded as legitimate in public debates. For example, a devout Christian may regard it as 

“common sense” that marriage is between a man and a woman, in large part because that is the 

pattern laid out in the Bible. A secularist may consider it “common sense” that marriage is 

between two people who share a deep emotional attachment, and point to the benefits of having 

someone to care for you in illness, etc. And indeed, as mentioned above, secularism has its own 

commandments and shibboleths, though it is rarely viewed that way by its adherents.24 Yet only 

one of these two versions of “common sense” is regarded as legitimate by our political system, 

even if the former would be persuasive to a large number of people.25 In some cases, courts have 

even implied that because some people favored a particular policy for religious reasons, the 

entire enterprise is tainted by animus and thus is unconstitutional.26 In fact, there are really two 

 On this account the abolitionists and the leaders of the civil rights movement did not go against the ideal of public 

reason; or rather, they did not provided they thought, or on reflection would have thought (as they certainly could 

have thought), that the comprehensive reasons they appealed to were required to give sufficient strength to the 

political conception to be subsequently realized. . . . The abolitionists could say, for example, that they supported 

political values of freedom and equality for all, but that given the comprehensive doctrines they held and the doctrines 

current in their day, it was necessary to invoke the comprehensive grounds on which those values were widely seen to 

rest. Given those historical conditions, it was not unreasonable of them to act as they did for the sake of the ideal of 

public reason itself. 

24 See supra note 4. 

25 Obergefell v. Hodges, 135 S.Ct. 2584, 2607 (2015). 

[R]eligions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction 

that, by divine precepts, same-sex marriage should not be condoned. . . . In turn, those who believe allowing same-sex 

marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those 

who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to 

bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. 

26 Perry v. Schwarzenegger, 704 F.Supp.2d 921, 973, 985 (N.D. Cal. 2010). 

 Whether the Evidence Shows that Proposition 8 Enacted a Private Moral View Without Advancing a Legitimate 

Government Interest . . . 

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays 

and lesbians. . . . 

e. Tr. 395:14-18 (Chauncey: Many clergy in churches considered homosexuality a sin, preached against it and have 

led campaigns against gay rights.); 
Commissioners’ Statements 49 

clashing moralities in play, especially in regard to same-sex marriage, but the courts choose one 

over another while pretending to be neutral.27 It is permissible for a pro-same-sex marriage 

campaign to be animated by the belief that same-sex marriage is morally good, but it is 

impermissible for a pro-traditional marriage campaign to be animated by the belief that same-sex 

marriage is morally wrong.28

As Steven Smith notes, religious believers have tried to adapt to this change in public discourse, 

but realize that many of their beliefs defy glib secular rationalization.29 “Finding these secular 

rationales implausible, advocates on the secular side often respond by accusing their opponents of 

obscurantism and hypocrisy: the ostensible secular rationales are dismissed as mere pretexts for 

religious reasons or motivations. Justices themselves sometimes join in the demonizing and the 

mockery.”30 Naturally this leads to resentment and a sense that the game is rigged. 

 g. PX2853 Proposition 8 Local Exit Polls—Election Center 2008, CNN at 8: 84 percent of people who attended 

church weekly voted in favor of Proposition 8; 

r. Tr. 2676:8-2678:24 (Miller: Miller agrees with his former statement that “the religious characteristics of 

California's Democratic voters” explain why so many Democrats voted for Barack Obama and also for Proposition 

8.). 

27 Id. at 1002. 

A Private Moral View That Same-Sex Couples are Inferior to Opposite-Sex Couples is Not a Proper Basis for 

Legislation 

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in 

the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex 

couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or 

simply a belief that a relationship between a man and woman is inherently better than a relationship between two men 

and two women, this belief is not a proper basis on which to legislate. [citations omitted] 

28 Perry v. Schwarzenegger, 704 F.Supp.2d 921, 937-38 (N.D. Cal. 2010). See also U.S. v. Windsor, 133 S.Ct. 2675, 

2692-96 (2013) (Kennedy, J.) (characterizing New York’s decision to permit same-sex marriage as “a proper exercise 

of its sovereign power” that “For same-sex couples who wished to be married, the State acted to give their lawful 

conduct a lawful status. . . . deemed by the State worthy of dignity,” whereas Congress and President Clinton’s 

decision to, for federal purposes, define marriage as opposite-sex was intended to “impose a disadvantage, a separate 

status, and so a stigma” because its purpose was ‘protecting the traditional moral teachings reflected in heterosexualonly marriage laws.’” [citations omitted]). 

29 Smith, supra note 9, at 126. 

And indeed, it seems likely that religious citizens, at least when in litigating posture, are sometimes less than 

forthcoming about their deeper reasons. This reticence occurs under duress, however, because under current 

constitutional understandings, it is only by adopting a secularist vocabulary that these citizens are able to participate 

in the constitutional conversation at all. And even as they attempt to defend their positions in constitutionally 

admissible terms, believers in the providential conception often feel beleaguered and alienated. How can it be, they 

wonder, that the Constitution somehow forbids officials and citizens today to assert and act on the same sorts of 

openly religious rationales that are so evident on the face of the celebrated writings, speeches, and enactments of 

Jefferson, Madison, and Lincoln? Thus Harvard law professor Noah Feldman observes that ‘constitutional decisions 

marginalizing or banning religion from public places have managed to alienate millions of people who are also 

sincerely committed to an inclusive American project.” 

30 Id. at 125. 
50 Peaceful Coexistence Report 

This sense of resentment is fed by the memory that for much of American history, religious 

reasons and arguments were freely used in political discourse. Rawls argues that during the 

Founding, Reconstruction, and the New Deal, “all three seem to rely on, and only on, the 

political values of public reason.”31 Yet earlier, Rawls himself says that “the limits of public 

reason” do not “apply only in official forums,” but rather to all political discourse by citizens.32 

Using that definition, how can one claim that public reason alone was used during the Civil War 

and Reconstruction? Reconstruction would not have taken place absent the Civil War, and absent 

a consensus formed in the North during the Civil War that slavery was evil. This consensus likely 

would not have existed absent the leadership of Abraham Lincoln, who not only invoked 

religious imagery in his oratory, but made theological arguments. Unwilling to cede much 

ground here, but also unwilling to distance himself from Lincoln, Rawls argues that Lincoln’s 

many actions referencing or appealing to God either “[do] not violate public reason . . . since 

what he says has no implications on constitutional essentials or matters of basic justice. Or 

whatever implications it might have could surely be supported firmly by the values of public 

reason..”33 Rawls is a dean of modern liberalism. Yet even his attempt to explain why American 

public discourse must now be secularized when it was not so in the past collapses in an 

unconvincing mess that amounts to, “Religion can only legitimately be invoked when it is 

helpful to my positions.” In this respect he has many devout disciples among the American legal 

caste. Furthermore, an objective reading of Lincoln’s actions and speeches does not support 

Rawls’ position that those actions and speeches did not affect “constitutional essentials [nor] 

matters of basic justice.” For example: 

[A]t about the same time that Lincoln wrote this meditation, he offered a specific 

reading of providence to guide a course of action, evidently something he had not 

done before and would not do again. In September 1862, after the battle of 

Antietam provided just enough good news for Lincoln to move against slavery in 

the Confederate states, he explained to his cabinet how he was confirmed in this 

decision. Here are the notes that Secretary of the Navy Gideon Wells recorded 

at the time: “He had made a vow, a covenant, that if God gave us the victory in 

the approaching battle, he would consider it an indication of divine will and 

that it was his duty to move forward in the cause of emancipation. It might be 

thought strange that he had in this way submitted the disposal of matters when 

the way was not clear to his mind what he should do. God had decided this 

 

31 Political Liberalism at 234. 

32 Id. at 217-218. 

33 Id. at 254. 
Commissioners’ Statements 51 

question in favor of the slaves. He was satisfied that it was right, was confirmed 

and strengthened in this action by the vow and results.”34

Lincoln’s decision to free the southern slaves should not be considered as distinctly separate from 

the establishment of the 13th Amendment. In that respect, the decision affected both constitutional 

essentials and basic justice. His September 1862 decision to free the Confederate slaves, 

ultimately resulting in the Emancipation Proclamation - which he must have known would likely 

make it impossible to come to a peaceful rapprochement with the Confederacy - was a sharp 

departure from his August 1862 letter to Horace Greeley. In that letter, he wrote, “If I could save 

the Union without freeing any slave, I would do it, and if I could save it by freeing all the slaves 

I would do it; and if I could save it by freeing some and leaving others alone I would also do 

that.”35 Perhaps this was simply Lincoln’s effort to pacify the public. Yet in making a 

momentous decision that would in some way signify that the war would be a fight to the death, 

Lincoln gave his Cabinet a providential explanation for his decision. This was not just a 

discussion between two citizens as to the right course of action (and Rawls thinks even that 

should be governed by public reason). This was a decision made by the highest elected official in 

the land in his official capacity - the paradigmatic example of when public reason should be used. 

It involved a matter of basic justice and would affect constitutional essentials. In Rawls’s mind, 

Lincoln should have relied upon public reason. And Lincoln did not. Surely the fact that perhaps 

the greatest American president relied on a divine explanation for a decision that began to 

commit the United States to emancipation for all is as significant as what senators said or did not 

say during debates over the 13th Amendment. 

Furthermore, Lincoln did not limit his meditation on the relationship between God and political 

decisions to private conversations. An inaugural address is as public an exercise of political 

discourse as one can imagine. But Lincoln’s Second Inaugural Address does not limit itself to 

common sense and generally accepted scientific beliefs. It is an explicitly theological 

meditation on the evil of slavery and the mystery of divine will and divine judgment. 

Especially when addressed to a deeply religious people who searched for a theological 

explanation for the bloodshed36, Lincoln’s words could not fail to move his listeners. 

Rawls appears to be somewhat at a loss in regard to the Second Inaugural, and eventually throws 

up his hands and essentially says, “It didn’t matter.” But was that the case? Although the 13th 

Amendment had been passed by Congress when Lincoln gave his Second Inaugural Address, it 

had not yet been ratified by three-quarters of the states, including several states that at the time 

 

34 Mark A. Noll, The Civil War as Theological Crisis 89 (2006). 

35 Letter from Abraham Lincoln to Horace Greeley, Friday, August 22, 1862, available at http://memory.loc.gov/cgibin/ampage?collId=mal&fileName=mal2/423/4233400/malpage.db&recNum=0. 

36 See generally Mark A. Noll, THE CIVIL WAR AS THEOLOGICAL CRISIS (2006). 
52 Peaceful Coexistence Report 

of the speech were still members of the Confederacy and at war with the Union. Ratification 

would not be announced until December 18, 1865. Under the circumstances, it strains credulity 

to think that Lincoln was not both offering a meditation on the horror of war and trying to 

convince Americans, using explicitly theological language, that slavery must be abolished. 

Why expend so much ink discussing Rawls, public reason, and American history? First, because 

the clash between religious belief and secularism underpins many of the conflicts discussed in 

this report. Second, because delegitimizing the use of religiously-based moral beliefs in 

legislation and public discourse is used as a trump by secularists to achieve their policy goals 

when they lack majority support. Third, because even the primary proponent of public reason is 

unable to convincingly demonstrate that public reason as he initially defined it is standard in 

American history, and thus demonstrates that it is only an exercise of political will to be used as 

suits his ideological heirs. 

II. Hosanna-Tabor v. EEOC 

A primary area of recurring conflict between nondiscrimination norms and religious liberty 

involves employment discrimination. 

In 2012, the Supreme Court issued a decision in Hosanna-Tabor v. EEOC.

37 The case involved 

a Lutheran church and school, called Hosanna-Tabor, and a former teacher named Cheryl Perich. 

Perich had been a “called” teacher at the school, which meant that she had to engage in 

theological studies, pass an examination, be approved by the Lutheran Church-Missouri Synod 

[LCMS] (the denomination to which Hosanna-Tabor belonged) and be “called” by a church 

congregation. After being “called,” “called teachers” are referred to as “Minister of Religion, 

Commissioned.”38 Her duties included leading prayer in her classroom, teaching religion, and 

occasionally leading chapel services. Unfortunately, after serving as a called teacher for several 

years, Perich developed narcolepsy and was unable to work from June 2004 through February 

2005. In the meantime, the school had been forced to hire another teacher to take Perich’s place. 

Perich refused to resign and threatened to sue, despite the school having no position for her and 

the congregation having agreed to pay part of her health insurance premiums in return for her 

resignation. The threat to sue violated LCMS doctrine regarding Christians settling disputes 

amongst themselves, rather than going to the civil authorities.37 The school board informed her 

by letter that she might be fired. “As grounds for termination, the letter cited Perich’s 

‘insubordination and disruptive behavior’ ... as well as the damage she had done to her “working 

relationship” with the school by ‘threatening to take legal action. The congregation voted to 

rescind Perich’s call” and she was fired.38

 

37 Hosanna-Tabor v. EEOC, 132 S.Ct. 694,701 (2012). 

38 Id. at 700. 
Commissioners’ Statements 53 

This is where the conflict between religious liberty and nondiscrimination norms occurred. The 

Equal Employment Opportunity Commission [EEOC] sued on Perich’s behalf, alleging that 

because Perich had threatened to sue the school under the Americans with Disabilities Act 

[ADA] and then been fired her firing was retaliatory and violated the ADA.39 In response, 

Hosanna-Tabor argued that the “ministerial exception” applied, and therefore “the suit was barred 

by the First Amendment because the claims at issue concerned the employment relationship 

between a religious institution and one of its ministers. ...Perich was a minister, and she had 

been fired for a religious reason—namely, her threat to sue the Church violated the Synod’s 

belief that Christians should resolve their disputes internally.”40

The EEOC argued that Employment Division v. Smith prohibited the suit from being barred by 

the Free Exercise Clause because nondiscrimination laws, including the ADA, are neutral rules 

of general applicability.41 The EEOC also argued there was no ministerial exception available 

under the Establishment Clause because Perich did not seek to be reinstated, and thus there was 

no threat of entanglement.42 And even if Perich did seek to be reinstated, the EEOC said, there 

still would be no entanglement problem, because she could simply be reinstated as a lay teacher 

instead of a called teacher.43 The EEOC further argued that no ministerial exception should be 

recognized, or if the Court did recognize it, it should limited to a very small class of people.44 

Perhaps worst of all, the EEOC argued that even if a church fired an employee in retaliation, but 

did so for a religious reason, courts should apply nondiscrimination laws to the church as they 

would to a secular employer.45 The only protection available to religious groups was that enjoyed 

by all other groups, religious and secular.46 These were extreme positions. Although the Supreme 

 

39 Brief for the Federal Respondent at 8, Hosanna-Tabor Lutheran Church and School v. EEOC, 132 S.Ct. 694 (2012) 

(No. 10-553). 

40 Hosanna-Tabor, 132 S.Ct. at 701. 

41 Brief for the Federal Respondent at 11, Hosanna-Tabor Lutheran Church and School v. EEOC, 132 S.Ct. 694 

(2012) (No. 10-553). 

42 Id. at 12. 

43 Id. at 11. 

44 Brief for the Federal Respondent at 14-15, Hosanna-Tabor Lutheran Church and School v. EEOC, 132 S.Ct. 694 

(2012) (No. 10-553). 

45 Id. at 37. 

Merely proffering a religious reason for terminating an employee does not, moreover, invariably raise entanglement 

concerns. For example, when a religious employer acknowledges that it retaliated against an employee but claims it 

did so for a religious reason, there is no risk of entanglement. The court will not have to evaluate church doctrine, 

assess the centrality of the employer’s religious belief, or “resolve a theological dispute” in order to adjudicate the 

case. The court can accept the employer’s articulation of its religious reasons for retaliation but nevertheless conclude 

that the employer is bound by Smith to follow generally applicable prohibitions on such conduct. 

46 Hosanna-Tabor, 132 S.Ct. at 706. 
54 Peaceful Coexistence Report 

Court had never ruled on the existence of a ministerial exception, “ten state supreme courts and 

twelve federal circuit courts” had recognized it in the previous forty years 47

The government’s arguments demonstrate the extent to which the EEOC failed to respect the 

autonomy of religious groups, and how ambitious is its vision for the reach of antidiscrimination 

laws. Had the EEOC prevailed, it would have energetically applied the nondiscrimination 

statutes to require religious groups who had fired ministers like Perich to reinstate those ministers 

in lay positions. Given the EEOC’s energy and ambition regarding the scope of the 

antidiscrimination laws, it likely would have extended the enforcement of the antidiscrimination 

laws even beyond those bounds envisioned in its brief.48

Fortunately for the cause of religious liberty, the Supreme Court unanimously rejected the 

EEOC’s arguments and affirmed the existence of the ministerial exception. The ministerial 

exception is based in both the Establishment Clause and the Free Exercise Clause. It is based in 

the Establishment Clause because it implicates internal church governance and a church’s 

selection of its ministers.49 It is grounded in the Free Exercise Clause because if a church cannot 

decide who its minister will be, it barely has any free exercise rights at all. 

The Court also determined that given all the facts Perich was a “minister” for purposes of the 

ministerial exception.50 This determination was in accord with previous appellate court 

decisions, as “Every Court of Appeals to have considered the question has concluded that the 

ministerial exception is not limited to the head of a religious congregation....”51 However, the 

Court did not announce firm rules for who would qualify as a minister.52 I agree with Justice 

Thomas that courts should defer to religious institutions’ sincere belief that a particular employee 

was a minister.53 As Justices Alito and Kagan point out, many religions do not recognize the 

 According to the EEOC and Perich, religious organizations could successfully defend against employment 

discrimination claims in those circumstances [compelling ordination of women by the Catholic Church or Orthodox 

Jewish seminaries] by invoking the constitutional right of freedom of association—a right “implicit” in the First 

Amendment. The EEOC and Perich thus see no need—and no basis—for a special rule grounded in the Religion 

Clauses themselves. ... The right to freedom of association is a right enjoyed by religious and secular groups alike. It 

follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the 

association in question is the Lutheran Church, a labor union, or a social club. 

47 Windham Statement, infra at 284. 

48 If anyone doubts the EEOC’s energy and ingenuity in interpreting statutes and case law to obtain its policy 

preferences, I refer them to my statement in U.S. COMMISSION ON CIVIL RIGHTS, ASSESSING THE IMPACT OF 

CRIMINAL BACKGROUND CHECKS AND THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S CONVICTION 

RECORDS POLICY 289 (2013), available at http://www.eusccr.com/downloadgpo.htm. 

49 Hosanna-Tabor, 132 S.Ct. at 706. 

50 Id. at 707. 

51 Id. at 707. 

52 Id. at 707. 

53 Id. at 710-11. 
Commissioners’ Statements 55 

concept of “clergy” or “ordination” in the same way as do Orthodox Judaism, the Catholic 

Church, and mainline Protestant churches. This can put small and unfamiliar religious groups at 

a disadvantage when invoking the ministerial exception, which led Justices Alito and Kagan to 

suggest that courts look at the person’s function to determine if they qualify for the ministerial 

exception.54 This is a reasonable suggestion, but I share Justice Thomas’s concerns that so doing 

might excessively entangle the courts in determining the religion’s beliefs, practices, and internal 

governance. 

Unsurprisingly, the Court’s decision was not met with unmixed rejoicing. One witness at the 

Commission has argued that the Hosanna-Tabor decision subjects ministers to a “clash of 

cultures” between American society and their religious society, because they assume they have 

the full protection of the civil rights laws against their employer.55 They are shocked to discover 

that they do not because of the ministerial exception.56

This view seems to assume that many, perhaps even most, of these contested employment 

decisions are motivated by invidious discrimination rather than sincere religious beliefs. I note 

this assumption because it likely motivates the recommendations that the courts examine whether 

a proffered religious belief is sincere, that churches be required to state whether a particular 

employee is subject to the ministerial exception, that “suits based on fraud or misrepresentation 

should be available if religious organizations mislead applicants,” and that “any religious 

organization that misleads employees regarding the availability of civil-rights protections loses its 

tax-exempt status.”57 Although it does not, and should not, affect the constitutionality of the 

ministerial exception, the assumption that many of these adverse employment actions are 

pretextual or due to invidious discrimination seems questionable and misleading. The witness 

implies that ministers who consider themselves victims of invidious discrimination are in fact 

victims and that their termination is not the result of genuine religious beliefs, differences in 

views, a determination that a different minister would better serve the church’s mission, or 

simply poor job performance (“When employees lost these cases based on the ministerial 

exception, they felt wronged.)”58

An additional consideration is that in certain cases, what would be invidious discrimination in 

another context is considered a legitimate religious consideration. For example, in the Petruska 

case discussed below, the relevant authorities might well have thought that a male priest as 

chaplain was more consonant with the teachings of the Catholic Church than a female chaplain. 

 

54 Id. at 711-12. 

55 Hamilton Statement, infra at 232. 

56 Id. at 231. 

57 Id. at 231. 

58 Id. at 231. 
56 Peaceful Coexistence Report 

In such situations, the person’s sex is a relevant consideration. Likewise, an Orthodox Jewish 

seminary might decline to accept a candidate whose mother was not born Jewish and did not 

convert to Judaism under conditions accepted by the seminary, even though in another context 

this would be considered discrimination on the basis of race or ethnicity.59

In Rweyamamu v. Cote, an African-American Roman Catholic priest sued his bishop for racial 

discrimination because he had not been promoted and ultimately had been terminated60 The 

Second Circuit found the suit was barred by the ministerial exception. However, Father Justinian, 

the plaintiff, had also appealed his bishop’s decision to church authorities in Rome. Those 

authorities found that there were just reasons for the bishop’s decision not to promote him, 

including “complaints regarding his homilies, complaints regarding his interaction with parish 

staff, ... and the necessity of giving a unified and positive witness to the people of the parish.” 

The authorities in Rome also found that Father Justinian “‘was not sufficiently devoted to 

ministry’ because his work with ‘BOCED [an independent charity] interfere[d] with [his] fulltime parochial duties.’”61 The fact that additional reviewers found problems with Father 

Justinian’s performance suggests that there may have been non-discriminatory reasons for the 

bishop’s decisions regarding Father Justinian. 

In Petruska v. Gannon University, Petruska challenged her removal as University Chaplain, 

claiming it was because of her gender.62 The Third Circuit disagreed, saying, “Her 

discrimination and retaliation claims are premised upon Gannon’s decision to restructure, a 

decision which Petruska argues was merely pretext for gender discrimination. It is clear from the 

face of Petruska’s complaint, however, that Gannon’s choice to restructure constituted a decision 

about spiritual functions and how those functions would be divided.”63 Furthermore, the Third 

Circuit allowed Petruska’s breach of contract claim to proceed, which suggests that the court was 

not merely giving the university a blank check.64 Churches and religious institutions must have 

the right to choose their own ministers, even for reasons that may seem discriminatory (for 

example, all Roman Catholic bishops must resign their jurisdictions at age 72).65 While instances 

 

59 This hypothetical is based on a case involving the Jewish Free School in London in which a boy was denied 

admission because his mother had converted to Judaism under procedures the school did not recognize as valid. The 

child’s parents sued the school, claiming racial discrimination, see Riazat Butt, Jewish school racial discrimination 

case goes to supreme court, THE GUARDIAN, Oct. 26, 2009, available at

http://www.theguardian.com/world/2009/oct/26/jewish-school-discrimination-case-court. 

60 Rweyamamu v. Cote, 520 F.3d 198 (2nd Cir. 2008). 

61 Id. at 200 

62 Petruska v. Gannon University, 462 F.3d 294, at 307 (3rd Cir. 2006). 

63 Id. at 307-08. 

64 Id. at 310. 

65 Bishops and Their Ministry, The Diocese of Milwaukee, available at http://www.diomil.org/about-bishops-andtheir-ministry/. 
Commissioners’ Statements 57 

of truly invidious discrimination undoubtedly occur, they likely occur far less frequently than the 

statement implies. 

Why is the ministerial exception important and why should it bar the application of 

antidiscrimination laws to a religious institution’s selection of ministers? It is important because 

as Americans, we believe religious freedom is important, and if religious freedom means 

anything, it must mean the right to select your own minister. Furthermore, religious exercise is 

not something that people usually “do” in isolation. They form groups to worship God and to 

observe His dictates in every aspect of their lives. Their religious institutions must be free to 

reflect their religious beliefs, including through their selection of ministers, even if those beliefs 

clash with broader society. That includes using selection criteria that may be impermissible in 

other contexts. 

Professor Marci Hamilton, a hearing witness, objects to the “clash of cultures” that occurs when 

general American society adheres to one view about discrimination and religious groups adhere 

to another. But a “clash of cultures” may benefit society by preserving the diversity of religious 

voices that serve as an authority that competes with the state.66 As Professor Mark DeGirolami 

pointed out, “Conflict is an essential and deep feature of our society—both unavoidable and 

actually desirable, since its source is our different backgrounds, different outlooks, and different 

memories.”67 This conflict partly manifests itself in people’s beliefs about the ultimate truth of a 

particular religion and their decision to follow that religion’s precepts. As Professor Michael 

Helfand writes, religious institutions allow people to pursue what they believe to be the “good 

life—in the sense of pursuing those goods conducive to human flourishing—and to consider 

what the “good life” is in concert with others.68 We can often better work through and advance 

our religious beliefs when we join with others in religious institutions than we can as individuals. 

Yet these institutions have independent value and importance, and are not “reducible to the rights 

and interests of their members and employees.”69 Refusing to second-guess religious institutions’ 

 

66 Eric Metaxas, Comment to the U.S. Commission on Civil Rights, at 1 (2013) (on file with the Commission). 

Today we often hear that it [wall of separation between church and state] means that the state needs to be protected 

from religion, and that religion should have no place in government or society. 

Jefferson and the Founders thought the opposite. They knew that the State was always tempted to take over 

everything — including the religious side of people’s lives. So they put a protection in the Constitution that the 

government could not favor any religion over another... and could not prohibit the free exercise of religion. 

They wanted churches and religions to be protected from the government — from Leviathan. Why? Because they 

knew that what people believed and their freedom to live out and practice one’s most deeply held beliefs was at the 

very heart of this radical and fragile experiment they had just launched into the world. 

67 DeGirolami Statement, infra at 214. 

68 Helfand Statement, infra at 235. 

69 Richard W. Garnett, Do Churches Matter? Toward an Institutional Understanding of the Religion Clauses, 53 VILL.

L. REV. 273, 293-94 (2008). 
58 Peaceful Coexistence Report 

selection of ministers allows these institutions to flourish and prevents the state from muddying 

their distinct message.70 Civil society is healthier when it is populated by religious institutions 

that serve as a counterweight to the authority of the state and that turn their adherents’ attention 

to higher things. “[T]he existence and independence of religious institutions-self-defining, selfgoverning, self-directing institutions-are needed, as John Courtney Murray put it, to ‘check the 

encroachments of secular power and preserve [the] immunities’ of our “basic human things.”71

That competing authority is why religious groups have historically had an uneasy relationship 

with the state. When Henry VIII could not persuade the Catholic Church to annul his marriage 

to Catherine of Aragon, he decided that the best course of action was to establish his own 

church-quite literally his own church, with compliant clergymen selected by him. Those who 

remained faithful to the Catholic Church reminded Henry of the irritating competing authority, 

and so had their churches and monasteries destroyed (which conveniently allowed Henry to seize 

their assets) and in some cases were killed, the most famous martyrs being the now-canonized 

Sir Thomas More and Bishop John Fisher. 

As hearing witness Lori Windham said, the reason we must have a robust ministerial exception is 

because we must allow religious groups to choose the people who will carry their message. A 

robust ministerial exception is one way of protecting religious groups from government 

overreach.72 Even the selection of a speaker is a message, as Henry VIII well knew when he 

stocked his newly created church with his supporters and executed Bishop Fisher. The ability to 

choose your own ministers tells society and the state what you believe God requires, and what 

God requires may well conflict with prevailing mores, whether that is that Jews may only marry 

Jews, that priests must be celibate men, or that religious school teachers must adhere to churchdetermined standards of behavior.73 

 

70 Here I part company from Professor Helfand, who encourages courts to engage in determining whether a 

purportedly religion-based employment decision is a pretext for invidious discrimination; see Helfand Statement at 

235-36. 

71 Garnett, supra note 69 at 295. 

72 John Rawls, POLITICAL LIBERALISM 221, n. 8 (2005). 

[W]e think of liberty of conscience as protecting the individual against the church. This is an example of the 

protection that basic rights and liberties secure for individuals generally. But equally, liberty of conscience and other 

liberties such as freedom of association protect churches from the intrusions of government and from other powerful 

associations. Both associations and individuals need protection . . . . It is incorrect to say that liberalism focuses solely 

on the rights of individuals; rather, the rights it recognizes are to protect associations, smaller groups, and individuals, 

all from one another in an appropriate balance specified by its guiding principles of justice. 

73 Windham Statement, infra at 288-89. 
Commissioners’ Statements 59 

III. Same-Sex Marriage and Religious Liberty 

From its earliest years, orthodox Christianity has regarded sexual relationships involving people 

other than a man and woman married to each other as deviations from the moral law.74 This 

includes same-sex sexual relationships as well as sexual relationships between unmarried 

opposite-sex partners. Furthermore, orthodox Christianity teaches that the state cannot simply 

wave a magic wand and transform same-sex relationships into marriages.75 They believe that 

marriage has certain necessary characteristics, that this nature was established by God but is 

accessible to reason, and other romantic attachments, no matter how strongly felt, simply are not 

marriage.76 This is the “conjugal view” of marriage. This view is in conflict with what some call 

the “revisionist view,” which regards marriage as essentially one’s strongest emotional 

attachment.77 The Supreme Court majority recently enshrined the revisionist view in law through 

 

74 See, e.g., Matt. 5:31, I Cor. 5:1-5, 6:9-11. 

75 U.S. Conference of Catholic Bishops, “Supreme Court Decision on Marriage ‘A Tragic Error’ Says President of 

Catholic Bishops Conference, June 26, 2015 (“Regardless of what a narrow majority of the Supreme Court may 

declare at this moment in history, the nature of the human person and marriage remain unchanged and unchangeable. . 

. . It is profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a 

marriage.”), available at http://www.usccb.org/news/2015/15-103.cfm; Ethics and Religious Liberty Commission of 

the Southern Baptist Convention, “ERLC President Russell Moore Responds to SCOTUS Ruling to Legalize SameSex Marriage,” June 26, 2015 (“I am a conscientious dissenter from this ruling handed down by the Court today, 

believing, along with millions of others, that marriage is the sacred union of one man and one woman and that it is 

improper for the Court to redefine an institution it did not invent in the first place.), available at

http://erlc.com/article/erlc-president-russell-moore-responds-to-scotus-ruling-to-legalize-same-sex; The Lutheran 

Church-Missouri Synod, “Synod president responds to SCOTUS same-sex marriage ruling,” June 26, 2015 (“Today, 

the Supreme Court has imposed same-sex marriage upon the whole nation . . . . Five justices cannot determine natural 

or divine law.”), available at https://blogs.lcms.org/2015/synod-president-responds-to-scotus-same-sex-marriageruling. 

76 Sherif Gergis, Ryan T. Anderson, and Robert P. George, WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE

(2013) 11-12. 

What we have come to call the gay marriage debate is not directly about homosexuality, but about marriage. It is not 

about whom to let marry, but about what marriage is. It is a pivotal state in a decades-long struggle between two 

views of the meaning of marriage. 

The conjugal view of marriage has long informed the law—along with the literature, art, philosophy, religion, and 

social practice—of our civilization. ... It is a vision of marriage as a bodily as well as an emotional and spiritual bond, 

distinguished thus by its comprehensiveness, which is, like all love, effusive: flowing out into the wide sharing of 

family life and ahead to lifelong fidelity. In marriage, so understood, the world rests its hope and finds ultimate 

renewal. 

A second, revisionist view has informed the marriage policy reforms of the last several decades. It is a vision of 

marriage as, in essence, a loving emotional bond, one distinguished by its intensity—a bond that needn’t point beyond 

the partners, in which fidelity is ultimately subject to one’s own desires. In marriage, so understood, partners seek 

emotional fulfillment, and remain as long as they find it. 

77 Id. at 12. 
60 Peaceful Coexistence Report 

its decision in Obergefell v. Hodges78, with Chief Justice Roberts’s dissent articulating the 

conjugal view.79

This division over the nature of marriage has consequences. People who believe that the 

conjugal nature of marriage was established by God resist condoning same-sex marriages. This 

sets up a conflict when the state establishes civil same-sex marriage. A religious group or 

religious person’s attempt to differentiate between heterosexual and homosexual married couples 

exposes them to the threat of running afoul of either sexual orientation or marital status 

nondiscrimination laws. 

For example, some religious organizations believe that they cannot in good conscience place 

children for adoption or in foster care with same-sex couples. (Again, this almost always 

involves Christian organizations.) Many Christian adoption agencies, such as those operated by 

Catholic Charities, only place children with couples who are married. They do this both because 

they believe that unmarried cohabitation is wrong and that a home with a married mother and 

father is the best environment for children. Until very recently, the belief that children need both 

a mother and a father was uncontroversial. Yet even before Obergefell, same-sex marriages and 

civil unions had placed these religious adoption agencies on a collision course with the state. 

Bishop Thomas Paprocki of the Diocese of Springfield, Illinois writes: 

[T]his intended religious protection was completely dismissed by the state after 

the [civil union] bill was signed into law by Governor Patrick Quinn. 

Almost immediately, the state accused Catholic Charities of being in violation of 

the new law because of our opposition to the placement of children in the 

homes of unmarried couples who are living together, regardless of their sexual 

orientation. We were told that if we did not immediately expand our 

religious definition of marriage to include civil union couples, the state 

would dismantle the entire Catholic Charities foster care and adoption 

network across Illinois . . . Every attempt we made to explain our position 

 

78 Obergefell v. Hodges, 135 S.Ct. 2584, 2600 (2015) (Kennedy, J.) (“Marriage responds to the universal fear that a 

lonely person might call out only to find no one there. It offers the hope of companionship and understanding and 

assurance that while both still live there will be someone to care for the other.”). 

79 Id. at 2613 (Roberts, C.J., dissenting). 

This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did 

not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving 

force of world history - and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in 

the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to 

raising them in the stable conditions of a lifelong relationship. 
Commissioners’ Statements 61 

and seek a compromise with the state was immediately dismissed—surrender 

your religious beliefs in this matter or we will eradicate your programs.80

In the end, Illinois Catholic Charities’ foster care and adoption programs were eradicated.81 

Many of Catholic Charities’ offices closed.82 Likewise, Catholic Charities in Boston and 

Washington, D.C. ended their foster care and adoption services because they would be required 

to allow same-sex couples to adopt children.83 Hearing witness Ed Whelan noted that these 

conflicts would become more common as more states adopted same-sex marriage.84 Events 

have overtaken this long-delayed report, and Justice Kennedy recently made same-sex marriage 

the law of the land for the foreseeable future. These conflicts will become much more 

pronounced and arise more quickly than anyone thought possible in March 2013. It is possible, 

perhaps even probable, that in the near future there will be no orthodox Christian organizations 

partnering with the government to provide adoption and foster care services in the United 

States.85

Similarly, some religious service providers such as photographers and bakers believe that they 

cannot in good conscience help celebrate a same-sex wedding. There are at least two possible 

reasons why a religious believer could think they could not help celebrate a same-sex wedding. 

First, in assisting in celebrating a same-sex wedding, they are treating it as a wedding, bearing 

witness to the world through their actions that this relationship is a marriage. Because they do not 

 

80 Most Reverend Thomas John Paprocki, Bishop of Springfield in Illinois, Comment to the U.S. Commission on Civil 

Rights, at 5 (2013) (on file with the Commission). 

81 Id. at 4-5. 

82 Id. at 6. 

83 See Whelan Statement at 271; see also William Wan, Same-sex marriage leads Catholic Charities to adjust 

benefits, WASHINGTON POST, Mar. 2, 2010, available at http://www.washingtonpost.com/wpdyn/content/article/2010/03/01/AR2010030103345.html. 

84 Whelan Statement, infra at 277. 

85 Paul Coleman, Memorandum of Alliance Defending Freedom to the U.S. Commission on Civil Rights, at 7 (Apr. 

19, 2013) (on file with the Commission). 

Faith-based (and in particular Catholic) adoption agencies have now been closed in England. When the Sexual 

Orientation Regulations were passed in 2007, any agency that refused to place children with homosexual parents 

would be in breach of the law, would lose funding and would be forced to close down or remove its religious ethos. 

This was despite Catholic adoption agencies being widely recognised as some of the best in the country. In 2007, 

there were fourteen faith-based adoption agencies working throughout the UK, accounting for a third of adoptions 

within the voluntary sector. Most of these have now had to remove their religious ethos and become secularized or 

have had to withdraw their services completely. 

In April 2011 the Charity Tribunal found against the last remaining Catholic adoption agency following a High Court 

decision. The tribunal stated that “religious conviction in the sphere of personal belief is protected in both domestic 

and European equality law, so that acts of devotion, worship, and prayer (including ceremonies) are exempt from 

equality obligations.” However, the Tribunal went on to state that there is an “essential distinction between private 

acts of worship such as blessings and the provision of a public service such as an adoption agency. 
62 Peaceful Coexistence Report 

believe this relationship is a marriage and that the purported marriage is invalid because of a 

standard of absolute truth regarding the nature of marriage that is external to all people, their 

involvement in the celebration is an offense twice over. It is an offense against their own 

conscience, because they are testifying to something they do not believe to be true. And it is an 

offense against absolute truth itself, because they believe the same-sex marriage is a falsehood 

about the nature of marriage, and they are assisting in perpetrating that falsehood.86

The second reason why a religious believer might think they could not help celebrate a same-sex 

wedding is orthodox Christianity’s prohibition of same-sex sexual activity. There are of course 

some outliers that no longer adhere to this teaching, but it was largely unchallenged Christian 

teaching for 2000 years and is still adhered to by churches whose members comprise the majority 

of Christians in the United States and worldwide. Every conception of marriage assumes that 

marriage includes sexual intercourse. A same-sex marriage therefore presumes sexual 

intercourse. And a religious believer asked to contribute to the wedding celebration in some way, 

whether through providing a cake or taking wedding photographs, is helping to celebrate 

something they believe to be a transgression of divine law. Because they believe they do not 

have the ability to change the divine law, they are torn between obeying the civil law and obeying 

the moral law.87

On the other hand, people in same-sex partnerships consider their sexual orientation an integral 

part of who they are. Furthermore, they consider expressing their sexual orientation to be an 

essential part of their identity, and like most people, they want to find someone they love and 

who loves them in return.88 When someone refuses to help celebrate their wedding, it is a moral 

judgment regarding their behavior. In some instances, they believe the refusal infringes on their 

dignity as a person. 

 

86 It might be objected at this point that religious believers are inconsistent - as mentioned above, orthodox 

Christianity prohibits any sexual activity outside of monogamous, opposite-sex marriage, yet many of these vendors’ 

customers doubtless cohabitate before marriage. The constitutional answer is that religious beliefs need not be 

consistent to be protected, see Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 715 (1981). As a 

theological matter, the vendors may well think that although a marriage preceded by cohabitation is less than ideal, 

the marriage “regularizes” the couple’s status, and thus participating in the wedding is licit. However, I would oppose 

any efforts to force an objecting vendor to serve a cohabitating client (or a previously-divorced client, or a client who 

stated that he was entering an “open marriage,” and so on). 

87 Michael Stokes Paulsen, Is Religious Freedom Irrational? 112 MICH. L. REV. 1043, 1066-67 (2014). 

[T]he religious believer is (accepting the premises on which religious freedom rests) caught between the conflicting 

commands of dueling sovereigns—God and Man, “church” and “state”. This is a true “conflict of laws” situation; and 

for the religious believer, the commands of God categorically must have priority [citations omitted]. 

88 Feldblum, supra note 2, at 142-43. 

[G]ay people— of all individuals—should recognize the injustice of forcing a person to disaggregate belief or identity 

from practice. ...It seemed to me the height of disingenuousness, absurdity, and indeed, disrespect to tell someone it 

is permissible to “be” gay, but not permissible to engage in gay sex. What do they think being gay means? 
Commissioners’ Statements 63 

Can the competing interests of religious believers and same-sex couples be reconciled? It is 

tempting to cast the debate as a contest between two competing liberty rights - the right of samesex couples to manifest their sexuality, and the right of religious people to manifest their 

religious beliefs.89 Apparently this is how Justice Kennedy views the conflict. But it is not so 

straightforward. 

On the one hand, the free exercise of religion is a constitutionally enumerated right. But it is 

only within the past few decades that sexual behavior has been found lurking in the outer fringes 

of the Fourteenth Amendment. Even in a narcissistic age, pace Justice Kennedy, it is difficult to 

believe that the existence of a constitutional right to sexual liberty escaped the notice of founders, 

framers, and constitutional scholars for over 200 years. The sudden discovery of its existence in 

the latter half of the 20th century suggests that sexual liberty’s status as a constitutional right is 

dubious, and is based more in the Court’s (and sometimes the public’s) enthusiasm for the idea 

than in the Constitution. “Congress shall make no law respecting an establishment of religion, or 

prohibiting the free exercise thereof” is dramatically clearer and more direct than “This right of 

privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and 

restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth 

Amendment’s reservation of rights to the people.”90 The flailing about to find a constitutional 

basis for sexual liberty, which continues to this day, suggests that no such basis exists. Until 

Obergefell, in the specific context of same-sex sexual activity, as Justice Scalia noted, the Court 

still had not declared such activity a “fundamental right,” which admittedly may reflect an odd 

reticence on the Court’s part rather than principle.91 In Obergefell itself, Justice Kennedy still 

could not decide where the fundamental right to same-sex marriage is grounded, settling upon an 

 

89 Brownstein Statement, infra at 177 (“I suggest that the right of same-sex couples to marry and religious liberty 

rights share a common foundation as important personal autonomy rights”). 

90 Roe v. Wade, 410 U.S. 113, 153 (1973); see also Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 

833, 951(1992) (Rehnquist, C.J., dissenting). 

We have held that a liberty interest protected under the Due Process Clause of the Fourteenth Amendment will be 

deemed fundamental if it is ‘implicit in the concept of ordered liberty.’ ...These expressions admittedly are not 

precise, but our decisions implementing this notion of ‘fundamental’ rights do not afford any more elaborate basis on 

which to base such a classification.” [citations omitted]. 

91 Lawrence v. Texas, 539 U.S. 558, 586 (Scalia, J., dissenting) (2003). 

Most of the rest of today’s opinion has no relevance to its actual holding—that the Texas statute “furthers no 

legitimate state interest which can justify” its application to petitioners under rational-basis review. Though there is 

discussion of “fundamental proposition[s],” and “fundamental decisions,” nowhere does the Court’s opinion declare 

that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to 

the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” 

Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: 

“Respondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite 

unwilling to do. Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty”—which it 

undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching 

implications beyond this case [citations omitted]. 
64 Peaceful Coexistence Report 

ad hoc hybrid of the Due Process Clause and the Equal Protection Clause.92 After all, not even 

the most committed partisan can claim that same-sex marriage is “‘deeply rooted in this Nation’s 

history and tradition’”.93 In the end, as even Justice Kennedy tacitly admits in his opinion, these 

decisions are based in the policy preferences of the Court’s majority.94 Perhaps the decisions in 

these cases are good public policy, but that does not mean they recognize actual constitutional 

rights.95

Regardless of the dubious constitutional grounding of sexual liberty, the debate is not really about 

two competing constitutional rights. It is about laws that prohibit discrimination on the basis of 

sexual orientation or marital status, and whether religious believers can be exempted from those 

laws. According to the Supreme Court’s decision in Smith, neutral laws of general applicability 

apply to objecting religious believers.96 In at least some cases, though, the religious believer did 

not object to serving homosexual customers as a general rule, and in fact had served them for 

years.97 The believer only objected to helping celebrate a same-sex wedding, which the person 

believed would involve oneself celebrating a violation of divine law. 

This suggests that those who are opposed to exempting religious believers from laws forbidding 

discrimination on the basis of sexual orientation or marital status may be motivated by something 

other than an inability to obtain services due to society-wide discrimination against same-sex 

couples. Chai Feldblum describes a denial of services based on sexual orientation as a “dignitary 

harm” that is not alleviated even if one can easily obtain identical services elsewhere.98 Justice 

 

92 Obergefell v. Hodges, 135 S.Ct. 2584, 2604-05; id. at 2622-23 (Roberts, C.J., dissenting). 

93 Washington v. Glucksberg, 521 U.S. 702, 721 (1997). 

94 Obergefell v. Hodges, 135 S.Ct. 2584, 2598 (“When new insight reveals discord between the Constitution’s central 

protections and a received legal stricture, a claim to liberty must be addressed.”); id. at 2628 (Scalia, J., dissenting) 

(“Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling 

assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the 

Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.”). 

95 Lawrence v. Texas, 539 U.S. 558, 605-06 (Thomas, J. dissenting) (2003). 

I write separately to note that the law before the Court today “is . . . uncommonly silly.” If I were a member of the 

Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through 

noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law 

enforcement resources. 

Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others 

similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’” 

And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general 

right of privacy,” or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent 

dimensions” [citations omitted]. 

96 In situations involving federal action, the Religious Freedom Restoration Act applies, and many states have RFRAs 

that apply to state action. We will not discuss those situations here. 

97 See infra at VI. 

98 Feldblum, supra note 2 at 153. 
Commissioners’ Statements 65 

Kennedy uses similar language about dignitary harms in Obergefell.

99 Elevating 

nondiscrimination norms may smuggle something akin to Rawls’ concept of “self-respect” as a 

basic requirement of the just society into our constitutional order.100 Rawls urges that the 

adoption of his “two principles” will lead to increased self-respect among individuals. He writes: 

Now, our self-respect normally depends upon the respect of others. Unless we 

feel that our endeavors are respected by them, it is difficult if not impossible for 

us to maintain the conviction that our ends are worth advancing. . . . Thus a 

desirable feature of a conception of justice is that it should publicly express men’s 

respect for one another. In this way they insure a sense of their own value.101

Furthermore, Rawls does not believe that a guarantee of basic liberties alone is sufficient for a 

just society.102 Many proponents of nondiscrimination norms, knowingly or unknowingly, seem 

to be influenced by Rawls’s thinking and therefore place a high premium on society taking an 

active role to protect the self-respect of individuals. The Constitution, however, is not a 

Rawlsian document. It establishes a system of natural liberty and is primarily concerned with 

formal justice.103 If anyone relies upon the Constitution to secure for himself the respect of his 

 

99 Obergefell 135 S.Ct. at 2604 (“Especially against a long history of disapproval of their relationships, this denial to 

same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays 

and lesbians serves to disrespect and subordinate them.”). 

100 I discuss Rawls here because he clearly articulates the importance of societal support of self-respect, whereas 

much of the public discourse surrounding nondiscrimination norms simply parrots the importance of 

nondiscrimination, equality, and respect without additional analysis. 

101 John Rawls, A THEORY OF JUSTICE 155-156 (1999). 

102 Id. at 62-64 (1999). 

In the system of natural liberty the initial distribution is regulated by the arrangements implicit in the conception of 

careers open to talents (as earlier defined). These arrangements presuppose a background of equal liberty (as specified 

by [Rawls’s] first principle) and a free market economy. They require a formal equality of opportunity in that all have 

at least the same legal rights of access to all advantaged social positions. But since there is no effort to preserve an 

equality, or similarly, of social conditions, except insofar as this is necessary to preserve the requisite background 

institutions, the initial distribution of assets for any period of time is strongly influenced by natural and social 

contingencies. The existing distribution of income and wealth, say, is the cumulative effect of prior distribution of 

natural assets - that is, natural talents and abilities - as these have been developed or left unrealized, and their use 

favored or disfavored over time by social circumstances and such chance contingencies as accident and good fortune. 

Intuitively, the most obvious injustice of the system of natural liberty is that it permits distributive shares to be 

improperly influenced by these factors so arbitrary from a moral point of view. . . . 

There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural 

assets than by historical and social fortune. Furthermore, the principle of fair opportunity can be only imperfectly 

carried out, at least as long as some form of the family exists. 

103 Rawls himself notes in a later work that the United States’ political settlement may rely on a thinner overlapping 

consensus than he envisions in his ideal society. See John Rawls, POLITICAL LIBERALISM 149 (2005). 
66 Peaceful Coexistence Report 

fellow-citizens, he will have to content himself with equality before the law. Equality before the 

law is not nothing, but it is not necessarily the sort of societal respect contemplated by Rawls. 

Nor does it bestow societal approval upon all one’s life choices and therefore build up one’s selfesteem. 

This also raises the question whether these nondiscrimination laws are actually neutral laws of 

general applicability. Undoubtedly there are some service providers who would refuse to serve 

homosexual customers out of pure animus. The growing public acceptance, and even 

celebration, of gay and lesbian people suggests that this is an ever-smaller group. Furthermore, 

most business owners will overcome any personal distaste for someone in order to sell them 

goods or services. 

Perhaps there are large numbers of service providers and business owners who would 

discriminate against gays and lesbians based purely on their sexual orientation if 

nondiscrimination laws were not in place. But it seems unlikely, or we would frequently hear 

news stories from states without sexual orientation nondiscrimination laws about blatant 

discrimination against gay and lesbian people. Of course there is discrimination against gays and 

lesbians, as there is against every identifiable group, but it seems unlikely to be a societal 

pandemic requiring drastic action. In that case, are purportedly neutral and generally applicable 

laws really so? Or are purportedly neutral laws being used as a way to punish religious believers 

for holding unfashionable beliefs about sexual conduct? 

There are some indications that purportedly neutral laws are being used as a way to punish 

religious believers. One commenter mentioned a case involving a Vermont B&B owned by a 

devout Catholic couple.104 In a good-faith attempt to comply with state law while remaining 

faithful to their religious beliefs, the couple would tell same-sex couples that they were willing to 

host their wedding festivities, but believed that marriage is between a man and a woman. The 

Vermont Human Rights Commission found in 2005 that this practice did not violate state 

antidiscrimination laws. Unfortunately, several years later an employee erroneously told a samesex couple that the B&B would not host their wedding reception. The B&B was sued. The 

settlement agreement stipulated that the owners believed they were in conformity with state law, 

but also stipulated that the owners would no longer tell customers their views on marriage.105 

 Yet as Baier has suggested, a less deep consensus on the principles and rules of a workable political constitution may 

be sufficient for less demanding purposes and far easier to obtain. He thinks that in fact in the United States we have 

actually achieved something like that. So rather than supposing that the consensus reaches down to a political 

conception covering principles for the whole of the basic structure, a consensus may cover only certain fundamental 

procedural political principles for the constitution. 

104 See Alliance Defending Freedom, Memorandum re Briefing on Reconciling Nondiscrimination Principles with 

Religious Liberty, at 2-3 (Apr. 19, 2013) (on file with the Commission). 

105 Wildflower Inn Settlement Agreement at 3(A), (B), (D) (Aug. 2, 2012), available at 

http://www.adfmedia.org/files/WildflowerInnSettlement.pdf. 
Commissioners’ Statements 67 

Even so, part of the settlement agreement was that they would no longer host weddings or 

wedding receptions for anyone. Although the owners agreed to this settlement, it would seem 

that the Vermont Human Rights Commission is now interpreting the Vermont Fair Housing and 

Accommodation Act in a way that potentially violates the First Amendment. If the owner of a 

public accommodation is willing to serve people with whom he disagrees, but is prohibited from 

telling them he disagrees with their conduct, nondiscrimination law has now overridden free 

speech rights. 

At this point, the objection might be raised that conformity is merely the price of citizenship.106 

That cannot be. The First Amendment protects the right to speak, and in most cases to act, in 

accord with one’s beliefs. This is particularly true when one is acting out of religious conviction. 

Even aside from the First Amendment, there has long been a cultural understanding that religion, 

specifically Judaism and Christianity, have long enjoyed an influential role in the life of our 

country. We do not have an established religion, but the assumptions that undergird our laws, 

government, and culture spring from Judeo-Christian principles.107

IV. The HHS Mandate and Religious Liberty 

Perhaps today’s highest-profile conflict between religious liberty and nondiscrimination norms is 

the HHS contraception mandate. HHS promulgated regulations under the Affordable Care Act 

(Obamacare) that require employers to provide employee health insurance that includes coverage 

for contraceptive and abortifacient drugs. 

One of the interesting aspects of the HHS mandate is that the religious liberty conflict is entirely 

a creation of HHS. The contraception mandate is not part of the Affordable Care Act’s text. 

Congress did not create the contraceptive mandate. Rather, HHS used a provision of the ACA 

that requires insurance plans to include “preventive care” services to add a requirement that the 

 

106 Elane Photography, LLC v. Willock, 309 P.3d 53, 80 (N.M. 2013) (Bosson, J. concurring) (“the Huguenins have 

to channel their conduct ... it is the price of citizenship.”). 

107 Washington’s Farewell Address, available at http://avalon.law.yale.edu/18th_century/washing.asp. 

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. 

In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human 

happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, 

ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. 

Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of the religious 

obligation desert the oaths which are the instrument of investigation in courts of justice. And let us with caution 

indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence 

of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national 

morality can prevail in exclusion of religious principle. 

It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends 

with more or less force to every species of free government. Who that is a sincere friend to it can look with 

indifference upon attempts to shake the foundation of the fabric? 
68 Peaceful Coexistence Report 

plans provide contraceptive and abortifacient drugs.108 HHS could have opted not to include 

contraceptives and abortifacients as mandatory parts of insurance plans, or it could have required 

insurance plans to provide contraceptive drugs only when the drugs are prescribed for a noncontraceptive medical reason. But it did not adopt such a reasonable course. Instead, despite 

receiving tens of thousands of comments objecting to the contraceptive mandate on religious 

grounds during the formal comment period alone, HHS finalized the rule.109

This series of events suggests two possibilities. One, HHS might not have realized that a 

significant number of religious people believe that the use of contraceptives or abortion-causing 

drugs (or both) is sinful, and that paying for such drugs through a healthcare plan implicates 

them in the sin. Nevertheless HHS did not abandon the rule when it realized that many people 

objected to the rule on religious grounds. Two, HHS did realize that people would object to the 

rule, but was determined to proceed anyway. Perhaps knowledge of the opposition added a little 

extra relish to adopting the rule.110

Either way, HHS should not have proposed the rule, and should have abandoned the rule when 

opposition became clear. As Ed Whelan stated, “By dragooning employers to be the vehicle for 

increasing access to contraceptives and abortifacients, the Obama administration is putting many 

Americans to a grave test of conscience—and it is doing so gratuitously, for an end that could be 

easily accomplished through other means.”111 If an employer does not provide insurance that 

covers the drugs to which they object they face ruinous fines. 

The interests on the other side are not as weighty as religious liberty, despite the government’s 

portrayal of cost-free (to the employee) contraceptives and abortifacients as “benefits of great 

importance to health and well-being.”112 A tone of wonderment pervades the government’s brief 

and regulations as they explain how very, very important it is that women have free 

contraceptives and abortifacients, as though they only just discovered that women sometimes 

become pregnant, and the prevention of this unlovely state of affairs is now the most pressing 

issue facing the nation. One hearing witness argues that the HHS mandate is necessary to assure 

women’s equality.113 Yet no one is preventing women from using any of these drugs or devices. 

 

108 Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient 

Protection and Affordable Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012) (to be codified at 26 C.F.R. pt. 54, 29 C.F.R. 

pt. 2590, 45 C.F.R. pt. 147). 

109 Id. at 8726 (“The Department received over 200,000 responses to the request for comments on the amended 

interim final regulations.”). 

110 Whelan Statement, infra at 276. 

111 Whelan Statement, infra at 277. 

112 Brief for Petitioner at 13, Sebelius v. Hobby Lobby Stores, Inc., No. 13-354 (2013). 

113 U.S. Commission on Civil Rights, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil 

Liberties, Mar. 22, 2013, at 91 [hereinafter “Transcript”] (“Women’s equality is at stake in the contraceptive cases”). 
Commissioners’ Statements 69 

They are free to purchase them and use them as often as they like. Their employer only asks not 

to be in any way involved in procuring these items, whether it is through purchasing an insurance 

plan that pays for them (in the case of for-profit businesses) or through delegating someone else 

to provide them (in the case of religious organizations).114 Similarly, if a woman believes that 

insurance coverage of contraceptives and abortifacients is a great benefit to her financial wellbeing, she is free to find employment at one of the many, many employers who have no qualms 

about providing such things. As Professor Richard Epstein writes: 

A robust interpretation of freedom of association blocks the contraceptive 

mandate, not just for religious organizations, however defined, but for every 

group, regardless of its purposes or members. Any group that wants to 

supply contraceptive services is, of course, free to do so. But any group that 

opposes the mandate is free to go its separate way. ... In a competitive 

world, firms can compete by offering or denying particular benefits, without 

the state having to second-guess its choices.115

The republic somehow limped along for 223 years without requiring employers to provide free 

contraceptives and abortifacients. In the interest of protecting religious liberty and free 

association, it can continue to do so. At least in the case of closely-held corporations, the 

Supreme Court apparently agrees.116

a. For-Profit Businesses 

Essentially, two types of plaintiffs challenged the HHS mandate. The first is for-profit 

employers who were required to purchase insurance plans that include coverage for 

contraceptives and abortion-causing drugs. The second is non-profit organizations that are 

required to fill out a form that states that they have religious objections to providing abortioncausing drugs and contraceptives and that directs their insurance company to provide the drugs. 

The Supreme Court granted certiorari in two for-profit cases involving the HHS mandate. The 

cases involved the companies Hobby Lobby, Mardel, and Conestoga Wood. The owners of 

Hobby Lobby, Mardel, and Conestoga Wood objected to providing coverage for four types of 

 

114 Robert P. George, Comment to the U.S. Commission on Civil Rights, at 3 (2016) (on file with the Commission). 

Lurking behind the name-calling and the efforts to stigmatize and marginalize advocates of the robust protection of 

conscience is a fundamental logical flaw. The “gender discrimination” claim presupposes that the refusal to pay for 

something, or to participate in something, is the legal and moral equivalent of denying a third party access to that 

thing. This claim is plainly false and directs attention away from the real issue, which is not a problem of access, but a 

desire to shift the costs and responsibilities of access to unwilling third parties who object on moral and religious 

grounds to, for example, the use of abortion-inducing drugs to end nascent human lives. 

115 Richard A. Epstein, Rethinking the Contraceptive Mandate, DEFINING IDEAS (Feb. 10, 2014), available at

http://www.hoover.org/publications/defining-ideas/article/168086. 

116 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). 
70 Peaceful Coexistence Report 

drugs and devices that may cause early abortions, including Plan B (the “morning-after” pill) and 

Ella (the “week-after” pill).117

Plan B, Ella, and some IUDs can cause early abortions by preventing implantation of a human 

embryo. That is a scientific fact and the government has conceded it.118 The question, then, is 

whether it is licit to end this nascent human life. That question may of course be answered 

without recourse to divine revelation but it is a moral question that many faiths take very 

seriously and believe affect a person’s eternal destiny. Similarly, Christian churches that teach 

that the use of artificial contraception is a sin may seem odd and backward but their teaching rests 

on their understanding of the human person’s relationship and duty to God and other people.119 

There is no scientific dispute. It is a purely moral and religious dispute and one in which the 

government has no right to pronounce judgment and no compelling interest in breaking the 

consciences of believers. 

The government argued that because of their corporate status, for-profit businesses cannot invoke 

RFRA.120 They argued that RFRA protects only individuals, churches, and religious 

communities.121 The text of RFRA provides: “Government shall not substantially burden a 

person’s exercise of religion even if the burden results from a rule of general applicability, 

except as provided in subsection (b) of this section.”122 In an attempt to avoid having the courts 

apply strict scrutiny to the challenged rule the government tried to side-step the problem by 

removing Hobby Lobby from the covered entities. “Person” is not defined in the statute, 

although several other terms are defined. Thus, the government argued that for-profit 

corporations are not “persons.” However, the “Dictionary Act” provides “In determining the 

meaning of any Act of Congress, unless the context indicates otherwise — ... the words ‘person’ 

and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and 

 

117 Brief for Respondent at 9-10, Sebelius v. Hobby Lobby Stores, Inc., No. 13-354 (2013); Brief for Petitioners at 5, 

Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356 (2013). 

118 See Donna Harrison, M.D., Emergency Contraception Can Cause Abortion, THE PUBLIC DISCOURSE (Dec. 10, 

2013), available at http://www.thepublicdiscourse.com/2013/12/11685/; Brief for Petitioner at 9 n. 4, Sebelius v. 

Hobby Lobby Stores, Inc., No. 13-354 (2013) (“ a copper IUD ... possibly [prevents] implantation (of a fertilized egg 

in the uterus) [Plan B] may inhibit implantation ... by altering the endometrium ... [Ella] may also work by altering 

the endometrium in a way that may affect implantation....”). 

119 Charles J. Chaput, O.F.M., Archbishop of Philadelphia, Comment to the U.S. Commission on Civil Rights, at 3 

(2013)(on file with the Commission); see also Pope Paul VI, HUMANAE VITAE 11-14 (1968), available at

http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_25071968_humanae-vitae_en.html. 

120 Brief for Petitioner at 12-13, Sebelius v. Hobby Lobby Stores, Inc., 134 S.Ct. 678 (2014) (No. 13-354). 

121 Id. at 13. 

122 42 U.S.C. § 2000bb-1. 
Commissioners’ Statements 71 

joint stock companies, as well as individuals.”123 This would obviously cover for-profit 

corporations.124

The government argued that the Dictionary Act did not apply in this instance, and pointed out 

that none of the Supreme Court’s pre-Smith decisions suggested that for-profit corporations 

could exercise religion.125 However, the government did not present a case in which the Supreme 

Court said that for-profit corporations could not exercise religion.126 Furthermore, as Justice 

Alito wrote, in the only pre-Smith case involving a for-profit corporation, no member of the 

Court suggested that a for-profit corporation could not exercise religion even though the state 

had made the argument.127

If the Court had adopted the government’s reasoning, there would have been profound 

consequences, including in the area of abortion. There is no political or cultural issue that is as 

fiercely debated as abortion and the question of whether the Affordable Care Act would require 

Americans to pay for their fellow-citizens’ abortions was one of the primary objections to the 

legislation. 

However, during oral argument in Hobby Lobby, Justice Kennedy asked Solicitor General 

Verrilli if, theoretically, a for-profit corporation could be forced to pay for abortions.128 The 

Solicitor General said that there were no laws on the books that would require that - in fact, it is 

the opposite. Under further questioning, he admitted that if the laws were changed there was, in 

 

123 1 U.S.C. § 1. 

124 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2768-69 (2014)(“We see nothing in RFRA that suggests a 

congressional intent to depart from the Dictionary Act definition . . . . No known understanding of the term “person” 

includes some but not all corporations.”). 

See also Korte v. Sebelius, 735 F.3d 654, 674-75 (7th Cir. 2013) (Sykes, J.) 

Nothing in RFRA suggests the Dictionary Act’s definition of “person” is a “poor fit” with the statutory scheme. ... A 

corporation is just a special form of organizational association. No one doubts that organizational associations can 

engage in religious practice. The government accepts that some corporations—religious nonprofits—have religiousexercise rights under both RFRA and the Free Exercise Clause. Indeed, the Supreme Court has enforced the RFRA 

rights of an incorporated religious sect .... Accordingly, we take it as both conceded and noncontroversial that the use 

of the corporate form and the associated legal attributes of that status—think separate legal personhood, limitations on 

owners’ liability, special tax treatment—do not disable an organization from engaging in the exercise of religion 

within the meaning of RFRA (or the Free Exercise Clause, for that matter). 

125 Brief for Petitioner at 21-22, Sebelius v. Hobby Lobby Stores, Inc., 134 S.Ct. 678 (2014) (No. 13-354). 

126 Brief for Petitioner at 18, Sebelius v. Hobby Lobby Stores, Inc., 134 S.Ct. 678 (2014) (No. 13-354) (noting that in 

Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 336 U.S. 617 (1961), the Supreme Court expressly did not 

decide whether a for-profit business could exercise religion.”). 

127 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2772-73 (2014). 

128 Sebelius v. Hobby Lobby, oral argument transcript, March 25, 2014, at 75, available at

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf. 
72 Peaceful Coexistence Report 

his view, nothing in principle that would prevent for-profit corporations from being forced to 

pay for abortions.129

This could well have become another area of conflict between religious liberty and nondiscrimination. As is the case with the contraceptive mandate a refusal to pay for abortion 

services could be recast as gender discrimination.130 Even if this administration did not pursue 

such a policy a future administration might do so. The difference between forcing Hobby Lobby 

to pay for the morning-after pill and for a second-trimester abortion is only a matter of political 

will and public distaste, both of which could be overcome by a sufficiently determined 

administration. 

The government’s extreme position suggests an alternative possibility for the lack of cases 

addressing whether for-profit corporations can exercise religion-namely, that the government has 

never before sought to burden the consciences of corporations and their owners and directors by 

requiring them to, as they see it, directly finance the destruction of innocent human life. The 

government never before required almost all employers to provide health benefits to employees, 

and decreed exactly what those health benefits must be. One of the ways a diverse society 

survives is by giving citizens space to organize life as they see fit. When the government tells 

millions of business owners that they must provide a one-size-fits-all health benefits package, 

regardless of their religious objections, the government has removed much of the flexibility that 

allowed people to live their lives peacefully. That may be why there are not more cases about 

the free exercise rights of for-profit businesses. 

Regardless of why there were not earlier cases about the free exercise rights of for-profit 

corporations, a majority of the Supreme Court was unimpressed by the government’s arguments. 

Justice Alito wrote for the majority that there is no indication in the text of RFRA that Congress 

intended to depart from the Dictionary Act, and the Dictionary Act encompasses corporations.131 

Furthermore: 

HHS concedes that a nonprofit corporation can be a ‘person’ within the meaning 

of RFRA.... This concession effectively dispatches any argument that the term 

‘person’ as used in RFRA does not reach the closely held corporations involved in 

 

129 Id. at 75-76. 

130 Robert P. George, Comment to the U.S. Commission on Civil Rights, at 3 (2013)(on file with the Commission). 

Lurking behind the name-calling and the efforts to stigmatize and marginalize advocates of the robust protection of 

conscience is a fundamental logical flaw. The “gender discrimination” claim presupposes that the refusal to pay for 

something, or to participate in something, is the legal and moral equivalent of denying a third party access to that 

thing. This claim is plainly false and directs attention away from the real issue, which is not a problem of access, but a 

desire to shift the costs and responsibilities of access to unwilling third parties who object on moral and religious 

grounds to, for example, the use of abortion-inducing drugs to end nascent human lives. 

131 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2768-69 (2014). 
Commissioners’ Statements 73 

these cases. No known understanding of the term ‘person’ includes some but not 

all corporations.132

HHS also claimed that for-profit corporations are not protected by RFRA because they do not 

exercise religion.133 The majority found this argument unpersuasive as well. After all, HHS has 

conceded that non-profit corporations could exercise religion.134 And in Braunfeld v. Brown, the 

Court assumed that Jewish merchants had a cognizable free exercise claim even though they 

operated for-profit businesses.135 Surely HHS cannot truly believe that merely changing the form 

of a business from a sole proprietorship or partnership to a corporation extinguishes the owners’ 

free exercise rights.136 More importantly, corporations may pursue “any lawful purpose” 

permitted under the laws of the state in which they are incorporated.137 Simply being for-profit 

corporations does not require them to seek to maximize profit and ignore all other concerns. Just 

as a corporation can sell fair-trade coffee and make a smaller profit in furtherance of the owners’ 

social justice commitments, Hobby Lobby can pursue various initiatives in furtherance of its 

owners’ Christian commitments.138

Although not mentioned in Justice Alito’s opinion, the Court addressed a similar question in 

Citizens United v. FEC.

139 If a corporation can speak, why can’t it exercise religion?140 The 

government argued in Citizens United that the government had a particular interest in regulating 

the expenditures of corporations because of the benefits of the corporate form.141 The Court 

rejected this argument. The ability to exercise one’s First Amendment rights does not turn on the 

question of corporate form. Justice Kennedy wrote, “The First Amendment does not permit 

 

132 Id. at 2768-69. 

133 Id. at 2769. 

134 Id. at 2769. 

135 Braunfeld v. Brown, 366 U.S. 599 (1961). 

136 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2767, 2769-70 (2014). 

137 Id. at 2770-71. 

138 Id. at 2771 (“If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they 

may not further religious objectives as well.”). 

139 Citizens United v. FEC, 558 U.S. 310 (2010). 

140 I realize, as Eugene Volokh writes, that there are distinctions between the two lines of cases. Eugene Volokh, 

SEBELIUS V. HOBBY LOBBY: CORPORATE RIGHTS AND RELIGIOUS LIBERTIES, 40-41 (2014). 

141 Brief for Appellee at 15, Citizens United v. Fed. Elec. Comm., 558 U.S. 310 (2010) (No. 08-205). 

Congress has historically imposed particularly stringent limits on the electoral advocacy of corporations and labor 

unions. Those restrictions reflect “a legislative judgment that the special characteristics of the corporate structure 

require particularly careful regulation,” and this Court has consistently ‘respect[ed]” that judgment. FEC v. Beaumont, 

539 U.S. 146, 155 (2003) (quoting FEC v. National Right to Work Comm., 459 U.S. 197, 209-210 (1982). In 

particular, because of the numerous advantages that the corporate form confers, a corporation’s ability to pay for 

electoral advocacy has “little or no correlation to the public’s support for the corporation’s political ideas.” 

McConnell, 540 U.S. at 05 (quoting Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 660 (1990)). 
74 Peaceful Coexistence Report 

Congress to make these categorical distinctions based on the corporate identity of the speaker . . . 

.”142 In the contraceptive mandate cases involving for-profit businesses the government argues 

that the owners of the corporations must provide contraceptives to their employees because they 

have availed themselves of the benefits of the corporate form.143 The government does not 

address why a corporation can exercise one First Amendment right but cannot exercise another. 

As Justice Alito wrote in Hobby Lobby, we protect the constitutional rights of corporations 

because corporations consist of people, and we are bound to protect their constitutional rights.144 

It is true, as Justice Ginsburg writes in her dissent, “Corporations . . . ‘have no consciences, no 

beliefs, no feelings, no thoughts, no desires.’”145 But the people who own and operate 

corporations do, and that is why we protect the constitutional rights of corporations.146

The government also argued that if the for-profit business owners are not forced to provide 

contraceptives and abortion-causing drugs they believe are sinful they are forcing their religious 

beliefs on employees who may disagree.147 The Court addressed a similar concern (also raised 

by the government) in Citizens United, where the government argued that “corporate 

independent expenditures can be limited because of its interest in protecting dissenting 

shareholders from being compelled to fund corporate political speech.”148 The Court rejected 

this argument as well. The government cannot infringe the First Amendment rights of one group 

simply because other people may disagree with how the group exercises its First Amendment 

rights. 

i. For-Profit Businesses and RFRA 

If for-profit businesses are persons within the meaning of RFRA the next step is to apply the 

statute. RFRA provides that “Government shall not substantially burden a person’s exercise of 

religion even if the burden results from a neutral rule of general applicability” unless the rule can 

survive strict scrutiny. The first step is to determine whether there is a substantial burden on the 

person’s religious practice. In order for a substantial burden to exist the practice must be both 

 

142 Citizens United, 558 U.S. at 365. 

143 Brief for Petitioner at 12-13, Sebelius v. Hobby Lobby Stores, Inc., 134 S.Ct. 678 (2014) (No. 13-354) (“Granting 

the relief respondents seek for profit-making corporate entities engaged in commercial activity would expand the 

scope of RFRA far beyond anything Congress contemplated; would disregard deeply engrained principles of 

corporation law that should inform the interpretation of RFRA as they do federal statutes generally”). 

144 Hobby Lobby, 134 S.Ct. at 2768. 

145 Id. at 2794 (Ginsburg, J., dissenting, quoting Citizens United v. Federal Election Comm’n, 558 U.S. 310, 466 

(citations omitted) (2010) (Breyer, J., concurring in part and dissenting in part)). 

146 Volokh, supra note 140 at 41-42. 

147 Brief for Petitioner at 13, Sebelius v. Hobby Lobby Stores, Inc., 134 S.Ct. 678 (2014) (No. 13-354) (“[Applying 

RFRA to Hobby Lobby] would deny to thousands of employees (many of whom may not share the Greens’ religious 

beliefs) statutorily-guaranteed access to benefits of great importance to health and well-being.”) 

148 Citizens United, 558 U.S. at 361-62. 
Commissioners’ Statements 75 

explicitly religious and sincere.149 It does not have to seem reasonable to the court—that is 

outside the court’s competence. If the person’s practice is both religious and sincere you must 

examine whether the government’s action is truly burdensome. “[T]he substantial burden 

inquiry evaluates the coercive effect of the governmental pressure on the adherent’s religious 

practice and steers well clear of deciding religious questions.”150 Justice Alito wrote, “we have 

little trouble concluding” that the Mandate constitutes a substantial burden.151 The business 

owners are forced to choose between funding an act they believe to be intrinsically evil and 

being subject to ruinous fines.152

We must now apply strict scrutiny. First we must determine the government’s interest and 

whether it is compelling. Only the gravest interests may be considered “compelling.”153 The 

government cites two compelling interests, generally described as “public health” and “gender 

equality” or “assuring that women have equal access to health care services.”154 These purported 

interests are too broad to qualify as compelling interests.155 In Hobby Lobby, the government 

also claimed that “the mandate serves a compelling interest in ensuring that all women have 

 

149 Korte, 735 F.3d at 682-683. 

150 Id. at 683. 

151 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2775 (2014). 

152 Id. at 2775-79 (2014). See also Brief for Respondent at 37-38, Sebelius v. Hobby Lobby Stores, Inc., 134 S.Ct. 678 

(2014) (No. 13-354)(“If Respondents continue to offer their current health plan, which comports with their religious 

beliefs but not the mandate, Respondents face fines of $100 per affected individual per day, which could total ‘over 

$1.3 million per day, or close to $475 million per year.’ If Respondents drop insurance altogether, they would face 

annual penalties of $2,000 per employee, or more than $26 million” (citations omitted)); Brief for Petitioner at 8, 

Conestoga Wood Specialties Corp. v. Sebelius, 134 S.Ct. 678 (2014) (No. 13-356) (“For Conestoga, that fine could 

‘amount to $95,000 per day,’ which would ‘rapidly destroy the business and the 950 jobs that go with it.’ If 

Conestoga attempted to avoid these fines by dropping its healthcare plan altogether, it would incur a government 

penalty ... (totaling $1.9 million) (citations omitted)); Korte v. Sebelius, 735 F.3d 654, 663 (7th Cir. 2013) (Sykes, J.) 

(“refusing to comply would financially devastate K&L Contractors and the Kortes as its owners ... the monetary 

penalties would total $730,000 per year”); Id. at 664 (“the Grote Family and Grote Industries object on religious 

grounds to providing coverage for contraception, abortion-causing drugs, and sterilization procedures. . . . the 

company faced an annual penalty of almost $17 million .....”). 

153 Korte, 735 F.3d at 685-86. 

The compelling-interest test generally requires a “high degree of necessity.” Brown v. Entm't Merchs. Ass'n, 131 S.Ct. 

2729, 2741 (2011). The government must “identify an ‘actual problem’ in need of solving, and the curtailment of [the 

right] must be actually necessary to the solution.” Id. at 2738 (citations omitted). In the free-exercise context, “only 

those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free 

exercise of religion.” Yoder, 406 U.S. at 215. “[I]n this highly sensitive constitutional area, only the gravest abuses, 

endangering paramount interests, give occasion for permissible limitation....” Sherbert, 374 U.S. at 406. (internal 

quotation marks and alteration omitted). The regulated conduct must “pose[ ] some substantial threat to public safety, 

peace[,] or order.” Id. at 403. Finally, “a law cannot be regarded as protecting an interest of the highest order ... when 

it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (internal 

quotation marks omitted) [citations omitted]. 

154 Korte, 735 F.3d at 686; Zubik v. Sebelius, 2013 WL 6118696 at *28 (W.D. Pa. 2013). 

155 Korte, 735 F.3d at 686. 
76 Peaceful Coexistence Report 

access to all FDA-approved contraceptives without cost-sharing.”156 The Court simply assumed 

that the government’s interest was compelling.157

With the government’s interest recast as “increasing women’s access to free contraception,” can 

it qualify as a compelling interest? There is still litigation swirling around various provisions of 

the HHS mandate, so it is worth examining this issue in detail. I do not credit the government’s 

far-fetched argument that the provision of free contraceptives to employed women is as vital to 

the republic as the financial health of the Social Security system.158 The Constitution does not 

mandate the free provision of any consumer good. Why should anyone have a right to a 

consumer good funded by their fellow citizens? Women’s equality does not depend upon having 

free (to them) contraceptives;159 it is guaranteed by the Fourteenth and Nineteenth Amendments. 

Except in cases where contraceptives are prescribed to address non-pregnancy related medical 

conditions contraceptives are not, strictly speaking, medically necessary. They may be necessary 

for women (and by extension men) to live as they wish, but they are not medically necessary. 

The women affected by the mandate are by definition employed so if they value contraception 

they can purchase it.160 And truly low-income women already have access to free or very 

inexpensive contraceptives through the government.161

 

156 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2779 (2014). 

157 Id. at 2780. 

158 Korte, 735 F.3d at 686. 

159 Griffin Statement, infra at 220 (“the federal contraceptive mandate has unfolded as a war between religious 

freedom on one side and women’s equality on the other”). 

160 Richard A. Epstein, Hobby Lobby vs. the Contraception Mandate, DEFINING IDEAS, July 7, 2014, available at

http://www.hoover.org/research/hobby-lobby-vs-contraceptive-mandate. 

Rational basis has no place under the RFRA, which requires the state to show that the supposed compelling interest in 

women’s healthcare justifies a statutory mandate that disrupts all preexisting practices whereby firms did not supply 

the mandated contraception services. But women’s healthcare is no more a compelling interest than men’s healthcare. 

The elaborate ACA legislative findings that uninsured women need healthcare fail miserably to explain the 

employer’s duty to subsidize anyone’s healthcare. Neither the ACA’s legislative history nor the [sic] Justice 

Ginsburg’s dissent identifies any systematic market disruption remotely comparable to natural disasters, domestic 

uprisings, and foreign invasions. The orderly private market for contraceptive services negates any government 

necessity to make employers pay for them. Nothing in the RFRA, of course, prevents the state from providing those 

benefits out of general revenues. 

161 Helen Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILLANOVA L.

REV. 379, 424-25 (2013). 
Commissioners’ Statements 77 

Furthermore, it is difficult for the government to claim that employer-provided contraceptives 

without a co-pay are a compelling interest given two facts: first, numerous health insurance plans 

were not required to provide contraceptives without cost-sharing because they were 

“grandfathered” under the terms of the Affordable Care Act; second, from the ratification of the 

Constitution in 1789 until 2010, it was the right of every employer to decide whether or not to 

include contraceptives and abortion-causing drugs in the health plan offered by their company. 

Yet now the government insists that virtually every employer must be required to provide 

contraceptives to their employees, no exceptions, just as the government insisted in O Centro 

that they could not allow exceptions to the Controlled Substances Act to accommodate a 

religious group. The Court responded: if the government’s interest in prohibiting the use of the 

hallucinogen hoasca for religious ceremonies really is compelling, why does the Controlled 

Substances Act permit the Attorney General to exempt certain people from the Act’s 

requirements?162 And why has the Attorney General provided an exemption for the use of 

peyote by the Native American Church for the past thirty-five years?163 The Court notes that the 

peyote exception has been part of the Controlled Substances Act since the Act’s inception thirtyfive years earlier. The right not to pay for or provide drugs or devices you believe to be gravely 

immoral is rooted in two-and-a-quarter centuries of American practice. The application of the 

mandate upon objecting employers is not merely inconsistent with previous practice, as in O 

Centro—it turns the existing relationship between business owners and the government on its 

head. A true compelling interest would have emerged sometime sooner than the day before 

yesterday. As in O Centro, the reason it did not emerge sooner is that the government’s asserted 

interest is not, in fact, compelling.164

Additionally, as Professor Helen Alvaré explains, there is substantial reason to think that the 

mandate will do little to advance the government’s interest in preventing unintended 

pregnancies. Aside from the questionable assumptions that the government actually has an 

interest in preventing unintended pregnancies and that “unintended” pregnancies are necessarily 

“unwanted” pregnancies, “cost” is not one of the main reasons women give for why they were 

not using contraception. “[A] CDC report ... shows that among the eleven percent of American 

 On the first point, regarding the targeted audience: rates of unintended pregnancy are highest among groups the 

mandate will not affect—the poorest adolescents and women who are already served by myriad federal and state 

programs. ... The [IOM] Report already acknowledges that low-income women are amply supplied with free or 

almost free contraception. Page 108 of the Report refers to contraceptive coverage as “standard practice for most 

federally-funded insurance programs.” It cites its availability in community health centers, family planning centers, 

and Medicaid. It goes further with respect to Medicaid, and points out that since 1972 it has “required coverage for 

family planning in all state programs and has exempted family planning services and supplies from cost-sharing 

requirements. It points out that twenty-six states also have their own Medicaid family programs for women who do 

not technically qualify for Medicaid. 

162 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432-33 (2006). 

163 Id. at 433. 

164 Id. at 439. 
78 Peaceful Coexistence Report 

women and girls at risk of unintended pregnancy who are not practicing contraception, lack of 

access is not a significant reason.”165 Women who are employed, who are the ones covered by 

the Mandate, already have extensive access to contraceptives through insurance.166 It is 

questionable that the government’s interest in extending free contraceptives to the small number 

of employed women who do not receive coverage through their health plan is sufficiently 

weighty to constitute a compelling interest. Furthermore, “[R]ates of unintended pregnancy are 

highest among groups the Mandate will not affect—the poorest adolescents and women who are 

already served by myriad federal and state programs. The [IOM] Report itself makes this 

observation; it notes that non-use of contraceptives is particularly likely among women who 

‘have a low income, who are not high school graduates, and who are members of a racial or 

ethnic minority group.’”167 It is also questionable whether covering emergency contraception 

without cost-sharing will reduce unintended pregnancies, either because the women who take 

emergency contraception already are at low risk of pregnancy, or because some women change 

their behavior in response to the availability of emergency contraception.168

If it is ambiguous whether the government will actually achieve its supposedly compelling 

interest, or that the warned-of bad effects may or may not occur, it is difficult to make a goodfaith argument that the interest is indeed compelling. If the evidence regarding the importance of 

the government’s interest or the likelihood of that interest occurring is basically balanced, the 

government has failed to demonstrate that it has a worthy compelling interest. In its decision in 

 

165 Alvaré, supra note 161 at 427. 

166 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 109 (2011) [hereinafter IOM

2011 REPORT] (“A more recent 2010 study of employers found that 85 percent of large employers and 62 percent of 

small employers offered coverage of FDA-approved contraceptives.”). 

167 Alvaré, supra note 161 at 424, quoting IOM 2011 Report at 102. 

168 Tal Gross, Jeanne LaFortune, Corinne Low, What Happens the Morning After? The Costs and Benefits of 

Expanding Access to Emergency Contraception, 33 J. POL’Y ANALYSIS & MANAG. VOL. 1, 70, at 84 (2013). 

If women who take EC [emergency contraception] are actually at a decreased risk of pregnancy, then we would 

expect very small effects from expansion of access. For instance, women who take EC may do so principally because 

another method of contraception has failed. Some studies indicate this is indeed the case (Trussel et al., 2004). If 

women who consume EC face a lower risk of pregnancy from a single sexual encounter than average, say 2 percent, 

then the pregnancies averted by additional EC access would be negligible relative to total births. 

Similarly, if some women change their sexual behavior in response to the availability of EC, small and undetectable 

impacts are expected. The U.S. population is much larger than the number of EC pills consumed, thus, it takes only a 

small fraction of all U.S. women changing their behavior to offset the decrease in births driven directly by EC. ... 

Under either scenario, very large changes to births or abortions are unlikely, given that each additional pill prevents 

pregnancy from only a single sexual encounter. More broadly, unexpected sexual encounters may account for a small 

percentage of overall pregnancies. Roughly half of women seeking abortions had been using some form of 

contraception, and few report unexpected sex as a factor in their abortion (Jones, Darroch, & Henshaw, 2002). If 

individuals who use EC actually face a low risk of unintended pregnancy, and individuals most likely to experience 

unintended pregnancies are unlikely to seek EC, then the impact of expanded access will be greatly diminished. We 

conclude that policies offering OTC access to EC avert a private cost in acquiring the pill through a physician, but do 

not avert the social cost of unintended pregnancy [emphasis added]. 
Commissioners’ Statements 79 

O Centro, which was upheld by the Supreme Court, the “District Court concluded that the 

evidence on health rises was ‘in equipoise,” and similarly that the evidence on diversion was 

‘virtually balanced.’ In the face of such an even showing, the court reasoned that the 

Government had failed to demonstrate a compelling interest ....”169

In Hobby Lobby, however, the government survived application of the compelling interest test 

only to be skewered by the least-restrictive-means test.170 Justice Alito noted that the 

government’s argument was fatally undermined by the existence of the so-called 

“accommodation” for objecting religious organizations.171 HHS could simply make this option 

available to for-profit businesses, though concededly this may not satisfy all religious 

objections.172

Set aside the accommodation for a moment, as some religious businesses will likely consider it 

to burden their religious exercise, as do a number of religious non-profits. Why is HHS so 

fixated on providing contraceptives in this way? Presumably the government’s goal is not 

merely to have contraceptives available for free to consumers, but for more women to actually 

start using contraception regularly. If that is the goal, why doesn’t the FDA simply mandate that 

all forms of oral contraceptives be sold over the counter? Plan B is now available over the 

counter, and being able to purchase regular oral contraceptives over the counter would likely 

reduce the cost of the drugs and would be less time-consuming than making an appointment for a 

prescription and then going to the pharmacy. Or the government could simply reimburse 

pharmacies directly for any contraceptives they dispense. That would not be more complicated 

than reimbursing TPAs and insurers and providing them with an extra financial incentive. Or the 

government could simply have contractors such as community health centers simply dispense 

free contraceptives to all comers. None of these options need involve objecting employers at all. 

Second, the government’s exemption of numerous classes of employers undermines the “least 

restrictive means” prong as well as the compelling interest. “The regulatory scheme 

grandfathers, exempts, or “accommodates” several categories of employers from the 

contraception mandate and does not apply to others (those with fewer than 50 employees).173 

 

169 Gonzalez v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 426 (2006). 

170 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). 

171 Id. at 2781-82. 

172 In response to the Hobby Lobby decision, HHS issued new regulations extending the accommodation to closelyheld for-profit businesses. Department of the Treasury, Department of Labor, Department of Health and Human 

Services, “Coverage of Certain Preventive Services Under the Affordable Care Act,” 80 Federal Register 41318, 

41346-7 (July 14, 2015), available at http://www.gpo.gov/fdsys/pkg/FR-2015-07-14/pdf/2015-17076.pdf. 

173 Department of the Treasury, Department of Labor, Department of Health and Human Services, “Coverage of 

Certain Preventive Services Under the Affordable Care Act,” 80 Federal Register 41318, 41332 (July 14, 2015) 

(“Thirty-seven percent of employers offering health benefits offered at least one health benefit plan in 2014”), 

available at http://www.gpo.gov/fdsys/pkg/FR-2015-07-14/pdf/2015-17076.pdf. 
80 Peaceful Coexistence Report 

Since the government grants so many exceptions already, it can hardly argue against exempting 

these plaintiffs.”174 The Court did not address this issue in regard to the least-restrictive-means 

test in Hobby Lobby but it may have occasion to do so in future litigation.175

b. Religious Groups 

Religious groups are the second set of plaintiffs challenging the HHS mandate, most famously 

the Little Sisters of the Poor, an order of Catholic nuns who care for the elderly poor. 

Some religious organizations qualify for an outright exemption from the HHS mandate. 

Unfortunately, this exemption is limited to “houses of worship and their integrated 

auxiliaries.”176 The narrow class of entities covered by the exemption has the strange effect of 

excluding obviously religious employers such as the Little Sisters of the Poor. Because the Little 

Sisters are an independent order within the greater Catholic Church and not auxiliaries of any 

particular diocese (the Little Sisters operate thirty homes for the elderly poor within the United 

States) they are not considered a “religious employer.” The University of Notre Dame is not 

considered a religious employer, which may be surprising given that every president of the 

University must be a priest who is a member of the order of the Congregation of Holy Cross.177

HHS argues that religious groups that do not qualify for the exemption still have recourse to the 

so-called “accommodation.” The accommodation was revised after the Supreme Court’s 

decision in Hobby Lobby and after the Supreme Court granted an injunction to Wheaton 

College.178 The accommodation requires religious organizations like the Little Sisters of the 

Poor and Wheaton College to do one of two things: 1) self-certify that it is an eligible 

organization and that it objects on religious grounds to providing some or all contraceptive 

 

174 Korte, 735 F.3d at 686. 

175 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2763-4 (2014); Petition for a Writ of Certiorari, Little 

Sisters of the Poor Home for the Aged v. Burwell, July 15, 2015, at 5-6, available at http://www.becketfund.org/wpcontent/uploads/2015/07/2015-07-23-LSP-RSI-Petition_Final.pdf. 

176 Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39870-01, at 39874 (July 2, 

2013) (to be codified at 26 C.F.R. pt. 74, 29 C.F.R. pt. 2510 and 2590, 45 C.F.R. pr. 147 and 156). 

[T]he simplified and clarified definition of religious employer does not expand the universe of religious employers 

that qualify for the exemption beyond that which was intended in the 2012 final regulations, but only eliminates any 

perceived potential disincentive for religious employers to provide educational, charitable, and social services to their 

communities. The Departments believe that the simplified and clarified definition of religious employer continues to 

respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine 

the governmental interests furthered by the contraceptive coverage requirement. Houses of worship and their 

integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers 

to employ people of the same faith who share the same objection, and who would therefore be less likely than other 

people to use contraceptive services even if such services were covered under their plan. 

177 A religious order which counts as one of its members the late Father Theodore Hesburgh, C.S.C., president 

emeritus and a charter member of this Commission. 

178 Wheaton Coll. v. Burwell, 134 S.Ct. 2806 (2014). 
Commissioners’ Statements 81 

coverage, which it does by “executing EBSA Form 700 and [delivering] it to their insurer or 

third-party administrator (TPA)”;179 or notifying the Secretary of HHS that it is an eligible 

organization and objects for religious reasons to providing some or all contraceptive coverage.180 

If the organization follows the latter procedure it must provide information to HHS that allows 

HHS to identify the organization and arrange for its TPA or insurer to provide contraceptive 

coverage.181 HHS then uses EBSA Form 700, or, if the second option is used, simply notifies the 

TPA or insurer that the employer meets certain criteria established by HHS and has religious 

objections to providing contraceptives in its insurance plan. 

In the case of an organization with an “insured group health plan” - that is, “A benefit plan in 

which the employer employs a health insurance issuer to assume the risk of providing health 

insurance”182 - the employer’s opt-out really changes nothing other than adding a few 

administrative steps.183 The government requires the insurer to provide contraceptives in its 

insurance plans and whether or not the religious organization objects makes no substantive 

difference except that the religious organization supposedly will no longer be paying for the 

contraception.184 “When an organization submits the Form expressing an objection to providing 

contraceptive coverage, ‘the issuer has sole responsibility for providing such coverage’” and “In 

the context of insured plans, health insurance issuers are generally responsible for paying for 

contraceptive coverage when a religious non-profit opts out. The Department expects this will 

be cost-neutral for issuers because of the cost savings that accompany improvements in women’s 

health and lower pregnancy rates [citations omitted].”185

In a self-insured plan - one “in which the employer assumes the risk of providing health 

insurance”186 - the objecting organization must notify its TPA or HHS that it objects to providing 

contraceptive coverage. The TPA must then arrange for contraceptive coverage and “The TPA’s 

obligations are enforceable under the Employee Retirement Income Security Act (“ERISA”).”187 

 

179 Brief of Appellants at 14, Little Sisters of the Poor v. Sebelius, No. 1:13-cv-02611-WJM-BNB (10th Cir. Feb. 24, 

2014). 

180 Department of the Treasury, Department of Labor, Department of Health and Human Services, “Coverage of 

Certain Preventive Services Under the Affordable Care Act,” 80 Federal Register 41343-4 (July 14, 2015), available 

at http://www.gpo.gov/fdsys/pkg/FR-2015-07-14/pdf/2015-17076.pdf. 

181 Id. at 41344. 

182 Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1158 (10th Cir. 2015). 

183 Geneva College v. Secretary of U.S. Dep’t of Health and Human Services, 778 F.3d 422, 429 (3rd Cir. 2015)(“The 

submission of the form has no real effect on the plan participants and beneficiaries.”). 

184 One wonders how this will work in practice. Will insurance companies change the cost of insurance plans just for 

objecting organizations? 

185 Little Sisters of the Poor, 794 F.3d at 1165, 1166. 

186 Id. at 1158. 

187 Id. at 1166. 
82 Peaceful Coexistence Report 

However, “the Departments concede they lack authority to enforce those [federal] requirements 

as to self-insured “church plans,” which are group health plans established by a church or 

association of churches covering the church’s or association’s employees. Organizations that 

provide health care coverage for employees through self-insured church plans are exempt from 

regulation under ERISA [citations omitted].”188

This accommodation is arguably nothing more than a sleight of hand. When the insurer or TPA 

receives the form or notice they must arrange to provide contraceptive coverage for the 

employees at no cost to the employees (and in the case of universities, students).189 The money 

that pays for the contraceptives comes from the insurer or TPA (who also receive a federal 

subsidy) but the religious employer starts the process.190

i. Religious Groups and RFRA 

Even the government does not contest that religious groups qualify as “persons” under RFRA so 

we may pass over that in silence. The entire issue, then, swirls around the application of RFRA 

to the Little Sisters of the Poor and similarly situated groups. 

As mentioned above, religious groups are eligible for the “accommodation,” but they object to 

utilizing it, arguing that doing so “triggers” contraceptive coverage for their employees.191 Can 

RFRA protect them? The Supreme Court has granted seven petitions for certiorari that ask that 

very question.192

The first step, of course, is whether the challenged belief is sincere and whether the government 

substantially burdens religious exercise. The sincerity of the religious groups’ belief does not 

generally seem to be questioned by the government or the courts.193 The bone of contention is 

whether filling out EBSA Form 700 and submitting it to the group’s insurer or TPA, or notifying 

HHS of the organization’s objection, constitutes a substantial burden. Judge Posner has written, 

mis.”194 “The form is two pages long—737 words, most of it boring boilerplate; the passages we 

 

188 Id. at 1166. 

189 26 C.F.R. § 54.9815-2713A. 

190 Id.; 45 C.F.R. § 156.50. 

191 Geneva College v. Secretary U.S. Dep’t of Health and Human Services, 778 F.3d 422, 435 (3rd Cir. 2015). 

192 Order Granting Petitions for Certiorari in Zubik v. Burwell, No. 14-1418; Priests for Life v. HHS, No. 14-1453; 

Roman Catholic Archbishop v. Burwell, No., 14-1505; E. Tx. Baptist Univ. v. Burwell, No. 15-35; Little Sisters of 

the Poor v. Burwell, No. 15-105; So. Nazarene Univ. v. Burwell, No. 15-119; Geneva College v. Burwell, No. 15-

191(Nov. 6, 2015). 

193 See, e.g., East Texas Baptist University v. Sebelius, 2013 WL 6838893, at *11 (S.D. Tex. 2013) (“The government 

does not contend that the plaintiffs’ religious beliefs about abortion, abortifacients, or forced complicity through 

facilitation are insincerely held, unreasonable, or “fringe.”). 

194 Id. 
Commissioners’ Statements 83 

quoted earlier, the only ones of consequence, consist of only 95 words. Signing the form and 

mailing it to Meritain and Aetna could have taken no more than five minutes.”195

What is the substantial burden? Is it, as Judge Posner says, merely the paperwork involved? The 

plaintiffs say no. EBSA Form 700 informs the insurer or TPA that the employer is eligible for 

the accommodation and has religious objections to providing contraceptives in its insurance plan. 

Notifying HHS that the organization objects to providing the coverage has the same effect. 

When the insurer or TPA receives the form they must arrange to provide contraceptive coverage 

for the employees.196 The money that pays for the contraceptives comes from the insurer or TPA 

(who also receive a federal subsidy) but the religious employer starts the process.197

The Zubik/Persico appellees conceded that they have provided similar information as is required 

by the self-certification form to their third-party administrator in the past. However, their past 

actions barred the provision of contraceptive products, services, or counseling. Now, under the 

ACA, this information will be used to “facilitate/initiate the provision of contraceptive products, 

services, or counseling - in direct contravention to their religious tenets.198

The religious organizations argue that when they submit the form they trigger the provision of 

contraceptives and abortion-causing drugs they believe are gravely immoral. Yes, as the 

government says, third parties are carrying out the actions to which the plaintiffs object, but by 

signing the form the plaintiffs are directing the third party to engage in morally objectionable 

actions.199 It is not merely that plaintiffs object to engaging in sin themselves but also object to 

encouraging anyone else to engage in sin. 

As of this writing, the Second200, Third201, Fifth202, Sixth203, Seventh204, Tenth205, and District of 

Columbia206 courts of appeal have ruled against religious organizations’ challenges to the revised 

 

195 University of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th Cir. 2014) (Posner, J.). 

196 26 C.F.R. § 54.9815-2713A. 

197 26 C.F.R. § 54.9815-271A; 45 C.F.R. § 156.50.

198 Geneva College v. Secretary U.S. Dep’t of Health and Human Services, 778 F.3d 422, 433 (3rd Cir. 2015). 

199 Zubik v. Sebelius, 983 F.Supp.2d 576, 606 (W.D.Pa. 2013). 

[A]lthough the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan 

that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the 

responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular 

source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve 

or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially 

burdens their sincerely-held beliefs. 

200 Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2nd Cir. 2015). 

201 Geneva College v. Burwell, 778 F.3d 422 (3rd Cir. 2015). 

202 E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449(5th Cir. 2015). 

203 Michigan Catholic Conf. v. Burwell, 755 F.3d 372 (6th Cir. 2014). 
84 Peaceful Coexistence Report 

accommodation. The Eighth Circuit has ruled in favor of religious organizations’ challenge to 

the revised accommodation.207

The courts that ruled in favor of the government concluded that the rejiggered accommodation 

does not substantially burden the objecting parties. They determined that the burden was not 

substantial for two reasons: 1) the objecting organizations use the accommodation to “opt out” of 

the Mandate, not to “trigger” provision of contraceptives; and 2) the accommodation forbids the 

insurer or TPA from imposing any contraceptive-related costs on the objecting organization.208

Judge Posner, in a decision denying an injunction to the University of Notre Dame before the 

Supreme Court issued its decision in Hobby Lobby, described the burden as analogical to that of 

a Quaker who is granted a conscientious exemption from the draft but is told that someone else 

will be drafted in his stead. (Judge Hamilton repeated the analogy in his concurring opinion after 

the Supreme Court remanded the case to the Seventh Circuit.)209 The Quaker protests that this 

means his exemption triggers the drafting of another man and that is a substantial burden on his 

own religious exercise. Judge Posner writes, “Would this mean that by exempting him the 

government had forced him to ‘trigger’ the drafting of a replacement who was not a 

conscientious objector, and that the Religious Freedom Restoration Act would require a draft 

exemption for both the Quaker and his non-Quaker replacement? That seems a fantastic 

suggestion.”210

That would indeed be a fantastic suggestion if the analogy were correct. It is not, for two 

reasons. First, requiring a religious group to sign the form and send it to their insurer or TPA is 

not similar to the Quaker being excused from military duty knowing that some other person will 

be called up in his place. The religious group is sending it to a particular insurer or TPA, or 

identifying a particular TPA in its written notice to HHS. It is more akin to telling the Quaker, 

“You may be excused from military service, but only on condition that you identify a specific 

non-Quaker who must serve in your place.”211

 204 Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015). 

205 Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir. 2015). 

206 Priests for Life v. Burwell, 772 F.3d 229 (D.C. Cir. 2014). 

207 Sharpe Holdings, Inc., v. Burwell, 801 F.3d 927 (8th Cir. 2015). 

208 See, e.g., Geneva College v. Burwell, 778 F.3d at 435-444; Little Sisters of the Poor, 794 F.3d at 1173-74; Priests 

for Life, 772 F.3d at 246-46; E. Tex. Baptist Univ., 793 F.3d at 459-63; Mich. Cath. Conf., 775 F.3d at 387-90. 

209 University of Notre Dame v. Burwell, 786 F.3d 606, 623 (7th Cir. 2015) (Hamilton, J., concurring). 

210 University of Notre Dame v. Sebelius, 743 F.3d 547, 556 (7th Cir. 2014) (Posner, J.). 

211 Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1214 (10th Cir. 2015) (Baldock, J., 

dissenting in part). 
Commissioners’ Statements 85 

In the Tenth Circuit, Judge Baldock dissented in part, arguing that the accommodation 

substantially burdens self-insured organizations. The majority argued, “Plaintiffs and the dissent 

emphasize that the TPA may arrange or provide coverage only after a religious non-profit 

organization opts out. We consider this to be an uncontested and unremarkable feature of the 

accommodation scheme.”212 The majority did not consider this to be a substantial burden, 

reasoning that the ACA requires insurance plans to include contraception (this elides the law a 

bit, as it is only the regulations that mandate the provision of contraceptives) and that therefore 

the accommodation shifts the burden of compliance from the objecting organization to its 

TPA.213 The dissent objected that the mechanics of the relationship between self-insured 

organizations and their TPA make the objecting organization the but-for cause of the coverage of 

contraception and that this is the same situation in which the Hobby Lobby plaintiffs found 

themselves.214 Unlike organizations that use an insurance plan rather than self-insuring, selfinsured organizations can actually prevent their insurance from covering contraceptives at all. 

The self-insured organizations are in a position in which they follow the law and violate their 

consciences, or disobey the law and face crippling fines. The dissent writes: 

Put another way, if the self-insured plaintiffs do not opt out, who will provide the 

coverage for their plan participants and beneficiaries? The answer: no one. The 

self-insured plaintiffs cannot do so per their faith; the TPAs cannot do so per the 

law. Thus, the self-insured accommodation renders any duty to provide, and any 

entitlement to receive, contraceptive coverage wholly unenforceable and thus 

illusory - unless and until the self-insured plaintiffs opt out.215

 In Sheridan, the defendant registered for the draft but did not lawfully opt out. Instead, he refused to be inducted. But 

the result under conscription law was the same: “another person [was] called in his place. In other words, like the 

insured plaintiffs, no matter what conscientious objectors do or refuse to do, the government can and will achieve its 

military draft goals. 

The opposite result occurs under the self-insured accommodation scheme. If a self-insured plaintiff simply refuses to 

provide coverage and does not opt out, the government cannot call a third party in its place. The accommodation 

scheme thus places the self-insured plaintiffs in a very different position vis-à-vis helping the government achieve its 

religiously objectionable goals. Conscientious objectors cannot prevent the government from conscripting their 

replacements; but the self-insured plaintiffs can completely prevent the government from even authorizing their TPAs 

to provide objected-to coverage. Conscientious objectors also need not identify a related third party to serve in their 

stead; but the self-insured plaintiffs must identify a related third party through a form or letter. And this form or letter 

is the only means by which the government can authorize that third party to serve in their stead. . . . Such a 

conscientious objector scheme - where the government could draft a replacement soldier only if the initial 

conscientious objector opted out and identified a previously ineligible relative to serve in his stead - would be 

immensely problematic, to say the least. [citations omitted] 

212 Little Sisters of the Poor, 794 F.3d at 1182. 

213 Id. at 1182-83. 

214 Id. at 1211. 

215 Id. at 1211. 
86 Peaceful Coexistence Report 

This argument has been ignored or dismissed by other circuits.216 However, the ultimate fate of 

these claims remains unclear. The Seventh Circuit initially ruled against Notre Dame, and then 

the Supreme Court vacated and remanded the case for reconsideration in light of Hobby Lobby. 

The Seventh Circuit’s second opinion was virtually indistinguishable from its first, which makes 

one wonder if the court seriously applied Hobby Lobby. The Supreme Court vacated and 

remanded the Michigan Catholic Conference case to the Sixth Circuit, which resulted in the 

Sixth Circuit issuing an opinion very similar to that of the Seventh and Tenth Circuits.217 Since 

the Supreme Court remanded multiple cases for reconsideration in light of Hobby Lobby it 

seems as though the Court is serious about applying Hobby Lobby to the claims made by 

religious organizations. Opinions that mirror the vacated and remanded Sixth and Seventh 

Circuit opinions may not be long-lived. 

In the Tenth Circuit, the Little Sisters of the Poor did not petition for rehearing en banc. 

However, some judge[s] on the Tenth Circuit asked for a poll to be taken as to whether to grant 

en banc review sua sponte.

218 The Tenth Circuit denied rehearing, but Judges Hartz, Kelly, 

Tymkovich, and Holmes dissented from the denial of rehearing. In his dissent, which the other 

dissenting judges joined, Judge Hartz argued that the panel majority’s determination that there 

was no substantial burden on religious liberty was contrary to prior precedent. The panel 

majority’s opinion either relied on reframing the parties’ religious beliefs219 or on determining 

that the parties’ religious beliefs are unreasonable.220 Neither is appropriate for the judiciary. 

 

216 Priests for Life v. Burwell, 772 F.3d 229,254-56 (D.C.Cir.2014). 

217 Michigan Catholic Conference v. Burwell, 2015 WL 4979692 (6th Cir. 2015). 

218 Little Sisters of the Poor Home for the Aged v. Burwell, Order Denying Hearing En Banc, 799 F.3d 1315, 1316-18 

(10th Cir. 2015) (Hartz, J., dissenting). 

219 Id. at 1317. 

Where did [the panel majority] go wrong? It does not doubt the sincerity of the plaintiffs’ religious belief. But it does 

not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution 

of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as being only opposition to 

facilitating the use and delivery of certain contraceptives to which they object. Under this reframing, the plaintiffs 

have no religious objection to executing the forms; it is just that executing the forms burdens their religious 

opposition to certain contraceptives. The burden would be akin to that caused by a tax on sales of religious tracts at 

the church bookstore, where the church has no religious objection to paying a tax but complains that the tax will make 

it harder to spread the Gospel. After so framing the plaintiffs’ belief, the panel majority then examines the particulars 

of the governing law and decides that executing the documents does not really implicate the plaintiffs in the use of 

delivery of contraceptives. If one accepts this reframing of plaintiffs’ belief, the analysis of the panel majority may be 

correct; perhaps one could say that the exercise of this reframed belief was substantially burdened. But it is not the job 

of the judiciary to tell people what their religious beliefs are. 

220 Id. at 1317-18. 
Commissioners’ Statements 87 

The analysis of whether the government interest in providing cost-free contraceptives is 

compelling is the same as the analysis for for-profit institutions. There is one additional wrinkle 

in the case of religious organizations. The government’s interest in regard to forcing the Little 

Sisters of the Poor, Catholic Charities, and similar religious organizations is particularly 

undermined by the exemption granted to houses of worship. The District Court noted in Zubik: 

[T]he Court first notes that the existence of a religious employer “exemption” is 

an acknowledgment of the lack of a compelling governmental interest as to 

religious employers who hire employees for their “houses of worship.” . . . Thus, 

the Government’s argument that its two stated compelling interests will not 

overbalance the exact same legitimate claims to the free exercise of religion (at 

times raised by the same individuals—i.e., Bishop Zubik in the Pittsburgh case) 

when asserted on behalf of a different religious affiliated/related employer falls. 

If the Court were to conclude that the Government’s stated interests were 

sufficiently “compelling” to outweigh the legitimate claims raised by the 

nonprofit, religious affiliated/related Plaintiffs, the net effect (as noted above) 

would be to allow the Government to cleave the Catholic Church into two parts: 

worship, and service and “good works,” thereby entangling the Government in 

what comprises “religion.”221

On appeal, the Third Circuit barely addressed the District Court’s argument that determining 

which portions of the Catholic Church are eligible for the exemption and which for the 

accommodation would “entangle[e] the Government in what comprises ‘religion.’” The Third 

Circuit simply noted that churches and associations of churches are exempted from filing annual 

returns with the IRS, whereas religious non-profits are not so exempted.222 It then followed the 

 Or perhaps the panel majority recognizes the plaintiffs’ belief but is simply refusing to recognize its importance 

because it is merely an “uninformed derivative” of its core belief. Some of the language could be read as saying the 

following: (1) Yes, the plaintiffs have a religious objection to executing the documents. (2) But the religious core of 

that objection is the plaintiffs’ opposition to certain types of contraception; their religious objection to executing the 

documents is merely the expression of the view that being required to perform that task substantially burdens their 

beliefs regarding contraception. (3) To let the plaintiffs decide whether executing the documents is independently 

sinful in itself would be contrary to the court’s duty to determine whether the document-execution requirement 

substantially burdens what the plaintiff’s religious concern is really all about - the provision and use of contraceptives. 

Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the 

plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the 

plaintiffs have a “derivative” religious belief that that executing the documents is sinful. This is a dangerous approach 

to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief 

and decide what is core and what is derivative? . . . The Supreme Court has refused to examine the reasonableness of 

a sincere religious belief - in particular, the reasonableness of where the believer draws the line between sinful and 

acceptable - at least since Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 

(1981), and it emphatically reaffirmed that position in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2778 

(2014). 

221 Zubik v. Burwell, 983 F.Supp.2d 576, 609-10 (W.D. Pa. 2013). 

222 Geneva College v. Burwell, 778 F.3d 422, 443 (3rd Cir. 2015), citing 26 U.S.C. § 6033(a)(3)(A)(i), (iii). 
88 Peaceful Coexistence Report 

Seventh Circuit and quoted Walz v. Tax Commission in support of the proposition that 

“‘[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages 

(notably tax advantages) over other entities, without these advantages being thought to violate 

the establishment clause.’”223 However, Walz was not, as are the religious non-profits 

challenging the accommodation, a religious organization claiming it had been unjustly excluded 

from the class of religious organizations that received a particular benefit. (It is worth noting that 

the Court in Walz declined to characterize the tax exemption as a benefit, but rather as a way of 

respecting the independence of both church and state.) Rather, Walz argued that including 

churches in a broad class of non-profit organizations that were eligible for a property tax 

exemption violated the Establishment Clause.224 Contra the Seventh and Third Circuits, the 

Court’s decision in Walz has nothing to say about whether it is constitutionally permissible for 

the government to provide an exemption to a Catholic diocese, but not to a Catholic high school 

within that diocese. Judge Posner’s comment that “The establishment clause does not require the 

burdens (or the benefits) that laws of general applicability impose on religious institutions”225

responds more to a worry expressed in Justice Douglas’s lone dissent than to anything expressed 

in the majority or concurring opinions.226

Incidentally, Justice Harlan wrote in concurrence: 

Preliminarily, I think it relevant to face up to the fact that it is far easier to agree 

on the purpose that underlies the First Amendment’s Establishment and Free 

Exercise Clauses than to obtain agreement on the standards that should govern 

their application. What is at stake as a matter of policy is preventing that kind and 

degree of government involvement in religious life that, as history teaches us, is 

apt to lead to strife and frequently strain a political system to the breaking 

point.227

Given that religious organizations have now been embroiled in litigation for years, Justice 

Harlan’s words about minimizing government involvement in religious life might profitably be 

embraced by HHS. 

Furthermore, e-mails exchanged between a White House policy official and an IRS official 

suggest that the White House deliberately used the IRS provision at issue, Section 6033, to 

 

223 Id. at 443, quoting Notre Dame v. Sebelius, 743 F.3d 547, 560 (7th Cir. 2014). 

224 Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 707 (1970)(Jackson, J., dissenting)(“To be sure, the 

New York statute does not single out the church for grant or favor. It includes churches in a long list of nonprofit 

organizations”). 

225 Notre Dame v. Sebelius, 743 F.3d 547, 560 (7th Cir. 2014). 

226 Walz, 397 U.S. 664, at 710-11. 

227 Id. at 694. 
Commissioners’ Statements 89 

minimize the number of religious organizations that would be exempted from the contraception 

mandate.228 It is clear that the Administration was primarily interested in maximizing the 

number of women entitled to contraception coverage and only secondarily concerned with the 

possible religious liberty ramifications.229 In discussing the various possible tests and how likely 

they would be to limit the number of religious organizations that qualified for an exemption, an 

IRS official wrote to a White House policy official: 

I have always seen prongs 1-3 as limiters on the broader pool [of religious 

institutions] that could meet prong 4 (26 USC sec. 6033(a)3)(A)(i) and (iii)). 

Especially prong 3 (primarily serves persons who shares its tenets). The soup 

kitchen that is in the tax-exemption group ruling, for example, that is most likely 

an integrated auxilliary of a church (tax-exempt; affiliated; funded by the church) 

for purposes of 6033, does not limit the persons it services. 

Not sure what you are looking for on your question since I don’t think it is possible to say that 

zero additional people would fall into the reg rule. If you are looking for a quantification of the 

delta between using prongs 1 -4 and using only prong 4, my sense anecdotally is that the delta is 

more than zero but I don’t think we would have any way of quantifying it for you.230

White House and IRS officials also engaged in detailed discussion regarding which Catholic 

institutions would be exempted from the contraception mandate. In the same e-mail quoted 

above, the IRS official noted, “Colleges would generally be required to file Forms 990. . . . (The 

large, well-known ‘Catholic’ universities - e.g., Georgetown, Notre Dame - do not appear to be 

part of the Catholic group ruling. They also file returns.”231 The officials are not even really 

discussing which institutions are more religious than others, but simply trying to determine how 

to write the rule to capture as many institutions as possible. The decision whether to use a third 

party to cover drugs and devices their faith teaches are morally objectionable should be left up to 

the churches and the religious institutions, not the government. 

 

228 Brief for Amici Curiae Dominican Sisters of Mary, Mother of the Eucharist; Sisters of Life; and the Judicial 

Education Project in Support of Petitioners, at 25-27, Zubik v. Burwell, Nos. 14-1418, -1453, -1505, -15-35, -105, -

119, & -191 (2015), available at http://www.scotusblog.com/wp-content/uploads/2016/01/Dominican-Sisters-ofMary-Mother-of-the-Eucharist.pdf. 

229 Id. at App. 15, e-mail from Jeanne Lambrew to Sarah Ingram and Ellen Montz, July 19, 2012. 

We found the following document and are still trying to figure out if an accountant or fund manager that gets more 

than half of its revenue from churches would be exempt under the fourth prong as a non-filer of a 990?available at 

http://www.unclefed.com/Tax-Bulls/1996/RP96-10.PDF. 

Second, assuming that the answer is no, do we feel at this point we can say that we believe that replacing the four -

prong test with the fourth prong will not expand the number of workers in health plans that are exempt from 

contraception coverage? What more needs to be done to make such a determination? 

230 Id. at App. 14-15, e-mail from Sarah Ingram to Jeanne Lambrew and Ellen Montz, July 19, 2012. 

231 Id. at App. 12, e-mail from Sarah Ingram to Jeanne Lambrew and Ellen Montz, July 19, 2012. 
90 Peaceful Coexistence Report 

The analysis of whether the government can show that the mandate is the “least restrictive 

means” of advancing the government’s interest is the same as for for-profit organizations. I 

therefore refer to Section IV (a). 

It is worth taking a moment to reflect on the oddity of this situation. Even if one is not religious, 

it is generally understood that religious people can very stubbornly refuse to engage in activities 

they believe violate the tenets of their religion. The more interesting question is: Why is the 

government so determined to force religious objectors to provide contraceptive coverage to their 

employees? Regardless of what sleights of hand are used that is what ultimately happens. HHS 

and DOL’s best estimate as of July 2015 is that there will be 87 eligible for-profit businesses that 

will utilize the accommodation, and 122 non-profit religious organizations that will do so.232 

Why is HHS so determined to force a mere 200 businesses and organizations to cover 

contraceptives for their employees? Why is it so important that employees of Hobby Lobby and 

the Little Sisters of the Poor have access to cost-free contraception? Why not just allow them an 

exemption? Is free provision of contraceptives a key tenet of the Administration’s faith?233

V. Christian Student Groups and Religious Liberty 

Christian student groups find it increasingly difficult to establish belief and behavioral 

requirements for would-be leaders without suffering reprisals from university administrators or 

student council organizations.234 The Commission majority applauds this state of affairs in the 

findings and recommendations that accompany this report. CLS v. Martinez is the best-known 

example of these cases. Generally, these Christian student groups require full members and 

officers to sign a statement of Christian faith.235 This statement may also include a pledge to 

 

232 Department of the Treasury, Department of Labor, Department of Health and Human Services, “Coverage of 

Certain Preventive Services Under the Affordable Care Act,” 80 Federal Register 41332 (July 14, 2015), available at

http://www.gpo.gov/fdsys/pkg/FR-2015-07-14/pdf/2015-17076.pdf. 

233 T.S. Eliot, Notes toward the Definition of Culture, in CHRISTIANITY AND CULTURE 104 (1967). 

The reflection that what we believe is not merely what we formulate and subscribe to, but that behaviour is also 

belief, and that even the most conscious and developed of us live also at the level on which belief and behaviour 

cannot be distinguished, is one that may, once we allow our imagination to play upon it, be very disconcerting. 

234 For simplicity, “university administrators” or “universities” shall apply throughout to any university body that has 

the ability to bestow or deny registered student organization status. 

235 InterVarsity Asian-American Christian Fellowship (IV-AACF) at Vanderbilt University, Comment to U.S. 

Commission on Civil Rights (March 18, 2013) (on file with the Commission). 

IV-AACF eagerly welcomes students and faculty from all faith backgrounds to participate as members, but we 

require each student member to affirm a statement of faith that outlines the basic tenets of Christianity. This 

requirement acts as a safeguard to ensure that student leaders of AACF will maintain the group’s vision and integrity. 

See also Fr. John Sims Baker, Chaplain, Comment to U.S. Commission on Civil Rights (March 6, 2013) (on file with 

the Commission). 

Vanderbilt’s administration changed its non-discrimination policy to forbid student organizations from taking 

religious criteria into consideration when determining leadership positions. 
Commissioners’ Statements 91 

abstain from sex outside of heterosexual marriage.236 In some cases, university administrators 

have taken issue with the requirement that full members and officers abstain from sex outside of 

heterosexual marriage, arguing that it discriminates on the basis of sexual orientation and 

therefore violates the school’s nondiscrimination policy (which is sometimes presented as an 

“accept all comers” policy).237 Universities have taken this position even though the requirement 

to abstain from sex outside of heterosexual marriage is directed at conduct, not sexual orientation 

per se, and applies to people of all sexual orientations.238 Oddly, according to public comments, 

universities have often taken these adverse actions against Christian student groups even though 

there is no aggrieved student who has been denied a leadership role in the group based on these 

criteria.239

 The leaders of student organizations were required to sign an affirmation of the non-discrimination policy. The 

student leaders of Vanderbilt Catholic could not in conscience sign the affirmation since religious criteria are the most 

important ones for leadership in the organization. ... The result is there is no registered Catholic student organization 

at Vanderbilt. 

See, e.g., InterVarsity Christian Fellowship at Grinnell College, Comment to U.S. Commission on Civil Rights (2013) 

(on file with the Commission); InterVarsity Christian Fellowship, formerly at Rollins College, Comment to U.S. 

Commission on Civil Rights (2013) (on file with the Commission).. 

236 See CLS v. Martinez, 130 S.Ct. 2971, 2980-81 (2010). 

237 Id. at 2979-81; see also Vanderbilt University, Comment to the U.S. Commission on Civil Rights (2013) (on file 

with the Commission) (“Those [religious] groups have determined that they want to be able to discriminate against 

other students on the basis of students’ protected status by restricting students’ eligibility for membership and to run 

for leadership positions.”); Carol M. Swain, Comment to U.S. Commission on Civil Rights at 1 (Feb. 27, 2013) (on file 

with the Commission). (“After months of framing the issue around its “non-discrimination” policy, the university 

made a sudden switch and began referring to the new policy as an “all-comers.””). 

238 Jessica Laporte, Why I am a leader in TCF, TUFTS DAILY, Dec. 10, 2012 (submitted as part of InterVarsity at Tufts 

University Comment to the U.S. Commission on Civil Rights) (on file with the Commission). 

I am a woman who is attracted to both men and women, which is something I finally had the courage to accept and 

see in my life. Before understanding my unconditional acceptance by God, I was unwilling to admit that I was 

attracted to women because I was afraid of what that would mean for my life. 

I believe that God intended sex between one man and one woman in the context of marriage, and therefore, I will 

remain sexually chaste for the rest of my life or until I get married. This means that I will not date a woman.... 

Although my orientation is not strictly “heterosexual,” I am a leader in TCF because of my beliefs about what God 

intended for relationships. I am not a leader in TCF because I “chose to be straight” but because I have chosen to deny 

myself in all things and take up my cross daily in order to follow Christ. 

It is difficult to hear people speaking out against TCF as an unsafe space for LGBT students, because it’s actually one 

of the only places that I feel comfortable discussing my sexuality. 

239 American Center for Law and Justice and Alliance Defending Freedom, Comment to the U.S. Commission on Civil 

Rights, at 2 (2013) (on file with the Commission). 

The universities will typically claim that religious organizations are discriminating on the basis of religion—if the 

group requires its leaders to be Christians—and/or sexual orientation if the group requires that its leaders abide by a 

code of conduct that includes Biblical sexual ethics. Crucially, this claim will be made generally without any 

complaint of discrimination against the group. In other words, the group will be deemed “discriminatory” in the 

absence of a single identifiable victim of the group’s alleged discrimination. 
92 Peaceful Coexistence Report 

In other cases, the administrators are hostile even to a bare requirement that student leaders 

adhere to the group’s faith. Professor Carol Swain writes that Vanderbilt’s Christian Legal 

Society initially attempted to meet the university’s new requirements “by making appropriate 

changes to its constitution, such as the removal of verses of Scripture regarding Biblical 

lifestyles.”240 When these alterations were deemed insufficient, “CLS joined forces with other 

Christian ministries who sought to persuade the University to reinstate its longstanding policy of 

allowing religious groups to have religious leadership requirements.”241 Vanderbilt refused to do 

so. 

Universities have been unwilling to simply express their disapproval of the student groups’ 

religiously-based behavior requirements, as inappropriate as that would have been. They have 

decided that groups with theologically-based membership or leadership requirements cannot be 

officially recognized student groups. Withholding official recognition makes it much more 

difficult for these groups to exist as they are denied funding (which often exists because of 

mandatory student fees), the ability to meet on campus, the ability to use campus resources to 

advertise their events, the right to participate in official events and hold joint events with 

officially recognized student groups, and the use of the university name.242 These restrictions 

can destroy a small group—in fact, the Hastings CLS chapter no longer exists.243 In the most 

extreme instances this official expression of disapproval has contributed to a climate that 

encourages actions that would be considered harassment if directed toward a more fashionable 

minority.244

 After approximately 125 distinct controversies, a clear trend has emerged: On college campuses, nondiscrimination 

regulations are not utilized to protect a coherent class of wronged students but instead as a pretext of viewpoint 

discrimination against orthodox Christianity. 

240 Carol M. Swain, Comment to U.S. Commission on Civil Rights at 1 (Feb. 27, 2013) (on file with the Commission). 

241 Id. 

242 Id at 1-2 (“These now unregistered groups can no longer use the University’s mail server to announce their 

meetings. They cannot post notices on bulletin boards, co-sponsor events with other student organizations, or 

participate in interfaith activities and student fairs.”); Fr. John Sims Baker, Chaplain, Comment to U.S. Commission 

on Civil Rights (March 6, 2013) (on file with the Commission) (“The university administration has furthermore 

demanded that the unregistered organization cease using the word “Vanderbilt” in its name.”). 

See, e.g., Intervarsity Christian Fellowship at Tufts University, Comment to the U.S. Commission on Civil Rights, at 1 

(March 18, 2013) (on file with the Commission); InterVarsity Christian Fellowship at Grinnell College, Comment to 

U.S. Commission on Civil Rights (2013) (on file with the Commission); InterVarsity Christian Fellowship, formerly at 

Rollins College, Comment to U.S. Commission on Civil Rights (2013) (on file with the Commission); InterVarsity 

Asian-American Christian Fellowship (IV-AACF) at Vanderbilt University, Comment to U.S. Commission on Civil 

Rights (March 18, 2013) (on file with the Commission). 

243 Transcript at 65-66 (“at Hastings there is no CLS chapter because of this. Other organizations have also suffered 

the end of an organization on a particular campus whenever that group has been derecognized”). 

244 InterVarsity Christian Fellowship, formerly at Rollins College, Comment to U.S. Commission on Civil Rights, at 1 

(2013) (on file with the Commission). 
Commissioners’ Statements 93 

As I have expressed in the past, I support a robust interpretation of the First Amendment. My 

description of the harassment suffered by Christian students is not intended to suggest that other 

students’ speech should be squelched. 

In regard to state universities, administrators should consider the possibility that their refusal to 

allow religious student groups to set criteria for leaders may constitute an Establishment Clause 

violation. When a university tells a religious student group what they may or may not require of 

a leader, they are telling the group how to choose their ministers. The university is also setting 

the parameters for acceptable religious beliefs. When a university says that a student religious 

organization cannot require its leaders to believe x, it is saying either that x is unimportant or that 

x is abhorrent. The university is saying, “You may have your little variation on the religion of 

secularism but your ultimate allegiance must be to secularism and therefore you may not believe 

x.”245

Public universities’ attempts to set membership and leadership criteria for student religious 

organizations are in tension with the spirit of Hosanna-Tabor v. EEOC. Although InterVarsity, 

CLS, and similar organizations are not churches in the traditional sense they are religious 

organizations that engage in many of the same activities as do traditional churches. They 

organize worship services, Bible studies, mentoring programs, religious retreats, and so on. 

Particularly in evangelical Christianity, which tends to have loose church structures, para-church 

organizations like InterVarsity are almost indistinguishable from churches. Student leaders of 

 The college’s decision to remove InterVarsity has had a major impact on religious, especially evangelical, students at 

Rollins. In late January of 2013, a month before the Board’s final decision was made, a group of students were 

reading the Bible together in the common area of a residential hall. This informal group included residents of the 

dorm, as well as a few other students who were present at the request of the residents. When an RA saw them 

gathered together, they were disbanded and the non-resident students were asked to leave the hall. The RA was acting 

on the behalf of the college’s overseeing office of Residential Life, citing that the group was acting “like” InterVarsity 

in that it was conducting a Bible study with individuals of the same beliefs. It should be noted that the students who 

were meeting did not share the same faith background, and that they were not meeting to promote the organization of 

InterVarsity. In a subsequent meeting with the office of Residential Life, a student was informed that the decision to 

disband the group was “in the spirit” of the decision made by the college concerning InterVarsity. When the decision 

was reviewed by upper level administration, the reasoning changed: students could not meet “regularly” in a dorm 

common space. However, there does not seem to have been any action taken against any informal groups of students 

who meet regularly to study course materials. In the meantime, students have honored both decisions and have not 

gathered in residential halls. 

See also InterVarsity Christian Fellowship at Tufts University, Comment to the U.S. Commission on Civil Rights, at 1 

(March 18, 2013) (on file with the Commission). 

The opposition to TCF was not limited to the student judiciary though. A group of students was formed with the 

express purpose of seeing the group removed, and they called themselves the Committee Against Religious Exclusion 

(CARE). Members of CARE came to TCF meetings to discourage freshmen from attending the group, chalked 

disparaging remarks about the TCF on campus walkways, and wrote vitriolic op-eds in the campus paper. Again it is 

important to note that TCF had not acted out in any way towards students at Tufts or denied an applicant a place in 

leadership. They simply existed as a group for evangelical Christians and those exploring the Christian faith. 

245 See Colby Statement, infra at 186-89. 
94 Peaceful Coexistence Report 

these groups, although not ministers in the way we typically think of them, fulfill many of the 

same functions.246 Therefore, by establishing what criteria student groups may and may not use 

in selecting their student leaders, universities are in a very real sense selecting ministers. This 

public universities may not do without violating both Religion Clauses.247 Given that 

employment discrimination laws are not even implicated in these situations, only a university 

nondiscrimination policy, it seems that Hosanna-Tabor would apply with extra force. And even 

though private universities are not under the same constraints it would be wise for them to 

respect their students’ religious beliefs. 

University officials will fall back on CLS v. Martinez. However, as Kim Colby wrote, there were 

very particular circumstances in CLS v. Martinez that will not exist in every case.248 

Furthermore, even on the limited grounds on which CLS v. Martinez was decided, the case was 

decided wrongly. That does not mean that administrators do not have the weight of the law in 

their favor—of course they do. They should not assume, though, that this will always be the 

case, or that a court cannot distinguish their own case from Martinez and rule against them. As 

Professor John Inazu notes, Martinez has minimal analysis.249 Strangely, even though it would 

seem obvious that rules governing group membership would implicate the right of expressive 

association, Justice Ginsburg collapses the right of free association into the right of free speech 

with little more analysis than a wave of the hand.250

 

246 Hosanna-Tabor v. EEOC, 132 S.Ct. 694, 710 (2012) (Thomas, J. concurring) (“in my view, the Religion Clauses 

require civil courts to apply the ministerial exception and to defer to a religious organization’s good-faith 

understanding of who qualifies as its minister. ... the Religion Clauses guarantee religious organizations autonomy in 

matters of internal governance, including the selection of those who will minister the faith.”); Id. at 712 (Alito, J. 

concurring) (“[The ministerial exception] should apply to any ‘employee’ who leads a religious organization, 

conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its 

faith.”). 

247 Id. at 704 (2012). 

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain 

an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment 

decision. Such action interferes with the internal governance of the church, depriving the church of control over the 

selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free 

Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. 

According the state the power to determine which individuals will minister to the faithful also violates the 

Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. 

248 See Colby Statement, infra at 194-205. 

249 See Inazu Statement, infra at 244-46. 

250 CLS v. Martinez, 130 S.Ct. 2971, 2985 (2010). 

CLS would have us engage each line of cases independently, but its expressive-association and free-speech arguments 

merge: Who speaks on its behalf, CLS reasons, colors what concept is conveyed. See Brief for Petitioner at 35 

(expressive association in this case is “the functional equivalent of speech itself.”) It therefore makes little sense to 

treat CLS’s speech and association claims as discrete. 
Commissioners’ Statements 95 

CLS v. Martinez reflects the bare minimum of protection universities must give to religious 

student groups. Simply because they may enforce nondiscrimination rules against religious 

groups does not mean that they should do so. It is possible to have a nondiscrimination policy 

that respects the religious freedom of student groups.251 Several constitutional rights are 

implicated in the decision to apply the full breadth of non-discrimination policies to religious 

groups - freedom of association, freedom of religion, and what Professor Inazu terms “the 

forgotten freedom of assembly.” These rights deserve more consideration and protection than 

universities are affording them. 

First, instead of thoughtlessly parroting “discrimination,” universities should consider what 

discrimination is. In a basic sense, any act of choosing is discrimination - that is why we say 

people have “discriminating tastes.” As Professor Richard Garnett writes: 

When we say that “discrimination” is wrong, what we actually mean is that 

wrongful discrimination is wrong, and when we affirm that governments should 

oppose it, we mean that governments should oppose it when it makes sense, all 

things considered, and when it is within their constitutionally and morally limited 

powers, to do so.252

The first question, then, is whether a religious student group’s requirement that its leaders assent 

to the group’s statement of faith (and the behavioral requirements that stem from it) constitutes 

wrongful discrimination. It does not, because assenting to a group’s beliefs is an integral part of 

leading a group. A belief-based group will no longer be a group if it is forced to admit leaders 

who disagree with its very reason for existence. The problem, as Judge Kenneth Ripple has 

written, is that religious student groups are forbidden from discriminating on the basis of 

religion, which is the entire purpose of their grouping.253 Is it truly wrongful discrimination for a 

Muslim group to say that its leaders must be practicing Muslims, or for a Catholic group to say 

that its leaders must be practicing Catholics? Would it be wrongful discrimination for the 

campus vegan society to refuse to allow a butcher to lead the group? As Lori Windham writes, 

the principle at work in Hosanna-Tabor applies here as well: “This idea [that religious groups 

should choose their own leaders] is at work in the Hosanna-Tabor decision, and it should also 

apply to less formal religious groups such as student groups organizing on college campuses. 

Without the right to govern their membership policies and select their own leaders, they cannot 

guarantee that their leaders will embody their message.”254

 

251 Colby Statement, infra at 186. 

252 Richard W. Garnett, Confusion About Discrimination, THE PUBLIC DISCOURSE, April 5, 2012, available at 

http://www.thepublicdiscourse.com/2012/04/5151/. 

253 Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 805-806 (9th Cir. 2011) (Ripple, J., concurring) 

(emphasis added), cert. denied, 132 S.Ct. 1743 (2012). 

254 Windham Statement, infra at 288. 
96 Peaceful Coexistence Report 

Religious student groups are not engaging in wrongful discrimination because they are 

discriminating on the basis of belief and conduct, not status. A requirement to abstain from 

sexual activity outside the bounds of heterosexual marriage applies to all group leaders, 

regardless of sexual orientation. A heterosexual person cohabitating with a romantic partner 

would run afoul of the provision just as surely as would a homosexual person cohabitating with a 

romantic partner. The point is not who you are attracted to, but how you act on that attraction. 

The universities should consider the constitutional values of freedom of religion, freedom of 

association, and freedom of assembly that are being sacrificed on the altar of non-discrimination. 

Religion is more than the bare ability to believe what you will, or to go to church on Sunday. 

Devout religious believers try to integrate their faith into every area of their lives. Very often, 

meeting with a dedicated group of fellow believers is one way they strive to accomplish this. It 

is very difficult to practice a religion alone, particularly when that religion is counter-cultural in 

one way or another. “[R]eligious freedom embodies ‘counter-assimilationist’ ideals that allow 

people ‘of different religious faiths to maintain their differences in the face of powerful pressures 

to conform.’”255 When universities make it difficult for student groups to reserve on-campus 

meeting space and for new students to become aware of the group’s existence through student 

activity fairs and the like, it becomes increasingly difficult for the group to meet and to continue 

to exist. Especially when students are at university and away from their family and hometown 

support network, this likely makes it more difficult for them to continue in their faith. The 

universities have no duty to try to fill the vacuum left by the absence of parents and hometown 

churches but by making it more difficult for traditional religious groups to exist they subtly 

undermine their students’ efforts to adhere to their minority faith. 

As Professor Inazu writes, eradicating belief-based membership requirements threatens the very 

existence of these groups. Belief-based membership requirements require line-drawing. 

“Professor McConnell has also observed that ‘genuine pluralism requires group difference, and 

maintenance of group difference requires that groups have the freedom to exclude, as well as the 

freedom to dissent.”256 At the very least, nondiscrimination policies drive them out of the public 

square. Other groups are not threatened by an all-comers policy because their membership 

largely self-selects.257 Groups organized around a belief system do not have this luxury. 

[G]roups that require a commitment to certain beliefs or practices for 

membership—groups like conservative religious organizations—will face 

significant consequences. Because these groups will be unwilling to alter their 

 

255 Inazu Statement, infra at 242, quoting Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 

57 U. CHI. L. REV. 1109, 1139 (1990). 

256 Inazu Statement, infra at 243, quoting Michael W. McConnell, The New Establishmentarianism, 75 CHI.-KENT L.

REV. 453, 466 (2000). 

257 Inazu Statement, infra at 246. 
Commissioners’ Statements 97 

commitments, the all-comers policy will operate against them like a classic prior 

restraint—ensuring that they are forced out of the forum before their ideas and 

values ever manifest.258

Professor Garnett also notes that when we refer to “wrongful discrimination” we mean that 

governments should oppose this discrimination “when it is within their constitutionally and 

morally limited powers”. Believing, as I do, that CLS v. Martinez was wrongly decided, I do not 

believe it is within the government’s power (when public or publicly-funded universities are 

involved) to tell religious groups what they may believe and who they may select as their leader. 

Aside from the constitutional issues universities certainly have no moral right to tell religious 

groups what they may believe and who they may select as their leaders. Perhaps, then, they 

should exercise modesty and allow religious student groups to organize themselves as they wish. 

VI. Sexual Orientation Discrimination and Racial Discrimination 

Most of the moral authority of the gay marriage movement comes from its superficial similarity 

to racial discrimination. This analogy is flawed. To say so is deeply unpopular but the 

difference lies in the fact that race is an immutable characteristic and sexual behavior (of any 

type) is a behavior. This is not to say that sexual orientation is a choice, only that the decision to 

act on that sexual orientation is a choice. My colleagues state in Finding 7.4: “a doctrine that 

distinguishes between beliefs (which should be protected) and conduct (which should conform to 

the law)”, and thus acknowledge a distinction between belief and conduct. The same distinction 

exists between sexual inclinations (of whatever stripe) and sexual behavior. Cohabiting 

heterosexual couples who go to court to force landlords to stifle their religious objections and 

rent to them are likewise forcing others to approve of their behavior.

259 A heterosexual couple’s 

decision to cohabit (and presumably engage in sexual intercourse) is a choice, just as a gay 

couple’s decision to engage in a sexual relationship is a choice. In contrast, no one has the ability 

to choose to stop being black or white. It is an immutable characteristic. 

In many of the situations involving discrimination against same-sex couples the religious party 

has made it clear that they do not object to serving a gay or lesbian person, but rather object to 

being forced to condone the person’s sexual behavior. The religious party is happy to serve and 

associate with the gay or lesbian person in other contexts but believes it is sinful to assist in 

celebrating or condoning their sexual behavior.

260

 

258 Id. 

259 See Smith v. Fair Employment & Housing Com’n., 913 P.2d 909 (Cal. 1996); see also Donohue v. Fair 

Employment & Housing Com’n., 2 Cal. Rptr.2d. 32 (Cal. App. 2 Dist. 1991). 

260 Let Him Bake Cake in Freedom, NATIONAL REVIEW ONLINE (Jan. 29, 2014), available at

http://www.nationalreview.com/article/369694/let-him-bake-cake-freedom-interview; Defendants’ motion for partial 

summary judgment on claims against Barronelle Stutzman in her personal capacity, State of Washington v. Arlene’s 

Flowers and Ingersoll v. Arlene’s Flowers, No. 13-2-00871-5, 3-4 (Sup. Ct. of Washington, Benton County 2013). 
98 Peaceful Coexistence Report 

This is where Professor Alan Brownstein’s suggested framework for balancing the rights of gay 

and lesbian couples with the rights of religious believers is helpful. As he notes, in a pluralistic 

society we must respect the other’s “right to be wrong” and give them space to live their lives.261 

Professor Richard Epstein argues that a reinvigorated right of free association would solve most 

of these problems. Statutes or ordinances that add “sexual orientation” as a protected class 

would only further constrain a right already dying of suffocation. 

I do not support drawing a distinction between non-profit religious groups and for-profit 

businesses. As in the HHS mandate cases, such distinctions are artificial. However, I do think 

that Professor Brownstein’s suggestions give us a helpful starting point for thinking through 

these questions as a society. There are instances in which the state’s interest in preventing a 

serious harm would almost certainly outweigh a religious objection. The state certainly has an 

interest in ensuring that designated next-of-kin have the right to make decisions on behalf of 

hospitalized patients, whatever the patient’s sexual orientation.262 Likewise, the government has 

a serious interest in ensuring that gay couples are not stranded in the middle of New Mexico, 

unable to procure a hotel room. Does the government have a similar interest in ensuring that gay 

couples have their first choice of wedding cake baker or that Reverend and Mrs. Kettle’s bedand-breakfast accepts honeymooning gay couples? Probably not. And unlike the parade of 

horribles advanced by some commenters, most religious objections to participating in same-sex 

weddings have been quite narrowly drawn and involve only an objection to assisting with a 

wedding celebration or to engaging in activities that appear to condone same-sex sexual 

activity.263

 [W]hen Robert Ingersoll came into the store to ask Barronelle to design the floral arrangements for his wedding 

ceremony, she politely told him she could not do it “because of [her] relationship with Jesus Christ.” As she explains, 

Barronelle believes that “biblically marriage is between a man and a woman.” After prayer and thoughtful 

consideration, Barronelle concluded that her religious beliefs prohibit her from participating in a same-sex union by 

using her artistic talents to create floral arrangements for the ceremony. 

Stutzman politely and respectfully told Robert that she could not create the floral arrangements for his wedding 

because of her faith and then the two chitchatted for a while. She gave Robert recommendations for other florists, 

they hugged, and Mr. Ingersoll left the store. ... 

It never occurred to Barronelle that someone might consider her decision not to create floral arrangements for Robert 

Ingersoll’s wedding as illegal. Barronelle has gladly served gay and lesbian clients for many years, expressing the 

same warm demeanor and artistic passion to them as she did all other clients. Mr. Ingersoll and Mr. Freed were no 

exception. Indeed, they were longstanding clients of Arlene’s Flowers and Barronelle had served them for nearly nine 

years, knowing full well they were gay. But she could not participate in a same-sex marriage ceremony as a matter of 

conscience because of her deeply held, biblical belief that marriage is a union between one man and one woman. 

(citations omitted) 

261 Brownstein Statement, infra at 178. 

262 Id. at 178-179; see also Lambda Legal, Peaceful coexistence—Freedom of Worship is not a License to 

Discriminate, at 12 (April 21, 2013) (on file with the Commission). 

263 Lambda Legal, Peaceful coexistence—Freedom of Worship is not a License to Discriminate, Comment to U.S. 

Commission on Civil Rights, at 12 (April 21, 2013) (on file with the Commission). 
Commissioners’ Statements 99 

It is in this respect—the seriousness of the harm and the resulting weight of the government’s 

interest— that these situations involving gay and lesbian couples are unlike that in Heart of 

Atlanta Motel.

264 Unlike African-Americans in the 1960s, there is probably no part of the 

country in which gays and lesbians are unable to find lodging for hundreds of miles. This is 

despite the fact that sexual orientation is not protected under Title VII. The harm they suffer is 

dignitary harm because a certain baker or photographer or wedding venue will not, as a matter of 

conscience, assist them in celebrating their wedding. This is not a matter of driving through the 

night because there are no hotel rooms that will accommodate you. It is easy to go down the 

street or to the next county to a different baker or photographer. There is not a constitutional 

right to have your first-choice wedding cake. This is not to say that being denied a service 

because someone believes your behavior is morally problematic is inconsequential. But that 

dignitary harm will become increasingly inescapable for all of us given our increasingly 

pluralistic society. 

Chai Feldblum addresses the dignitary harm inflicted: 

If I am denied a job, an apartment, a room at a hotel, a table at a restaurant, or a 

procedure by a doctor because I am a lesbian, that is a deep, intense, and tangible 

hurt. That hurt is not alleviated because I might be able to go down the street and 

get a job, an apartment, a hotel room, a restaurant table, or a medical procedure 

from someone else. The assault to my dignity and my sense of safety in the world 

occurs when the initial denial happens. That assault is not mitigated by the fact 

that others might not treat me in the same way.265

As mentioned above, this dignitary harm is unlike the discrimination suffered by AfricanAmericans in the South, who might have been unable to find a hotel room for hundreds of miles. 

It is more akin to Rawls’s contention that a sense of self-respect is necessary to pursue one’s lifeplan, and that “self-respect normally depends upon the respect of others.”266 Statements such as 

Feldblum’s reflect a sense that someone’s refusal to serve a customer because of religious 

objections to the person’s sexual behavior reflects a lack of respect for a gay or lesbian person’s 

choices and life-plan. Demands by same-sex couples that objecting vendors serve them 

apparently reflect a need for public validation of lifestyle choices. Tolerance, or even a 

willingness to serve them in some contexts but not others, is apparently insufficient. 

Feldblum’s admission that she can go down the street to another vendor illustrates that pure 

homophobia, as opposed to a religiously-based refusal to assist with certain aspects of 

homosexual relationships, is not remotely as pervasive or intense as was racial discrimination. 

 

264 Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964). 

265 Feldblum, supra note 2 at 42. 

266 John Rawls, A THEORY OF JUSTICE 155 (1999). 
100 Peaceful Coexistence Report 

As Professor Brownstein wrote in his statement he does not support analogizing discrimination 

against same-sex couples to racial discrimination because “racism has played such a uniquely 

invidious role in American history. The goal of purging racial discrimination has no equal and 

no counterpart.”267

The disparity between the harms suffered by the two groups is perhaps why arguments that 

robust religious freedom protections will lead to a harmfully “segregated and contentious” 

society are unconvincing.268 Racial segregation was mandated by law and enforced by violence. 

It was sometimes impossible for businesses to serve an integrated clientele even if they wanted 

to.269 No state in the union has a law that says, “You may not serve gay and lesbian customers.” 

Neither do angry mobs attack gay and lesbian couples who present themselves at wedding cake 

shops. (It is in fact more likely that angry mobs will attack the businesses of religious 

dissenters.)270

We will have a more contentious society if we force people to contribute their talents to events 

and to appear to condone behavior they believe is fundamentally immoral. In this instance, it is 

more conducive to civil harmony to allow people to freely exercise their religious convictions. 

This holds true whether the situation at issue is a baker who declines to bake a wedding cake for 

a same-sex couple or a landlady who declines to rent an apartment to an unmarried heterosexual 

couple. 

VII. Justice Scalia’s Prescience 

It was Justice Scalia’s melancholy fate to serve as our American Cassandra. This is no slur on 

the justice but an observation on our society.271 As long ago as 1996, he characterized the 

majority’s decision in Romer as “an act, not of judicial judgment, but of political will,”272 and 

questioned how state denial of preferential treatment for gays and lesbians differed from state 

 

267 Brownstein Statement, infra at 179. 

268 Lambda Legal, Peaceful coexistence—Freedom of Worship is not a License to Discriminate (April 21, 2013), 

Appendix A, at 12 (on file with the Commission). 

269 Bernstein, supra note 3 at 42 (2003). 

[I]n the South, [] state and local government remained firmly in the hands of segregationists who could pressure 

businesses to retain Jim Crow. Federal antidiscrimination law instead provided business owners - of whom many had 

found Jim Crow to be a costly nuisance - with the wherewithal to integrate, by freeing them from the threat of 

retaliation by local officials. 

270 Madeline Buckley, Threat tied to RFRA prompt Indiana pizzeria to close its doors, INDIANAPOLIS STAR, Apr. 3, 

2015, available at http://www.indystar.com/story/news/2015/04/02/threats-tied-rfra-prompt-indiana-pizzeria-closedoors/70847230/. 

271 Remember that Cassandra did indeed possess the gift of prophecy thanks to Apollo, but the god cursed her so she 

would never be believed. 

272 Romer v. Evans, 517 U.S. 620, 653 (1996). 
Commissioners’ Statements 101 

prohibition of polygamy.273 In Lawrence v. Texas, Justice Scalia wrote that the majority’s 

decision overruling Bowers called all morals legislation into question, including laws banning 

same-sex marriage,274 and that Justice O’Connor’s effort to salvage a basis for state preference 

for traditional opposite-sex marriages would likely be unavailing.275 And in United States v. 

Windsor, Justice Scalia wrote: 

The penultimate sentence of the majority’s opinion is a naked declaration that 

“[t]his opinion and its holding are confined” to those couples “joined in same-sex 

marriages by the State.” I have heard such “bald, unreasoned disclaimer[s]” 

before. When the Court declared a constitutional right to homosexual sodomy, 

we were assured that the case had nothing, nothing at all to do with “whether the 

government must give formal recognition to any relationship that homosexual 

persons seek to enter.” Now we are told that DOMA is invalid because it 

“demeans the couple, whose moral and sexual choices the Constitution protects,” 

- with an accompanying citation of Lawrence. It takes real cheek for today’s 

majority to assure us, as it is going out the door, that a constitutional requirement 

to give formal recognition to same-sex marriage is not at issue here - when what 

has preceded that assurance is a lecture on how superior the majority’s moral 

judgment in favor of same-sex marriage is to the Congress’s hateful moral 

judgment against it. I promise you this: the only thing that will “confine” the 

Court’s holding is its sense of what it can get away with [citations omitted].276

Justice Scalia was right. With the benefit of hindsight, it is clear that the majorities in Romer, 

Lawrence, and Windsor believed same-sex marriage to be a moral imperative, although they 

were unable to root it in any firm constitutional footing. Perhaps fearing a Roe-like backlash that 

might have led to a successful constitutional amendment, however, they proceeded 

incrementally. The incremental approach has two benefits: one, it gradually accustomed the 

public to an ever-more radical conception of sexual liberty; two, it allowed a new generation to 

come of age (and the older, more conservative generation to die off) in a society that in law and 

popular culture treated discrimination on the basis of same-sex sexual conduct as the equivalent 

 

273 Id. at 648-51. 

274 Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting). 

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, 

bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. 

Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the 

scope of its decision to exclude them from its holding. . . . The impossibility of distinguishing homosexuality from 

other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, 

“is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated 

under the Due Process Clause, the courts will be very busy indeed [citations omitted].” 

275 Lawrence, 539 U.S. at 600-02. 

276 U.S. v. Windsor, 133 S.Ct. 2675, 2709 (2013) (Scalia, J., dissenting). 
102 Peaceful Coexistence Report 

of racial discrimination.277 Then in Obergefell v. Hodges the Court delivered the killing stroke to 

state support for traditional marriage, grandly declaring, “The Constitution promises liberty to all 

within its reach, a liberty that includes certain specific rights that allow persons, within a lawful 

realm, to define and express their identity.”278 I join Justice Scalia in declaring that if I were 

forced to sign onto an opinion that began with such meaningless twaddle, I would put a bag over 

my head.279 Whatever it might be, Constitutional law it is not. 

There is likewise little reason to doubt Justice Scalia’s prediction that the expanded right to 

sexual liberty will stop at same-sex marriage. Justice Roberts too has come to share Justice 

Scalia’s gloomy outlook on the prospective constitutionalization of a right to polygamy.280 

There is little reason not to share their pessimistic outlook. For example, in late 2013, a federal 

district court ruled that Utah’s prohibition of polygamy had no rational basis and was therefore 

unconstitutional.281 Almost simultaneously there has been a raft of articles in mainstream 

publications discussing the prevalence of polyamory and suggesting it is “the next sexual 

revolution.”282 As alternative lifestyles continue to gain public acceptance, they too will come 

under the aegis of antidiscrimination laws and create their own religious liberty conflicts. 

More pertinent to this statement is the threat Obergefell poses to religious liberty. There have 

already been many conflicts between same-sex marriages and religious liberty. Now that samesex marriage has been elevated to the status of a constitutional right these conflicts will become 

more common and more severe. In his dissenting opinion, Chief Justice Roberts objected that 

same-sex marriage was nowhere contemplated in the Constitution. Rather, the Court’s decision 

in Obergefell reflected the policy preferences of a majority of the Court, which through the 

exercise of raw judicial power they elevated to the status of a fundamental right.283 Justice 

Scalia echoed the Chief Justice’s concerns: 

 

277 Children born when Romer was decided in 1996 turned 18 in 2014. 

278 Obergefell v. Hodges, 135 S.Ct. 2584, 2593 (2015)(Kennedy, J.). 

279 Id. at 22 (Scalia, J., dissenting). 

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution 

promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful 

realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States 

has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of 

the fortune cookie. 

280Id. at 2621-22 (Roberts, C.J., dissenting). 

281 Brown v. Buhman, 947 F.Supp. 1170 (D.Utah 2013). 

282 See, e.g., Kristen V. Brown, Web of Love, S.F. CHRON., Mar. 2, 2014, available at

http://www.sfchronicle.com/business/item/web-of-love-27625.php; Emanuella Grinberg, Polyamory: When three 

isn’t a crowd, CNN, Oct. 26, 2013, available at http://www.cnn.com/2013/10/26/living/relationships-polyamory/. 

283 Obergefell, 135 S.Ct. at 2612 (Roberts, C.J., dissenting). 
Commissioners’ Statements 103 

[I]t is not of special importance to me what the law says about marriage. It is of 

overwhelming importance, however, who it is that rules me. Today’s decree says 

that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a 

majority of the nine lawyers on the Supreme Court. The opinion in these cases is 

the furthest extension in fact - and the furthest extension one can even imagine - 

of the Court’s claimed power to create “liberties” that the Constitution and its 

Amendments neglect to mention. This practice of constitutional revision by an 

unelected committee of nine, always accompanied (as it is today) by extravagant 

praise of liberty, robs the People of the most important liberty they asserted in the 

Declaration of Independence and won in the Revolution of 1776: the freedom to 

govern themselves.284

This is dangerous. If the Supreme Court can create fundamental rights it can also destroy 

them.285 If “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth 

Amendment did not presume to know the extent of freedom in all its dimensions,”286 and 

therefore we must defer to our somberly-garbed philosopher-kings’ judgment as to the 

boundaries of liberty, what is to prevent five members of the Supreme Court from determining 

that the founding generation simply did not understand how oppressive religion could be? That 

is, in fact, what my colleagues suggest in the findings and recommendations included in this 

report. My colleagues state in Finding 7, “2) throughout history, religious doctrines accepted at 

one time later become viewed as discriminatory, with religions changing accordingly; 3) without 

exemptions, groups would not use the pretext of religious doctrines to discriminate; . . . 6) a 

basic [civil] right as important as the freedom to marry should not be subject to religious 

beliefs”. My colleagues do not even pretend to neutrality and instead simply declare that they 

are wiser than the accumulated wisdom of millennia of the world’s major faiths. It appears from 

the recommendations that they believe religious beliefs and practices that conflict with the sexual 

revolution should be cabined as much as possible. The entire point of having limited and 

enumerated constitutional powers and a Bill of Rights was to restrain the power of government 

and to protect inalienable rights regardless of changing fashions. In the wake of Obergefell, it is 

impossible to be confident that those limits and protections will last. Justice Alito has no such 

confidence, warning, “If a bare majority of Justices can invent a new right and impose that right 

 The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or 

this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, 

openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” 

284 Id. at 2627 (Scalia, J., dissenting). 

285 Id. at 2625-26 (Roberts, C.J., dissenting). 

286 Id. at 2598 (Kennedy, J.). 
104 Peaceful Coexistence Report 

on the rest of the country, the only real limit on what future majorities will be able to do is their 

own sense of what those with political power and cultural influence are willing to tolerate.”287

And the liberty that the Obergefell majority creates differs from the older and earlier liberties in 

that it is not the right not to be forced to do something, but the right to force others to do 

something for you. As the Chief Justice wrote, “Our cases have consistently refused to allow 

litigants to convert the shield provided by constitutional liberties into a sword to demand positive 

entitlements from the State.”288 Justice Thomas was even more explicit, stating, “Since well 

before 1787, liberty has been understood as freedom from government action, not entitlement to 

government benefits. . . . Yet the majority invokes our Constitution in the name of a ‘liberty’ that 

the Founders would not have recognized, to the detriment of the liberty they sought to 

protect.”289 Justice Thomas later discusses why Loving v. Virginia is inapposite - namely, 

because the Lovings were prosecuted for cohabiting together in Virginia after being married in 

another jurisdiction.290 No same-sex couples were being threatened with imprisonment for 

cohabiting together. 

In their dissenting opinions, which Justice Scalia joined, Justices Thomas and Alito both warned 

about the effect same-sex marriage will have on religious liberty. Justice Thomas warned: 

In our society, marriage is not simply a governmental institution; it is a religious 

institution as well. Today’s decision may change the former, but it cannot change 

the latter. It appears all but inevitable the two will come into conflict, particularly 

as individuals and churches are confronted with demands to participate in and 

endorse civil marriages between same-sex couples. 

The majority appears unmoved by that inevitability. It makes only a weak gesture 

toward religious liberty in a single paragraph. And even that gesture indicates a 

misunderstanding of religious liberty in our Nation’s tradition. Religious liberty 

is about more than just the protection for “religious organizations and persons . . . 

as they seek to teach the principles that are so fulfilling and so central to their 

lives and faiths.” Religious liberty is about freedom of action in matters of 

religion generally, and the scope of that liberty is directly correlated to the civil 

restraints placed upon religious practice. [citations omitted]291

Justice Alito echoed him, stating: 

 

287 Obergefell, 135 S.Ct. at 2643 (Alito, J., dissenting).

288 Id. at 2612 (Roberts, C.J., dissenting). 

289 Id. at 2631 (Thomas, J., dissenting). 

290 Id. at 2636-37 (Thomas, J., dissenting). 

291 Id. at 2638 (Thomas, J., dissenting). 
Commissioners’ Statements 105 

Perhaps recognizing how its reasoning may be used, the majority attempts, toward 

the end of its opinion, to reassure those who oppose same-sex marriage that their 

beliefs will be respected. We will soon discover whether this proves to be true. I 

assume that those who cling to old beliefs will be able to whisper their thoughts in 

the recesses of their homes, but if they repeat those views in public, they will risk 

being labeled as bigots and treated as such by governments, employers, and 

schools.292

There is no reason to doubt the Justices’ vision of the future. The majority’s findings and 

recommendations lend credence to the Justices’ warnings. 

VIII.Why Should Religious Liberty Take Precedence? 

The core of the dispute between partisans of sexual liberty and traditional religious believers is 

whether the two rights are of equal importance. In our constitutional order, the first reason that 

religious liberty takes precedence over sexual liberty is that this is enshrined in our Constitution. 

The First Amendment establishes the right to free exercise of religion, free speech, free 

association, and freedom of assembly. It does not establish the right to coerce other people into 

expressing approval of one’s self-expression. 

But why does the Constitution enshrine religious liberty as a “first freedom”? And why should 

we continue to treat it as a fundamental right that often trumps conflicting rights or government 

interests?293 After all, religious liberty sounds nice but nondiscrimination sounds nice too. The 

answer is that we accept that religious claims may actually be true, and if they are true, a 

person’s duty to God may be seen as weightier than his duty to the state.294 It is not 

unreasonable to believe in God, and it is impossible for the government or any person to remain 

truly undecided on the question. Either the government will act as though God may exist, or the 

government will act as though God does not exist. And for constitutional purposes it seems 

likely that the Framers assumed that God did exist though they differed mightily about specifics, 

and that is why they enshrined religious freedom in the First Amendment.295 If the Framers 

 

292 Obergefell, 135 S.Ct. at 2642-43 (Alito, J., dissenting). 

293 See Brian Leiter, WHY TOLERATE RELIGION 7 (2013). 

294 Michael Stokes Paulsen, Is Religious Freedom Irrational? Reviewing Why Tolerate Religion? By Brian Leiter, 

112 MICH. L. REV. 1043-44 ( 2014). 

295 Michael Stokes Paulsen, The Priority of God, 39 PEPP. L. REV. 1159, 1203-04 (2013). 

We protect religious liberty on the premise that God is real and that the true priorities of God trump the ordinary 

commands of man. . . . 
106 Peaceful Coexistence Report 

assumed that God exists, and if the Establishment Clause is predicated on that assumption, then 

there is no Establishment Clause violation if the present government also assumes the possibility 

of God’s existence and therefore avoids burdening religious practice and expression.296

As recently as twenty years ago there was a broad societal consensus in favor of giving 

heightened protection to religious liberty.297 That is why RFRA was enacted after the Smith

decision. Of course, a person cannot simply brandish, “I have a duty to God” and triumph every 

time his religious practices run afoul of state requirements. Nor is such an outcome 

contemplated under RFRA. RFRA’s compelling interest test is an attempt to balance the 

religious believer’s duty to God with society’s need for public order. RFRA simply places the 

burden on the government to prove that its interest is compelling and that infringing on the 

religious practice is the least restrictive means of achieving its goal. 

Religious belief and conscience take precedence over a person’s self-expression. Conscience is 

more than self-will. As the nineteenth-century intellectual John Henry Newman wrote: 

Conscience has rights because it has duties; but in this age, with a large portion of 

the public, it is the very right and freedom of conscience to dispense with 

conscience, to ignore a Lawgiver and Judge, to be independent of unseen 

obligations. . . . Conscience is a stern monitor, but in this century it has been 

superseded by a counterfeit, which the eighteen centuries prior to it had never 

heard of, and could not have mistaken for it if they had. It is the right of selfwill.298

 The word “religion,” in the original sense of the term employed by the Constitution (and still in common usage 

today), necessarily involves some sort of conception of God (or gods) and the obligations of man and restrictions on 

conduct thought to flow from rightful devotion to the prior and superior claims of God. It is, necessarily, “something 

more than just the projection of the individual’s inner sense of self, value, ethics, or morals, or of a social, moral, or 

political philosophy that involves no such transcendent reality or creative force.” 

As I have written elsewhere, there is probably no better operational definition of “religion” in this constitutional sense 

than the one supplied by the original Virginia Declaration of Rights and employed by James Madison in his Memorial 

and Remonstrance Against Religious Assessments: religion is “the duty which we owe to our Creator, and the manner 

of discharging it.” (This is not direct “legislative history” of the meaning of the First Amendment. But it is good 

contemporaneous evidence of common public usage of the term “religion” at or about the time the Constitution was 

adopted. 

296 Id. at 1217-19. 

297 Ramesh Ponnuru, Cross Purposes, NATIONAL REVIEW ONLINE, Mar. 10, 2014, available at

http://www.nationalreview.com/article/372984/cross-purposes-ramesh-ponnuru. 

The old, reactionary conception of liberty championed by Ted Kennedy really did regard religious liberty as a trump, 

in many instances, over laws that were enacted democratically to advance other values. The same is true of course of 

any other liberty: If it does not sometimes act as a trump, it does not exist; and if it does not often act as a trump, it 

hardly exists. 

298 John Henry Newman, Certain Difficulties Felt by Anglicans Considered ... A Letter Addressed to the Duke of 

Norfolk 156 (1897). 
Commissioners’ Statements 107 

Professor Robert George, a former member of this Commission, elaborates: “Conscience, as 

Newman understood it, is the very opposite of ‘autonomy’ in the modern liberal sense. It is not a 

writer of permission slips. . . . conscience is one’s last best judgment specifying the bearing of 

moral principles one grasps, yet in no way makes up for oneself, on concrete proposals for 

action.”299 This conception of conscience stands in stark contrast to the lazy conception of 

conscience that is often tossed about, where “Conscience as self-will identifies permissions, not 

obligations. It licenses behavior by establishing that one doesn’t feel bad about doing it ....”300

A conscience that imposes duties and does not serve as a rationalization of one’s behavior is a 

stern taskmaster. Undoubtedly, even those who strive to conform their behavior to the dictates 

of conscience sometimes lapse into using conscience to justify their preferred behavior. But it is 

important to have a correct conception of what conscience is so that we can discuss why it 

deserves deference. It also helps us think about why some claims of conscience, such as 

pacifism, deserve deference, whereas others, such as polygamy, do not. 

IX. The Danger of Leviathan 

One reason clashes between religious liberty and nondiscrimination provisions have become 

commonplace is because of the growth of government. When government - both federal and 

state - confined itself to performing only a few functions, there was room for religious believers 

to organize their lives in accordance with their beliefs. When government expands into every 

aspect of life, conflicts between the dictates of God and the dictates of man increase. Ilya 

Shapiro writes: 

The cultural flashpoint surrounding wedding vendors’ pleas for toleration is 

evidence of a more insidious process whereby the government foments social 

conflict as it expands its control into areas of life that we used to consider public 

yet not governmental. . . . 

Indeed, it’s government’s relationship to public life that’s changing - in the places 

that are beyond the intimacies of the home but still far removed from the state, 

like churches, charities, social clubs, small businesses, and even “public” 

 

299 Robert P. George, CONSCIENCE AND ITS ENEMIES, 112-113 (2013). 

300 Id. at 113; see also Newman, supra note 298 at 154. 

This view of conscience, I know, is very different from that ordinarily taken of it, both by the science and literature, 

and by the public opinion, of this day. It is founded on the doctrine that conscience is the voice of God, whereas it is 

fashionable on all hands now to consider it in one way or another a creation of man. . . . 

Conscience is not a long sighted selfishness, nor a desire to be consistent with oneself; but it is a messenger from 

Him, who, both in nature and in grace, speaks to us behind a veil, and teaches and rules us by His representatives. 

Conscience is the aboriginal Vicar of Christ, a prophet in its informations, a monarch in its peremptoriness, a priest in 

its blessings and anathemas, and, even though the eternal priesthood throughout the Church could cease to be, in it the 

sacerdotal principle would remain and would have a sway. 
108 Peaceful Coexistence Report 

corporations that are nevertheless part of the private sector. Under the influence 

of the Obama administration, the Left is weaving government through these 

private institutions, using them to shape American life according to its vision.301

Therefore, one way of defusing the tension between religious liberty and nondiscrimination 

provisions is to reduce the size and scope of government. As Commissioner Heriot noted at the 

briefing, the problem with universities and colleges refusing to recognize religious organizations 

could be partly ameliorated if the schools stopped collecting mandatory student activity fees and 

doling them out to preferred organizations. Similarly, the Affordable Care Act created a 

previously unknown crisis of conscience. If the government had not mandated that all employers 

with a certain number of employees provide health insurance or pay heavy fines, the cases 

challenging the contraceptive mandate never would have materialized. 

X. The Findings and Recommendations 

The findings and recommendations in this report should serve as an alarm to liberty-loving 

Americans. I voted in favor of these findings and recommendations only because this report has 

already been delayed for over three years, and was concerned that a “no” vote from me would be 

used as an excuse to further delay the report. 

The findings and recommendations elevate the nondiscrimination laws, which with the exception 

of the Fourteenth Amendment are mere statutes, not constitutional provisions, over the 

provisions of the Constitution. The majority writes, “Civil rights protections ensuring 

nondiscrimination, as embodied in the Constitution, laws, and policies, are of preeminent 

importance in American jurisprudence.”302 Mere “policies” are now of “preeminent importance” 

- a distinction not shared, it appears, by the poor Free Exercise Clause. A bit later, the majority 

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.”303 “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.”304

 

301 Ilya Shapiro, Against Conscience Taxes, CATO INSTITUTE, Sept. 10, 2015, available at

http://www.cato.org/blog/against-conscience-taxes. 

302 USCCR Report, Finding #1, infra at. 25. 

303 USCCR Report, Finding #3, infra at 25. 

304 USCCR Report, Finding #4, infra at. 25. 
Commissioners’ Statements 109 

The fundamental problem with the approach embodied in the findings and recommendations is 

that it is in practice, if not intent, hostile to religion. It also elevates the right to sexual liberty 

over the right to religious liberty. This is the precise opposite of the choice enshrined in our 

Constitution. That decision cannot be truly undone by civil rights statutes or even the whims of 

the Supreme Court but only through the amendment process. However, statements such as the 

following make it clear that, in their view, religion is only acceptable if it conforms to the 

dictates of modern liberalism: 

The Commission endorses the briefing panelists’ statements as summarized at 

page 26 of the Report in support of these Findings: 

Further, specifically with regard to number (2) above, religious doctrines that 

were widely accepted at one time came to be deemed highly discriminatory, such 

as slavery, homosexuality bans, and unequal treatment of women, and that what 

is considered within the purview of religious autonomy at one time would likely 

change [emphasis added].

305

I will address each of the report’s Recommendations in turn. 

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.306

This recommendation is so muddled that it is almost impossible to make heads or tails of it. The 

underlying assumption is that there is some Platonic ideal of nondiscrimination laws that must 

not be marred by “overly-broad” religious exemptions. That simply is not the case. All 

nondiscrimination laws are the product of balancing competing interests and competing costs and 

benefits. And in this case, there are two competing nondiscrimination interests. When examined 

closely, this recommendation has no substance. However, the main problem with the 

recommendation is that it misunderstands the applicable law. It takes a few words and phrases 

from RFRA, mashes them together, and somehow thinks that these tests apply to religious 

exemptions from nondiscrimination laws. They do not. “Narrow tailoring,” “burden,” and so 

forth only apply when there is government action involved, not private action. And a wedding 

cake baker restricting his services to opposite-sex couples is private action, not state action. 

 

305 USCCR Report, Finding #7, infra at 26. 

306 USCCR Report, Recommendation #1, infra at 26. 
110 Peaceful Coexistence Report 

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.307

I am not sure what this recommendation means but if there is a powerful cabal plotting a Henry 

VII-style creation of an established church I am glad my colleagues are ready to oppose it. I 

hope that this recommendation means that my colleagues will defend the rights of churches and 

religious organizations such as Hosanna-Tabor and the Christian Legal Society to establish 

criteria for ministers and leaders without encountering government interference and retaliation. 

In the absence of controlling authority to the contrary such as a state-level, 

RFRA-type statute, the recognition of religious exemptions to nondiscrimination 

laws and policies should be made pursuant to the holdings of Employment 

Division v. Smith, which protect religious beliefs rather than conduct.308

Let us try a thought experiment. In the findings, my colleagues hail the Supreme Court’s 

decision in E.E.O.C. v. Abercrombie, which held that a clothing store violated Title VII when it 

refused to hire a young Muslim woman who wore a headscarf. Under my colleagues’ reasoning, 

should we consider Abercrombie to have actually been in the right? The store did not refuse to 

hire the applicant because she believed in the tenets of Islam but because she wore a headscarf 

and that conflicted with the store’s “Look Policy.”309 The applicant never mentioned her religion 

during her interview, so the employer did not even know for sure that she was Muslim. The 

“Look Policy” of a clothing store like Abercrombie is an important aspect of its business and 

marketing, and would doubtless be applied if, say, a nun wanted to get a second job and wanted 

to wear her habit at work. If the majority believes that we should protect belief but not conduct, 

should we amend Title VII to encompass only belief, and not conduct? And if not, why should 

Samantha Elauf be entitled to wear her headscarf at work despite it conflicting with her 

employers’ desired image, but a small bakery be fined hundreds of thousands of dollars and 

driven out of business for refusing to bake a wedding cake?310

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 

 

307 USCCR Report, Recommendation #2, infra at 26. 

308 USCCR Report, Recommendation #3, infra at 27. 

309 E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2031 (2015). 

310 George Rede, Sweet Cakes owners pay damages while continuing appeal of $135,000 bias case, THE OREGONIAN, 

Dec. 28, 2015, available at

http://www.oregonlive.com/business/index.ssf/2015/12/sweet_cakes_owners_pay_damages.html. 
Commissioners’ Statements 111 

and civil rights protections against status-based discrimination [emphasis 

added].311

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 statusbased discrimination.312

These parallel recommendations would be nonsensical if they were not so dangerous. RFRA 

cannot “create” First Amendment Free Exercise Clause rights. Those rights already exist by 

virtue of the fact that the First Amendment Free Exercise Clause exists, even if the interpretation 

is contested. This thus represents an attempt to limit both RFRA and the Free Exercise Clause. 

It is a radical proposal, in that it calls not just for stripping Free Exercise protection from the 

Hobby Lobbies of America, but for limiting the Free Exercise rights of individuals and religious 

institutions if they are considered to unduly burden favored classes in some way. 

XI. The Dangers of Secularist Intolerance 

We should exercise prudential judgment to protect religious believers’ First Amendment rights. 

Refusing to provide robust protection of First Amendment rights is a dangerous narrowing of our 

freedom. People who live in accordance with their unfashionable religious beliefs will be unable 

to work in many professions. When a baker or a photographer or a CEO is forced to participate 

in activities that offend their religious beliefs, what hope is there for a doctor, a counselor, a 

lawyer? Traditional believers will have very few careers where they can both make a living and 

live according to their faith. It is an unofficial form of the legal disabilities imposed on English 

Catholics following the Glorious Revolution. 

And although these cases are mostly directed toward traditional Christians whose beliefs about 

sexuality clash with prevailing secularism, there is no reason to think that it will stop there. 

Secularism is a jealous god, and it will brook no others.313 Nathan Diament of the Orthodox 

Union made this point when explaining why his organization filed a brief opposing the HHS 

 

311 USCCR Report, Recommendation #4, infra at 27. 

312 USCCR Report, Recommendation #5, infra at 27. 

313 Roger Trigg, Is Religious Freedom Special?, Comment to the U.S. Commission on Civil Rights at 9 (2013)(on file 

with the Commission). 

Religion in general, and Christianity in particular, is, it seems, not to be brought into public places either symbolically 

or as part of the democratic debate. Religion has always been vulnerable because it poses an authority different from, 

and sometimes at odds with, secular authority. Even if that authority is democratic, the ‘will of the people,’ it dislikes 

being judged by other standards. The vulnerability of religion both on an institutional and individual basis, is a good 

reason for giving a special emphasis to freedom of religion. Yet it is also clear that once freedom of contract, freedom 

of conscience or other freedoms are thought sufficient, religion itself becomes marginalised. 
112 Peaceful Coexistence Report 

mandate, although Orthodox Judaism does not prohibit contraception: “Today, in America, 

Catholic objections to women’s use of contraceptives may be broadly unpopular; tomorrow, it 

may be circumcision or kosher slaughter that are looked at askance in America, as they are today 

in Europe.”314

There is an additional danger of which those who would exalt individuals’ right not to be 

offended above religious liberty should be aware. As they destroy the moral and religious 

foundations of law, they also destroy the foundations of their own most cherished ideals.315 The 

entire basis for nondiscrimination laws rests on the belief that all people are equal in dignity. 

Whence comes that dignity? There are few things as obvious in life as that people are unequal - 

unequal in beauty, unequal in intellect, unequal in virtue. 

When the America was founded, the Founders located man’s freedom and dignity in God. But 

not just any god - not Baal, not Odin, not Zeus - the God of Christianity and Judaism.316 

Jefferson wrote, “all men are created equal, that they are endowed by their Creator with certain 

inalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness” and 

“Almighty God hath created the mind free, and manifested his supreme will that free it shall 

remain.” Even Jefferson, one of the least religiously orthodox of the Founders, ascribed to the 

Judeo-Christian belief that man is created in the image of God, and that is the source of our 

freedom and dignity. 

Why should this concern those who would elevate nondiscrimination principles over religious 

liberty? Because if they destroy the moral and religious assumptions underpinning the idea of 

 

314 Nathan J. Diament, Why the Orthodox Union Supports Religious Exemptions to the Contraceptive Mandate, THE 

TABLET, Jan. 28, 2014, available at http://www.tabletmag.com/scroll/160928/why-the-orthodox-union-opposes-thecontraception-mandate. 

315 Charles J. Chaput, O.F.M., Archbishop of Philadelphia, Comment to the U.S. Commission on Civil Rights, at 3 

(2013)(on file with the Commission). 

Catholic moral convictions about abortion, contraception, the purpose of sexuality and the nature of marriage are 

rooted not just in revelation, but also in reason and natural law. Human beings have a nature that’s not just the product 

of accident or culture, but inherent, universal and rooted in permanent truths knowable to reason. 

This understanding of the human person is the grounding of the entire American experiment. If human nature is not 

much more than modeling clay, and no permanent human nature exists by the hand of a Creator, then natural, 

unalienable rights obviously can’t exist. And no human “rights” can finally claim priority over the interests of the 

state. 

316 Thomas S. Kidd, GOD OF LIBERTY 253-254 (2010). 

Americans’ faith allowed them to articulate why oppression was wrong in the eyes of God, and it helped them 

envision a republic where individual freedom could be guided by ancient ideals of the Scriptures: charity, justice, and 

protection for the weak and poor. 

Does the national significance of these precepts mean that America was founded as a Christian nation? Yes, in the 

sense that believers - the majority of whom were Christians of some kind, with an important minority of Jews - played 

a formative role in the creation of the American Republic. ... The founders’ religious agreement was on public values, 

not private doctrines. 
Commissioners’ Statements 113 

human dignity, they may accidentally destroy the idea of human dignity itself. The late political 

scientist Samuel Huntington wrote, “Of all the objective elements which define civilizations, 

however, the most important usually is religion”.317 As discussed earlier in this statement, the 

effort to force traditional religious believers to bow to certain sexual mores is really an attempt to 

replace the old faith with the new. But if the old faith is destroyed, and with it the idea of human 

dignity, the adherents of the new faith may rue the day they did so. Secularists may believe that 

they are simply expanding the idea of human dignity to encompass various important facets of 

human behavior, but in so doing they are destroying the foundation of the idea and are unlikely 

to find a similarly compelling basis.318 Revolutions often turn on their instigators. The JudeoChristian belief that man is created in the image of God, the imago Dei, undergirds Jefferson’s 

proclamation that “all men are created equal”. Despite the failures of its adherents, as is the case 

with any set of principles, this concept is the root of the traditional Christian belief that people 

are ends, not means, and that therefore every person - male, female, black, white, disabled, gay, 

straight - is inherently dignified, despite his undoubted sins and perhaps seemingly dubious 

prospect of salvation.319 Without that foundation, the idea that everyone has equal dignity is 

little more than a polite fiction to be brushed aside for greater convenience. 

Do you think that the Faith has conquered the World? 

And that lions no longer need keepers? 

Do you need to be told that whatever has been, can still be? 

Do you need to be told that even such modest attainments 

As you can boast in the way of polite society 

Will hardly survive the Faith to which they owe their significance?320

 

317 Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order 42 (1996). 

318 Roger Scruton, “The Future of European Civilization: Lessons for America,” THE HERITAGE FOUNDATION, Dec. 8, 

2015, available at http://www.heritage.org/research/reports/2015/12/the-future-of-european-civilization-lessons-foramerica. 

Europe is rapidly jettisoning its Christian heritage and has found nothing to put in the place of it save the religion of 

“human rights.” 

I call this a religion because it is designed expressly to fill the hole in people’s worldview that is left when religion is 

taken away. The notion of a human right purports to offer the ground for moral opinions, for legal precepts, for 

policies designed to establish order in places where people are in competition and conflict. However, it is itself 

without foundations. If you ask what religion commands or forbids, you usually get a clear answer in terms of God’s 

revealed law or the Magisterium of the church. If you ask what rights are human or natural or fundamental, you get a 

different answer depending on whom you ask, and nobody seems to agree with anyone else regarding the procedure 

for resolving conflicts. 

Consider the dispute over marriage. Is it a right or not? If so, what does it permit? Does it grant a right to marry a 

partner of the same sex? And if yes, does it therefore permit incestuous marriage too? The arguments are endless, and 

nobody knows how to settle them. 

319 C.S. Lewis, The Weight of Glory, at 9, available at http://www.verber.com/mark/xian/weight-of-glory.pdf. 

320 T.S. Eliot, “Choruses from the Rock, VI”. 
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Commissioners’ Rebuttals 115 

Commissioner Gail Heriot Statement and Rebuttal 

“Magnanimity in politics is not seldom the truest wisdom, and a great empire and little minds 

go ill together.” -- Edmund Burke 

The conflicts that can arise between religious conscience and the secular law are many and 

varied. Some of the nation’s best legal minds have written on how the federal and state 

governments should resolve those conflicts. But no one has ever come up with a systematic 

framework for doing so—at least not one that all Americans can agree on. And perhaps no one 

ever will. Instead, we have been left to resolve the issues that arise on a more or less case-by-case 

basis. 

I am not going to try to create such a framework in this statement. I like to think I know 

my limitations. One bird’s eye comment I can offer is this: The bigger and more complex 

government becomes, the more conflicts between religious conscience and the duty to comply 

with the law we can expect.

Back when the federal government didn’t heavily subsidize both public and private higher 

education, when it didn’t heavily regulate employment relationships, when it didn’t have the 

leading role in financing and delivering healthcare, we didn’t need to worry nearly so much about 

the ways in which conflicts with religious conscience and the law arise. Nobody thought about 

whether the Sisters of Charity should be given a religious exemption from the Obamacare 

contraceptive mandate, because there was no Obamacare contraceptive mandate. The Roman 

Catholic Church didn’t need the so-called Ministerial Exception to Title VII in order to limit 

ordinations to men (and to Roman Catholics), because there was no Title VII. 

The second—again bird’s eye—comment I can make is this: While the targeted religious 

accommodations approach may sometimes be a good idea, it is not always the best strategy for 

people of faith. Targeted religious accommodations make it possible for ever-expanding 

government bureaucracies to divide and conquer. They remove the faith-based objections to 

their expansive ambitions, thus allowing them to ignore objections that are not based on faith. 

The bureaucratic juggernaut thus rolls on. People of faith should not allow themselves to 

become just another special interest that needs to be appeased before the next government 

expansion is allowed to proceed. They have an interest in ensuring the health of the many 

institutions of civil society that act as counterweights to the state—including not just the Church 

itself, but also the family, the press, small business and others. They also have an interest in 

ordered liberty in all its manifestations. A nation in which religious liberty is the only protected 

freedom is a nation that soon will be without religious liberty too. 

* * * * * 
116 Peaceful Coexistence Report 

From a bird’s eye view, let me move to the worm’s eye view by sharing my thoughts on 

the official Findings and Recommendations appended to this report. I believe they do little to 

illuminate the issues. 

Sometimes this is because they just don’t say much. Consider for example, 

Recommendation #1, which begins: 

“Overly-broad religious exemptions unduly burden nondiscrimination laws and 

policies.” 

Yes, of course. But the first trick is figuring out what is “overly-broad” and what isn’t. 

Only then do we know whether a burden is undue. Note also that the Commission could just as 

easily have concluded the reverse, “Overly-broad nondiscrimination laws and policies unduly 

burden religious liberty.” Or more broadly, “Overly broad exceptions to rules unduly burden 

rules.” But what’s the rule and what’s the exception? Do we live in a nation where the rule is 

everyone has the right to the free exercise of his or her religion, subject to certain possible 

exceptions? Or do we live in a nation where everyone has a right not to be discriminated against 

on the basis of race, sex, religion, national origin, age, disability or sexual orientation subject to 

certain possible exceptions? Suddenly, it’s not so easy. 

Recommendation #1 continues: 

“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.” (Emphasis added.) 

Again, yes, of course. Insofar as “applicable law requires” them to tailor religious 

exceptions narrowly, they must do so. But that’s the issue, isn’t it? When, if ever, does 

applicable law require that religious exceptions be narrowly tailored? And when should it? 

The recommendation gives no clue on those questions. It makes no claim that any particular 

statute or Constitutional provision contains such a requirement. The recommendation indicates 

only that if a statute does contain such a requirement (and it is consistent with the Constitution) or 

if the Constitution contains such a requirement, that requirement must be obeyed by courts and 

executive branch policymakers.1

Note that the Commission could just as easily have stated that courts, lawmakers and 

policy-makers “must tailor anti-discrimination exceptions to religious liberty protections as 

 

1

 The recommendation refers not just to courts and executive branch policymakers, but also to “lawmakers,” who are 

obviously not bound by statutory requirements of this type. They create statutes and can thus always repeal such 

requirements or promulgate new statutes that do not contain such requirements. While they “must” do what the 

Constitution requires, they are not otherwise bound. 
Commissioners’ Rebuttals 117 

narrowly as applicable law requires.” We’d still be in the position of having to figure out whether 

applicable law does indeed or should require any such thing. 

Recommendation #2 states: 

“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.” 

If you are having trouble figuring out what Recommendation #2 is trying to get at, you are 

not alone. Perhaps it is trying to say that Congress, in attempting to protect the religious liberty of 

some, must take care not to violate the Constitution’s Establishment Clause, which prohibits “any 

law respecting an establishment of religion.” If so, again, yes, of course. But, again, the difficulty 

is in the details. Everybody with even a passing understanding of the Constitution knows that 

Congress must steer a path between the Free Exercise Clause and the Establishment Clause.2

 

How to do that is not so easy; volumes have been written on it. Yet a simple, foolproof technique 

for doing so has never been discovered and perhaps never will be, since cases continue to reach 

the Supreme Court in need of resolution. This report does nothing to help resolve those issues. 

Recommendation #3 states: 

“In the absence of controlling authority to the contrary such as a state-level, 

RFRA-style statute, the recognition of religious exemptions to nondiscrimination 

laws and policies should be made pursuant to the holding of Employment Division 

v. Smith, which protects religious beliefs rather than conduct.” 

Two things: First, like some of the other recommendations, this one is worded in such a 

way as to sound significant, but in the end it doesn’t mean much. It states that in the absence of 

law pointing in the other direction one should apply Smith. But often there is authority pointing 

in the other direction (and when there isn’t, the legislature may create such a law). It can come 

not only from RFRA-style statutes, but also from state constitutions, whose religious liberty 

guarantees may be very different from the Free Exercise Clause of the U.S. Constitution as 

interpreted in Smith. It can also come from the nondiscrimination statutes themselves, in the form 

of an explicit or implicit requirement for religious accommodation (or in the form of broader 

exceptions into which religious accommodations may fit). For example, Title VII forbids sex 

discrimination in employment, but contains an exception for “bona fide occupational 

qualifications based on sex.” Might such a provision permit a specialty restaurateur whose 

religion forbids his co-religionists from eating food prepared by women to hire only men? The 

Commission’s recommendation surely provides us with no assistance in answering that question.

 

2

 For example, if the federal government funds religious schools, is it a violation of the Establishment Clause? Or is it 

a violation of the Free Exercise Clause to fund all schools, except religious schools? 
118 Peaceful Coexistence Report 

Second, the distinction in Smith is being misrepresented here. Rather than drawing a 

distinction, as my colleagues suggest, between “religious belief” and “conduct,” the Court 

specifically stated that some conduct is indeed covered by the Free Exercise Clause. "It would 

doubtless be unconstitutional, for example, to ban the casting of statues that are to be used for 

worship purposes or to prohibit bowing down before a golden calf," the Court wrote.3

 Instead, 

Smith held that the State of Oregon could refuse unemployment benefits to a person fired for using 

peyote in violation of state law, even though the peyote was being used in connection with a 

religious ritual. It did so on the ground that Oregon’s prohibition was a law of general 

applicability not passed for the purpose of curtailing the performance of that ritual, not on the 

ground that the use of peyote was “conduct” rather than “belief.”

In the Smith Court’s view, Oregon had the power to exempt persons engaged in religious 

ritual from otherwise valid prohibitions of general applicability, but it was not required to exempt 

them. That is where RFRA comes in. It was passed to overrule Smith by requiring legislators to 

accommodate religious conscience. 

Recommendation #4 states: 

“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.” (Emphasis added.) 

The use of the word “clarify” is odd here. What the Commission is actually proposing is 

that Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), which has already held that 

RFRA applies to closely held corporations, be overruled by Congress. Surely the Commission is 

within the scope of its authority to recommend that. But it is inexcusable for the Commission’s 

majority to fail to point out the fact that it is calling for Hobby Lobby to be overruled.

Of course, Congress can choose to amend RFRA in this manner. But why would it want 

to? It is surely not clear why an individual should be protected by RFRA when she chooses to 

operate her business as a sole proprietorship, but not when she chooses to operate it as a closelyheld corporation. The ability to incorporate one’s business is useful. It allows an entrepreneur 

to protect her personal assets in case the business fails. To create policy under which people of

faith cannot operate as a closely held corporation without losing their rights under RFRA seems 

pointless and arbitrary. 

The part of the recommendation that suggests that Congress “clarify” that RFRA creates 

the right to religious accommodation “only to the extent that they do not unduly burden civil 

liberties and civil rights protections against status-based discrimination” is also wrongheaded. 

 

3 Smith at 877-78. 
Commissioners’ Rebuttals 119 

Sure, it avoids the obvious questions: What constitutes an undue burden? What’s due? But 

more important, it ignores the fact that Congress has already laid out the standard by which 

conflicts between religious conscience and federal law are to be resolved. That standard cuts in 

the opposite direction from where my colleagues are attempting to lead. RFRA’s Section 3

demonstrates that rather than asking for a clarification, they are asking for a reversal of policy, 

which is something they should be willing to own up to. That section states: 

In general 

a) Government shall not substantially burden a person’s exercise of religion even 

if the burden results from a rule of general applicability, except as provided in 

subsection (b) of this section. 

b) Exception 

Government may substantially burden a person’s exercise of religion only if it 

demonstrates that application of the burden to the person— 

1) is in furtherance of a compelling governmental interest; and 

2) is the least restrictive means of furthering that compelling governmental 

interest 

.... 

42 U.S.C. sec. 2000bb-1.4

That is a very tough standard, tougher than many would have liked. But it is the course 

Congress has taken. Under it, Federal laws and other actions (including anti-discrimination laws) 

are to be interpreted to bend over backwards to protect religious liberty, not lean in the direction of 

minimizing the scope of religious liberty exemptions. Congress has taken the position that federal 

actions that substantially burden religious exercise are inappropriate unless the application of that 

burden is justified by a compelling government interest and (2) the least restrictive means of 

furthering that interest. When is a religious accommodation an undue burden on a law prohibiting 

status-based discrimination? Congress has created a standard under which the answer to that 

question will be hardly ever. Why doesn’t Recommendation #4 acknowledge this? 

 

4

 This section was originally intended to cover both federal and state law. In City of Boerne v. Flores, 521 U.S. 507 

(1997), the Court decided that Congress had overstepped its authority under Section 5 of the Fourteenth Amendment 

in subjecting state law to this standard. Only the courts have the authority to define what is or is not a violation of the 

Fourteenth Amendment. While Congress has a certain level of prophylactic power under Section 5, its response must 

be “congruent and proportional” to the problem. The upshot of this for the purposes of the report is that RFRA 

applies only to federal law and not to state law. On the other hand, the Religious Land Use and Institutionalized 

Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc, et seq., applies to state law, and some states have adopted 

RFRA-style laws. 
120 Peaceful Coexistence Report 

Recommendation #5 is essentially the same as Recommendation #4 except it applies to states and 

it inexplicably uses mandatory language: 

“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 those 

statutes do not unduly burden civil liberties and civil rights with status-based 

discrimination.” (Emphasis added.) 

First, I am again disturbed by the use of the word “clarify” here. Whether RFRA-style 

state laws were intended to apply beyond individuals and religious institutions is a matter of 

statutory interpretation. The Commission has made no effort to examine each of these state 

statutes and determine how it should be interpreted. What the Commission’s majority really 

means is not that a state legislature should “clarify” that its RFRA-style law was not intended to 

cover closely held corporations, but rather that it should amend its statute to exclude closely held 

corporations regardless of what was intended at the time of the statute’s passage and regardless of 

Hobby Lobby. If that is what the majority really means, it needs to give an argument as to why 

this would be a better policy. As I have suggested above, it seems pointless and arbitrary to me 

to deny people of faith the ability to configure their businesses as closely-held corporations 

without losing their rights under RFRA-style laws. 

Second, the notion that states with RFRA-style laws “must” guarantee those statutes do not 

unduly burden protections against status-based discrimination is noticeably without legal citation. 

(Contrast that with Recommendation #1 which at least makes mandatory only what “applicable 

law requires.”) 

What has caused the Commission’s recommendations to be so off-kilter? Sound 

conclusions can only be built on sound facts, whether those facts are explicit or implicit. 

Unfortunately the official findings appended to this report leave much to be desired. In Finding 

#1, the Commission declares that “[c]ivil rights protections ensuring nondiscrimination, as 

embodied in Constitution, laws, and policies” are “preeminent” in American jurisprudence. 

(Italics added). On the other hand, in Finding #3, the ‘protection of religious liberty” is referred 

to as a “longstanding and vital part of the American tradition,” but is apparently not preeminent. 

My colleagues declare in Finding #4 that religious exemptions to nondiscrimination laws “when 

they are permissible, significantly infringe upon ... civil rights.” From that they conclude in 

Finding #5 that such exemptions “must be weighed carefully and defined narrowly.” 

I can imagine an argument that eventually ends with that conclusion, but by starting with 

an assertion that antidiscrimination laws are “preeminent,” the Commission’s analysis essentially 

begins with its conclusion. Why should anyone accept it? The Commission said so. 

If anything, our Constitutional jurisprudence is grounded more in the opposite view. 

Religious liberty is sometimes referred to as our nation’s “First Freedom,” because of its 
Commissioners’ Rebuttals 121 

preeminent position in the text of the First Amendment and its importance in the founding of our 

nation.5 The Commission thus could just as easily—indeed more easily—have gone in the 

opposite direction of Finding #5: Because religious liberty is our First Freedom, it is preeminent, 

and laws, including non-discrimination laws, that purport to coerce individuals into acting or 

prohibiting them from acting in ways that would violate their conscience “must be weighed 

carefully and defined narrowly.” 

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. 

 

5

 By contrast, our anti-discrimination laws are of more recent vintage. Some are grounded in the Constitution and 

some are not. The Fourteenth Amendment’s requirement that states (not private individuals) accord individuals 

“equal protection under the laws” was made part of the Constitution in 1868. But the requirement is worded in a 

vague manner (alas, deliberately so), and it was not until the mid-twentieth century that the Supreme Court, in 

developing the doctrine of strict scrutiny, held that state laws discriminating on the basis of race would be subjected to 

a very exacting level of scrutiny while state laws discriminating on the basis of sex would only be subjected to an 

intermediate level of scrutiny. See, e.g., Craig v. Boren, 429 U.S. 190 (1976); Korematsu v. United States, 323 U.S. 

214 (1944). Laws that discriminate on most other bases are subjected to a lesser standard. Title VII of the Civil 

Rights Act of 1964, which prohibits race and sex discrimination (among other things) even in private employment, is 

more recent than the strict scrutiny doctrine. 

Age discrimination in employment was not outlawed until 1967, and the Americans with Disabilities Act was not 

passed till 1990. To this day, there are no federal statutes prohibiting private individuals from declining to do 

business with another (as opposed to employ) on account of his or her sex or religion. If an owner of an interior 

decorating business doesn’t want to design home interiors for women, because he feels they tend to interfere with his 

vision, federal law again does not interfere. If an individual arbitrarily decides that he doesn’t want to patronize a dry 

cleaner, because it is owned by Evangelical Christians, federal law has nothing to say about it. 

The exception for discrimination on the basis of race in private contracts arose in a very curious way. In Jones v. 

Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court misinterpreted the Civil Rights Act of 1866 (re-promulgated as 

the Civil Rights Act of 1870 and codified as 42 U.S.C. § 1982). See also Runyon v. McCrary, 427 U.S. 160 (1976) 

(sticking to this misinterpretation as applied to 42 U.S.C. § 1981). While the original statute was intended to confer 

upon African Americans and members of other minority races the same legal capacity to own and convey property, 

to contract and to devise and bequest property as whites have, it was erroneously interpreted to prohibit private 

individuals from engaging in race discrimination in those transactions. This is equivalent to construing the “right to 

marry” as a right that allows an individual to insist on marrying someone who doesn’t want to marry him. See Gail 

Heriot & Alison Somin, Sleeping Giant?: Section Two of the Thirteenth Amendment, Hate Crimes Legislation and 

Academia’s Favorite New Vehicle for the Expansion of Federal Power, 13 Engage 31 (October 2012); Gerhard 

Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. Rev. 89, 100 (1968)(“I am afraid the 

Court’s approach in Jones v. Mayer represents a combination of ... creation by authoritative revelation and ‘lawoffice’ history.”); Charles Fairman, 6 History of the Supreme Court of the United States: Reconstruction and 

Reunion, 1864-88, 1207, 1258 (MacMillan 1971)(“In Jones v. Mayer, the Court ... allowed itself to believe 

impossible things—as though the dawning of enlightenment of 1968 could be ascribed to the Congress of a century 

agone.”). Congress has since re-promulgated and modified 42 U.S.C. § 1981, thus acquiescing to Jones and 

Runyon. But there was never a time that Congress affirmatively decided to adopt a statute that would prohibit private 

individuals from discriminating on the basis of race in ordinary non-employment, non-public accommodation, nonhousing contexts. This was put in place by a judicial decision. Note that as a result of the Jones-Runyon pair of 

decisions, it is illegal for an individual, even in his capacity as a consumer, to decide to patronize (or not patronize) a 

business on account of the race of its owner. Thus, for example, an Asian American is violating § 1981 if she prefers 

an Asian-American physician. 
122 Peaceful Coexistence Report 

* * * * * 

Finally, allow me to share my thoughts about the Statements filed by my fellow 

Commissioners, which I had the opportunity to read only after I wrote the preceding. 

Unfortunately, as Commissioners, we are given only a 30-day period in which to file comments on 

our fellow Commissioners’ remarks—30 days during which many other major tasks also had to be 

accomplished.6

 For that reason, I am not able to cover everything I might like to cover. 

The Statement of Chairman Castro: Chairman Castro asserts: 

“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.”

In some ways, I envy anyone who can dismiss those who disagree with him as mere 

hypocrites. Those who do so envision a world that is peopled only by good guys and bad guys, 

and they are easy to tell apart. That is not the world with which I am familiar. 

Does Chairman Castro really believe that the Little Sisters of the Poor, whose case is 

currently before the Supreme Court, are just a bunch of hypocrites?7

 Does he believe that they are 

making up their concern over being compelled to finance their employees’ contraception? Does 

he think they really just want to save money? 

Chairman Castro inexplicably associates statutes like the RFRA with “Christian 

supremacy.” He seems to be unaware that Christians are a majority in this country. If they

wanted laws that made exceptions only as dictated by their own faith, they often would have the 

political clout to get just that—at least if they didn’t explicitly label it as such. Instead, RFRA 

protects people of all faiths. Indeed, it is the adherents to less common religions--Muslims, 

Buddhists, Sikhs, Hindus, and Bahá’ís--that usually derive the most protection from RFRA and 

RFRA-style laws. Their political clout may be otherwise too weak to influence legislation.8

In Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting 

Minority Religions from Majoritarian Rule, John Wybraiec and Roger Finke found that “religions 

 

6

 By contrast, the body of this report (less than 25 pages long) was approximately three years in the making and 

written by full-time staff members, while I am engaged only part-time. 

7 Little Sisters of the Poor Home for the Aged v. Burwell et al., 15-105. 

8 See, e.g., Caruso v. Zenon, 2005 U.S. Dist. LEXIS 45904 (D. Colo. 2005)(RLUIPA case ordering prison officials to 

provide halal meat diet to prisoner despite evidence that prisoner had ordered haram food from the prison canteen on 

numerous occasions and despite availability of vegetarian diet, which satisfied Muslim diet requirements); Toler v. 

Leopold, 2008 U.S. Dist. LEXIS 27121 (E.D. Mo. 2008)(RLUIPA case ordering prison officials to provide kosher 

diet to Jewish convert). 
Commissioners’ Rebuttals 123 

in tension with society are more likely to be involved with the judiciary.” For example, while 

Jewish, Muslim and Native American religions together made up less than 3 percent of church 

membership at the time of their study, those religions made up more than 18 percent of court cases 

concerning the free exercise of religion. Similarly, what Wybraniec and Finke called “new 

religions” or “cults” made up only 1 percent of church membership, but 16.5 percent of court 

cases concerning free exercise.9

The second (and final) paragraph in Chairman Castro’s short statement is as disturbing as 

his first. It accuses individuals who just want to be left alone of having exercised “dominion” and 

“veto power” over the rights of others: 

“Religious liberty was never intended to give one religion dominion over others, 

or a veto power over the civil rights and civil liberties of others. However, today, 

as in the past, religion is being used as both a weapon and a shield by those 

seeking to deny others equality. In our nation’s past religion has been used to 

justify slavery and later, Jim Crow laws. We now see “religious liberty” 

arguments sneaking their way back into our political and constitutional discourse 

(just like the concept of “states rights”) in an effort to undermine the rights of 

some Americans. This generation of Americans must stand up and speak out to 

ensure that religion never again be twisted to deny others the full promise of 

America.”

It is serious error to fail to make a distinction between the desire not to be coerced by the 

government and the desire to use governmental authority to coerce others.10 RFRA-style laws are 

about the former; anti-discrimination laws, especially when enforced with great zeal even against 

the most trivial of deviation, are about the latter. By declining to listen, a private citizen has not 

“vetoed” the right of another to speak. By declining to associate, a private citizen has not 

exercised “dominion” over another’s right of association.11

 

9

 John Wybraiec & Roger Finke, Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting 

Minority Religions from Majoritarian Rule, in Regulating Religion: Case Studies from Around the Globe 535, 542-

43 (James T. Richardson, ed. 2004). 

10 Commissioner Narasaki’s short Statement also fails to make this distinction, although, to her credit, her rhetoric is 

more measured than the Chairman’s. 

11 Often complexities come from cases in which the individuals who claim they just want to be left alone are in reality 

consuming or distributing finite public resources. If a Coast Guard captain refuses to rescue Roman Catholics that is 

clearly and unequivocally not simply a case of wishing to be left alone. He is endangering Roman Catholics, since 

the Coast Guard is unlikely to be able to deliver rescue services to them as readily. Speed is crucial in such cases. 

Other cases that in some sense involve public resources may cut in the other direction. Consider the example of a 

Christian evangelical society at a public university. Its members welcome all comers, but they wish to limit 

leadership roles in their society to Christians—in violation of university rules that prohibit discrimination on the 

ground of race, color, sex, religion, national origin or sexual orientation. Is the group simply asking to be left alone so 
124 Peaceful Coexistence Report 

As for the rest of Chairman Castro’s statement,12 I believe it basically speaks for itself. I 

considered asking him to withdraw it. But then I decided it might be better for Christians, people 

 as to preserve what is special about their group? Or are its members diverting precious school resources—like the 

right to meet on school property—to an exclusive group? 

Put differently, is its practice an effort to exert dominance over others? Or is it the school attempting to exert 

dominance over the Christian evangelical society (and indeed to drain it of its meaning)? I believe that on these 

assumed facts it likely is the latter—assuming the university has not had to turn away other groups who wish to use 

the facilities for lack of a meeting room. But I understand and appreciate those who might argue otherwise. Judging 

from his tone, I am less certain that the Chairman understands and appreciates other sides of the debate. 

12 Chairman Castro begins with a quotation that he attributes to John Adams: “The government of the United States 

is not, in any sense, founded on the Christian religion.” The words are not Adams’; they are taken from the Treaty of 

Tripoli of 1797, which was written and signed on behalf of the United States by American poet and diplomat Joel 

Barlow. (For D.C. history buffs, Barlow may be best known as the owner of the Kalorama Estate, which has since 

become the Kalorama neighborhood in the Northwest part of the city.) Adams, with the advice and consent of the 

Senate, later “accept[ed], ratif[ied] and confirm[ed]” the treaty. 

The full quote from that section of the treaty is: “As the Government of the United States of America is not, in any 

sense, founded on the Christian religion; as it has in itself no character or enmity against the laws, religion, or 

tranquility, of Musselmen; and as the said States never entered into any war or act of hostility against any Mahometan 

nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of 

the harmony existing between the two countries.” 

The back story is this: For centuries prior to the treaty, North African Barbary states had preyed upon commercial 

ships coming near their shores. See Robert C. Davis, Christian Slaves, Muslim Masters: White Slavery in the 

Mediterranean, the Barbary Coast and Italy 1500 - 1800 (2003). Cargo was stolen, and crew members and passengers 

were routinely ransomed or enslaved. In general, the Barbary States (consisting of the nominally Ottoman, but de fact 

independent, cities of Algiers, Tripoli and Tunis and the independent sultanate of Morocco) declared themselves to be 

at war with all Christian states that had not agreed by treaty to pay tribute. Prior to the Revolution, American ships 

had been protected by virtue their relationship to the British Empire. During the Revolution, French ships had given 

them protection. But after that, at least two American ships were captured and their crews enslaved. 

Treaties were hurriedly negotiated (and sometimes re-negotiated) with Morocco and Algiers during George 

Washington’s Presidency. Downplaying any connection with Christianity on the part of the government made sense. 

By 1797, when Adams became President, he was desperate to come to an arrangement with Tripoli and Tunis so as to 

ensure the safety of American commerce. 

In return for that safety (and well before the treaty was ratified), the Pasha of Tripoli received 40,000 Spanish dollars, 

13 watches of gold, silver and “pinsbach,” three diamond rings, one sapphire ring and one ring with a watch in it, 140 

“piques of cloth,” and 4 brocade caftans. In addition, the Pasha demanded the equivalent of an additional 12,000 

Spanish dollars and “naval stores” consisting of five 8-inch braided rope hawsers, three 10-inch braided rope cables, 

25 barrels of tar, 25 barrels of pitch, 10 barrels of rosin, 500 pine boards, 500 oak boards, 10 masts, 12 yard arms, 50 

bolts of canvas, and four anchors. He received all of it either in kind or cash equivalent. 

Nevertheless, the efforts to avoid war through tribute were unsuccessful—as such efforts often are. By 1801, the 

Pasha of Tripoli was demanding that the United States pay greater amounts as “voluntary presents.” He revoked the 

treaty. The result was the first of the conflicts known in American history as the Barbary Wars. 

It is unclear what the Chairman meant by quoting the Tripoli Treaty. (I note that he chose not to quote Adams’ more 

well-known statement: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to 

the government of any other.”) Why does the language in the Tripoli Treaty help him prove his point? He chafes at 

the notion that our government was founded upon the Christian religion. But where does that get him in his 

argument? Presumably if government had been specifically designed to promote Christianity, the conflicts between 

the law and the Christian faith would be far less numerous and RFRA and RFRA-style laws would have been less 

necessary. The point of the treaty language wasn’t that Christians should be forced to engage in conduct that betrays 

their faith. The point was that people of good will, no matter what their faith, can live in dignity as Americans or as 
Commissioners’ Rebuttals 125 

of faith generally and advocates of limited government to know and understand where they stand 

with him.13

The Statement of Commissioners Achtenberg, Kladney, Yaki and the Chairman: Since I 

understand Commissioner Achtenberg was the primary author of this Statement, for simplicity’s 

sake I will refer to it as hers. It is a more serious effort to discuss the issues presented in the report 

than the Chairman’s. But in the end it too is deeply flawed. 

Commissioner Achtenberg states that the fight for religious exemptions is often 

characterized as a battle waged by “Christians who purport to speak for all Christians.” “On the 

contrary,” she writes, “many Christian denominations and individuals” support stronger antidiscrimination laws instead. 

I should say that in my entire 58 years of life I have never run across a single Christian 

who purported to speak for all Christians. Not once. This is not to say that no such person exists; 

it is simply a statement that given my experience they must be the rare exception and not the rule. 

On the other hand, I frequently run across individuals who believe that those who disagree with 

them on religious grounds purport to speak for all Christians. These individuals are mistaken. 

It makes me wonder whether with all the talk of the power of diversity today we are the 

most cocooned people ever. We read the news as it is presented to us by our friends on Facebook. 

We may eat in a different ethnic restaurant every week, and our friends may be of different races 

and from different parts of the country or world, but the opinions they hold are anything but 

diverse. It is not easy to find an LGBT rights activist who routinely engages with an Evangelical 

Christian social conservative or vice versa. We have become ideologically isolated. 

In any event, I am not certain what point Commissioner Achtenberg is trying to make 

when she states that some Christians agree with her.14 Each individual must wrestle with his or 

her own conscience. The point is not whether most Americans or Christians agree. Each 

conscience is a dictatorship; it is not a democracy. 

 neighbors or allies of the United States. Making that possible—through RFRA, RFRA-style laws or other means—is 

what this report is supposed to be all about. 

13 The same should be said for the majority of the U.S. Commission on Civil Rights, which adopted a short statement 

on April 15, 2016, entitled The U.S. Commission on Civil Rights Condemns Recent State Laws Targeting the Civil 

Rights of the LGBT Community. That statement alleged—without evidence—that recent state laws that deal with 

religious liberty issues are merely using religion as a “guise” or an “excuse” to cover for more earthly motivations. 

Commissioner Kirsanow’s and my response to that Statement is entitled Statement of Commissioners Gail Heriot and 

Peter Kirsanow and can found at: http://www.newamericancivilrightsproject.org/wpcontent/uploads/2016/04/HeriotKirsanowFinalStatementwithAppendix.pdf 

14 Note that just as not all Christians agree on same-sex marriage issues, not all gays agree. Furthermore, some are 

Evangelical Christians themselves, some support RFRA-style laws despite not being religious themselves, and some 

wouldn’t dream of forcing Evangelical Christians who oppose same-sex marriage on religious grounds to cater their 

wedding. I wish there were more overlap between such groups. 
126 Peaceful Coexistence Report 

More broadly, I believe that Commissioner Achtenberg’s statement suffers from the same 

defects as the Findings and Recommendations. It simply assumes that anti-discrimination laws 

are “pre-eminent” over religious liberty. Moreover, it occasionally slips into rhetoric similar to 

that of Chairman Castro: It assumes a lack of good faith among those who disagree with 

Commissioner Achtenberg and her colleagues. In doing so, it seeks to make difficult issues seem 

easy. But they are not. 

As to the first point, I have already pointed out that one could just as easily, indeed more 

easily, make the converse argument from the one Commissioner Achtenberg makes—that 

religious liberty is preeminent over anti-discrimination laws. See supra at 7. Indeed, at least three 

arguments point in that direction. 

The first is historical. The right to the free exercise of religion was the reason many early 

settlers came to this county and was the First Freedom to be enshrined in the Bill of Rights. By 

contrast, most of the anti-discrimination laws referred to by my fellow Commissioners are 

comparatively recent. This is particularly so for bases for discrimination that Commissioner 

Achtenberg is concerned with in her Statement—sexual orientation and gender identity. These 

are so new that at the federal level they do not exist at all; there are no federal statutes forbidding 

discrimination on those bases. There is only a recent 5-4 decision of the Supreme Court holding 

that the right to marry cannot be denied to same-sex couples. Obergefell v. Hodges, 135 S.Ct. 

2584 (2015). That is an astonishingly slim reed upon which to balance a claim of preeminence 

over religious liberty. 

The second argument against any notion of the “pre-eminence” of anti-discrimination laws 

is based on democratic values. By passing RFRA (and also by passing the RLUIPA), Congress 

has decided that religious conscience must be accommodated except under the unusual 

circumstance of a compelling purpose on the part of the government. Our democratically elected 

representatives put religious liberty first, the opposite of what Commissioner Achtenberg is trying 

to assert in her Statement. In the case of sexual orientation and gender identity discrimination, 

Congress has not passed a statute at all. Whatever protections exist come from the other branches 

of government and sometimes involve rather strained interpretations of the term “sex 

discrimination.” 

The third argument proceeds from liberty—that this is a nation that seeks to constrain 

private conduct only when it is necessary.15 While laws that require non-discrimination are all 

about requiring certain conduct even when the individuals who are governed by the law might 

prefer to act otherwise, laws that protect free exercise are about leaving people to conduct their 

 

15 Patrick Henry famously said, “Give me liberty or give me death,” not “Prohibit others from discriminating against 

me or give me death.” 
Commissioners’ Rebuttals 127 

own lives as they see fit. The latter should be construed broadly, while the former, like all 

exercises of coercion, should be interpreted with appropriate restraint. 

Again, I am open to arguments that, as a matter of sound public policy, the standards set 

by RFRA, RLUIPA and other RFRA-style laws may be too high or should be more contextspecific. One context that I have given some thought to is prisons,16 where I believe special 

incentives are at work.17 These special incentives make it especially important to be mindful of 

 

16 I elaborated on my views in that area in the Commission’s 2008 enforcement report, Enforcing Religious Freedom 

in Prison. One way to illustrate the tricky kinds of problems that can arise there may be the Wotanist prison lawsuits. 

See, e.g., Lindell v. McCallum, 352 F.3d 1107 (7th Cir. 2003)(vacating an entry of summary judgment against 

Wotanist inmate); Wood v. Maine Dep’t of Corrections, 2007 U.S. Dist. LEXIS 81146 (D. Me. Oct, 25, 

2007)(recommendation of U.S. Magistrate to enter summary judgment against Wotanist inmate), summary judgment 

entered, 2008 U.S. Dist. LEXIS 42245 (D. Me. May 22, 2008). 

Wotanists worship the ancient Norse gods, chief among them Wotan (or Odin). In fact, Wotanists tend to be white 

supremacists, whose taste in literature runs to racist screeds and violent rants. See Borzych v. Frank, 439 F.3d 388, 

390 (7th Cir. 2006)(noting that Wotanism is a religion that “entail the worship of Norse gods” and rejecting Wotanist 

inmate’s claim that RLUIPA guarantees him books like The Temple of Wotan, which Wisconsin prison authorities 

had found to promote white-supremacist violence). See also Mattias Gardell, Gods of the Blood: The Pagan Revival 

and White Separatism (2003). 

The Church of the New Song provides another interesting example. Originally founded as a “game” among 

prisoners, its adherents have filed more than [a] dozen lawsuits in federal court. Goff v. Graves, 362 F.3d 543, 546 

(8th Cir. 2004). One court described the Church of the New Song, which goes by the acronym “CONS,” as “a 

masquerade designed to obtain First Amendment protection for acts which would otherwise be unlawful and/or 

reasonably disallowed....” It reported that members of CONS had (apparently tongue-in-cheek) demanded means of 

steak and wine as part of their religious regimen. Theriault v. Silber, 453 F. Supp. 254, 260 (W.D. Tex. 1978). 

Prison officials, of course, are not required to take a prisoner’s word for it when he claims adherence to a particular 

faith and argues that his free exercise of that faith is being substantially burdened by prison policies. See Coronel v. 

Paul, 316 F. Supp. 2d 868, 881 (D. Ariz. 2004)(“The question under the RLUIPA’s substantial burden prong, as this 

Court interprets it, is whether the state has prevented [the plaintiff] from engaging in conduct both important to him 

and motivated by sincere religious belief”). On the other hand, they may not play favorites in analyzing which 

religions it will accommodate and which it will not. The fact that a religion is non-traditional or just unattractive to 

others does not give the authorities carte blanche to ignore it. See U.S. Const. amend. I (“Congress shall make no 

law respecting an establishment of religion ...”). 

17 Prisoners tend to have a lot of time on their hands and often don’t hesitate to make demands. This can lead to 

“grievance fatigue” on the part of prison officials that in turn may result in a tendency to err on the side of 

accommodation. I note that the National Institute of Corrections’ reference manual on inmate religious beliefs and 

practices lists “Odinism/Asatru” along with “Protestant Christianity,” “Buddhism,” “Islam,” and other traditional 

faiths as religions that prison authorities must deal with on a fairly regular basis. See National Institute of 

Corrections, Bureau of Prisons, U.S. Department of Justice, Technical Reference: Inmates Religious Beliefs and 

Practices (Mar. 27, 2003)(hereinafter “Technical Reference”). Among the long list of religious items that such a 

congregation is permitted to have is “Thor’s Hammer.” There is some evidence that not all versions of 

Odinism/Asatrú have the same overtly racist theme that Wotanism tends to have. See Southern Poverty Law Center, 

Behind the Walls: An Expert Discusses the Role of Race-Based Gangs and Other Extremists in America’s Prisons, 

Intelligence Report (Winter 2002), available at, http://www.splcenter.org/intel/intelreport/article.jsp?sid=55. Mark 

Pitcavage of the Anti- Defamation League stated in that interview: “Non-racist versions of Asatrú and Odinism are 

pretty much acceptable religions in the prisons. But again, if it is a racist version of these religions, then those 

materials may be prohibited. I should add, though, that a recent law, the Religious Land Use and Institutionalized 

Persons Act, puts the burden more squarely on prison officials to make their case that particular sects or practices 

pose threats to security.” 
128 Peaceful Coexistence Report 

the statutory and legal remedies that are available for aggrieved individuals, since remedies have a 

profound effect on how statutes are ultimately implemented.18 But the one thing I feel sure of is 

that a pat assertion that anti-discrimination laws are “preeminent” over the First Amendment as 

 One could argue, for example, that the appropriate standard to protect the religious liberty of prisoners should be 

different from that on the outside. For one thing, outside of prison, the faithful are ordinarily responsible for their 

own religious activities. They build their own churches and temples, pay their own clergy, and celebrate the 

sacraments without direct government assistance. All they ordinarily need is to be left alone. In prison, the situation 

is different. Prisoners need more than just to be left alone to follow their faith; they need the direct and active 

cooperation of prison officials. If prisoners are to have chaplains, kosher meals, or even Christmas trees, prison 

officials must provide for them (and for any extra security these activities may require). 

That creates a substantial incentive for prisoners to request things that they would not have provided for themselves 

on the outside. It also creates an incentive for prison officials to resist even the most reasonable request for religious 

accommodation in order to protect already strained budgets. Congress has attempted to counteract the latter (but not 

the former) incentive by imposing a strict standard upon prison officials. They may not place “a substantial burden” 

on the religious exercise of a prisoner unless the imposition of that burden “is in furtherance of a compelling 

governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” It is no 

excuse that the “burden results from a rule of general applicability.” The Act itself makes it clear that a prison may 

be “require[d]...to incur expenses in its own operation to avoid imposing a substantial burden on religious exercise.” 

Religious activity is thus given priority over other uses of time and money. Prison officials must essentially err on the 

side of greater religious freedom in its rules and regulations. 

Courts have ordered prison officials to incur expenses. For example, in Jackson v. Department of Corrections, the 

Court ordered the Massachusetts Department of Correction to “employ an additional Imam” to conduct “weekly 

jum’ah services” for Muslim prisoners. 2006 Mass. Super. LEXIS 389 23 (Aug. 25, 2006). See also Gerhardt v. 

Lazaroff, 221 F. Supp. 2d 827, 842 (S.D. Ohio 2001) rev’d on other grounds sub nom. Cutter v. Wilkinson, 349 F.3d 

257 (6th Cir. 2003) rev’d 544 U.S. 709 (2005)(“The language of RLUIPA, fairly read, strongly evinces Congress’ 

intent to require the States to fund new, substantial rights....”)(internal quotation marks omitted). Other courts have 

commanded prison officials to furnish special diets for prisoners despite the added costs of doing so. See supra n. 8. 

Moreover, prisons now routinely furnish a wide assortment of special religious items to support worship as well as 

special security to support a wide variety of religious observances for a wide number of faith traditions ranging from 

Buddhist to Presbyterian, Rastafarian to Wiccan. Court orders are not required. See Technical Reference. 

Not every effort to require prisons to incur expenses to assist in religious free exercise are successful—though every 

such effort does impose its own costs on prison budgets. See Smith v. Kylar, 2008 U.S. App. LEXIS 21341 (3d Cir. 

Oct. 9, 2008)(affirming trial court’s refusal to order prison to provide Rastafarian chaplain where too few inmates 

were Rastafarian). Efforts to require prisons to construct a sweat lodge for practitioners of traditional Native 

American religions appear to have often resulted in failure, see, e.g., Fowler v. Crawford, 534 F.3d 931 (8th Cir. 

2008), but some prisons that had previously declined to provide a sweat lodge have later changed their policy. See 

Pounders v. Kempker, 79 Fed. Appx. 941, 943 n.2 (8th Cir. 2003). 

18 I believe that RFRA and RLUIPA would have to be substantially overhauled if ever the Prison Litigation Reform 

Act (“PRLA”), 42 U.S.C. § 1997(e), were repealed (or just repealed as it affects RFRA or RLUIPA). It is entirely 

possible that part of the reason that frivolous and vexatious litigation under RFRA and RLUIPA has not reached 

greater levels is PRLA, which was in part passed in response to the perception that federal courts had become 

overwhelmed with frivolous and vexatious litigation. For that reason, in its 2008 enforcement report, Enforcing 

Religious Freedom in Prisons, the Commission made the following recommendation: “We see no reason to provide 

religious liberty claims with a special exemption from [PLRA’s] provisions relating to exhaustion, the limitation on 

monetary awards absent a physical injury and attorneys’ fees.” 2008 Report Recommendation 4 at 103. For my 

discussion of the reasons for that recommendation and conclusion, see Statement of Gail Heriot, Enforcing Religious 

Freedom in Prisons 126-29 (2008). 
Commissioners’ Rebuttals 129 

well as RFRA and RFRA-style laws is not an argument. It is merely triumphalism in the 

immediate wake of Obergefell.

Commissioner Achtenberg’s Statement then goes on to discuss pending state and federal 

legislation, much of which is really outside the scope of this report. But since she describes it in 

such emotionally-charged terms, I feel obligated to comment where I can. While I regard some of 

these bills as good policy, some as in need of tinkering and others as likely misguided, I view 

Commissioner Achtenberg’s general description as overly dramatic. Although I have not been 

able to review them all, from what I have seen so far, it seems unfair to characterize these bills as 

a “backlash” against the LGBT community.19 

 

19 Note that from the standpoint of those who support traditional marriage, the backlash has been against them, not 

against the LGBT community, and it started a few years ago, not just last summer. They see the various state 

legislative bills as an effort to stop that backlash, and it is easy to see why they would see it that way. 

For them, it began in earnest with the harassment and reprisals experienced by supporters of California’s Proposition 

8, which amended the California Constitution to overrule the California Supreme Court’s decision in favor of samesex marriage. See, e.g., Hollingsworth v. Perry, 558 U.S. 183, 195 (2010)(per curiam)(stating that past harassment 

“substantiated” witness concerns about testifying at a televised trial and noting “71 news articles detailing incidents 

of harassment related to people who supported Proposition 8”); Doe v. Reed, 561 U.S. 186, 205 (2010)(Alito, J., 

concurring)(noting “widespread harassment and intimidation suffered by supporters of California’s Proposition 8); 

Citizens United v. FEC, 558 U.S. 310, 480-83 (2010) (Thomas, J., concurring in part and dissenting in part)(detailing 

“intimidation tactics” used by Proposition 8 opponents against its supporters). Harassment tactics included acts of 

vandalism to the homes, cars, and other property of Proposition 8 supporters. Thomas M. Messner, The Price of 

Prop 8 at 3-4 & nn. 8-12, 15, 17-18 (2009). A number of Mormon houses of worship were vandalized. Jennifer 

Garza, Feds Investigate Vandalism at Mormon Sites, Sacramento Bee (Nov. 14, 2008). A number of donors to 

Proposition 8 allegedly “has ... their employees harassed, and ... received hundreds of threatening emails and phone 

calls.” Declaration of Frank Schubert in Support of Defendant- Intervenors’ Motion for a Protective Order at 6, Perry 

v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010). Other supporters of Proposition 8—in this case supporters 

distributing materials and displaying pro-8 decals—were reportedly “victims of physical assaults such as being spat 

upon and having hot coffee thrown on them by passengers in passing automobiles.” Declaration of Ronald Prentice 

in Support of Defendant-Intervenors’ Motion for a Protective Order at 4, id. 

Some Proposition 8 supporters were reportedly physically attacked, including one with Yes on 8 campaign signs, who 

needed stitches after being punched in the face by someone who seized the signs and yelled, “What do you have 

against gays?” Attack Outside of Catholic Church Part of “Wave of Intimidation,” Says Yes on 8, Catholic News 

Agency (Oct. 15, 2008). Others received death threats. Brad Stone, Prop 8 Donor Web Site Shows Disclosure Law Is 

2- Edged Sword, N.Y. Times (Feb. 8, 2009). See also Editorial, Prop 8 - Boycott or Blacklist?, L.A. Times (Dec. 

10, 2008)(concluding that “postelection boycott efforts: by “defenders of same- sex marriage” have turned into “a 

vengeful campaign against individuals who donated” in support of Proposition 8, “usually in the form of pressure on 

their employers”). 

There are many more examples. See Brief of Amici Curiae ProtectMarriage.com - Yes on 8, Dennis Hollingsworth, 

Martin Gutierrez, and Mark Jansson in Support of All Respondents, Obergefell v. Hodges, 135 S.Ct. 2584 (2015). 

By contrast, the period immediately after Obergefell was relatively quiet, perhaps because supporters of same-sex 

marriage had won. The major exception was that calls to strip churches that support traditional marriage of their tax 

exemption began to surface. See, e.g., Harry Bruinius, Same-Sex Marriage: Will Conservative Religious Colleges 

Lose Tax Exempt Status?, Christian Science Monitor (July 1 2015)(“‘I don’t think that a number of these religious 

schools can reasonably hope to adhere to principles that are clearly in violation of public policy, a la Bob Jones,’ say 

Michael Olivas, law professor and director of the Institute for Higher Education Law & Governance at the University 

of Houston”); Felix Salmon, Does Your Church Ban Gay Marriage?: Then It Should Start Paying Taxes, Fusion 
130 Peaceful Coexistence Report 

Commissioner Achtenberg states, “Threats to civil liberties, cloaked as ‘religious freedom’ 

protection bills, are emerging in dozens of states and localities across the nation.” She 

elaborates by stating: 

“In 2015, twenty-eight state legislatures were already considering more than 

eighty-five anti-LGBT bills by mid-March. 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, and other aspects of daily life based on ‘religious exemption.’” 

The source of this allegation is apparently the web site of an advocacy organization—the 

Human Rights Campaign—that specializes in LGBT issues. Commissioner Achtenberg supplies a 

URL to a page on that web site that makes the allegation that in 2015 twenty-eight state 

legislatures were already considering eighty-five anti-LGBT bills by mid-March. Two prominent 

red buttons are marked “Donate” and “Give Now.” 

Pending legislation on the Human Rights Campaign web site is described in apocalyptic 

terms, but seldom in sufficient detail to enable the reader to locate the bill without substantial 

effort. This is not the kind of source that should be cited in a report of the U.S. Commission on 

Civil Rights. If there are 85 or more bills out there that raise concern, we should be looking at and 

citing the actual bills one by one, not the characterizations of those bills by an advocacy 

organization out to excite potential donors. Since Commissioner Achtenberg does not cite to any 

of the actual state bills she refers to, it seems unlikely that she has examined them directly. In the

short amount of time I had, I tried to examine some of them. But I could not analyze all or nearly 

all of them given that time. I note again that many of them have nothing to do with the topic of 

this report. 

RFRA-style State Bills: As many as 25 of the bills are described by the Human Rights 

Campaign as RFRA-style laws.20 As Commissioner Achtenberg admits herself elsewhere in her 

 (June 29, 2015). If these calls are eventually successful (and that is a big “if”), it will be a major backlash against 

faithful adherents to traditional marriage. 

My point in bringing this up is that civil rights leaders, leaders of the same-sex marriage movement, and leaders of the 

traditional marriage movement have a responsibility to avoid putting their arguments in exaggerated terms that are 

likely to inspire lawlessness. Once the cycle begins, it is not always easy to stop. 

20 I have been able to locate some of them. See, e.g, Indiana Senate Enrolled Act No. 1 (available at 

https://www.documentcloud.org/documents/1699997-read-the-updated-indiana-religious- freedom.html), which was 

later amended to make clear that it “does not authorize a provider to refuse to offer or provide services, facilities, use 

of public accommodations, goods, employment, or housing to a member to any member of the general public”; 

Nevada S.B. 272 (available at https://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB272.pdf) , Nevada A.B. 277 

(available at https://www.leg.state.nv.us/Session/78th2015/Bills/AB/AB277.pdf) (both bills appear to have died in 

committee); Montana House Bill No. 615, (available at http://leg.mt.gov/bills/2015/billpdf/HB0615.pdf ) (bill was 

defeated); Arkansas Senate Bill 975 (available at 

https://drive.google.com/viewerng/viewer?url=http://www.arkleg.state.ar.us/assembly/2015/20 
Commissioners’ Rebuttals 131 

Statement, RFRA was a bipartisan effort that passed the Senate 97-3. I am certainly open to 

reasoned arguments that RFRA-style laws are less than perfect. But to suggest that they are 

“thinly-veiled attempts to turn back the clock” that will “fall in constitutional challenge as 

overbroad and motivated by animus,” as Commissioner Achtenberg does in her Statement, is 

deeply unfair.21

 15R/Bills/SB975.pdf); Georgia Senate Bill No. 129 (available at http://rfraperils.com/wpcontent/uploads/2014/01/Georga_SB129_Pending_2015_RFRA.pdf )(failed to pass; Governor Nathan Deal later 

vetoed another religious liberty bill introduced later); Utah S.B. 296 (available at 

http://le.utah.gov/~2015/bills/static/SB0296.html), which was reportedly praised by the HRC for including language 

that sought to strike a balance between protecting the interests of LGBT persons and persons of faith (see Dennis 

Romboy, “Utah, Indiana religious freedom laws not alike,” Deseret News National, April 1, 2015 (available at 

http://national.deseretnews.com/article/3942/utah- indiana-religious-freedom-laws-not-alike.html); Colorado House 

Bill 15-1171 (available at 

http://www.leg.state.co.us/clics/clics2015a/csl.nsf/fsbillcont3/3901E9064BFBA38187257DA4000302AA?open&file

=1171_01.pdf); South Dakota House Bill No. 1220 (available at 

http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?File=HB1220P.htm&Session=2015&Bill=HB 

%201220)(defeated by the House); Oklahoma H.B. 1371 (available at 

https://www.billtrack50.com/BillDetail/659832); Michigan House Bill No. 5958 (available at 

http://www.legislature.mi.gov/documents/2013-2014/billengrossed/House/pdf/2014-HEBH-5958.pdf)(passed 

Michigan’s House but stalled in its Senate); Mississippi Senate Bill No. 2681 (available at 

http://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2600-2699/SB2681PS.pdf); Maine L.D. 1428 (available at 

http://www.mainelegislature.org/legis/bills/bills_126th/billtexts/SP051401.asp)(rejected by Maine’s Senate); West 

Virginia H.B. 4012 (available at 

http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb4012%20intr.htm&yr=2016&sesstype=RS&i=401

2)(rejected by West Virginia’s Senate.) 

Some of these are proposed constitutional amendments that, if passed, would need to be approved by a majority of 

the state’s voters before amending the Constitution. See, e.g., Missouri Senate Joint Resolution No. 39, available at 

http://www.senate.mo.gov/16info/pdf-bill/intro/SJR39.pdf; Texas H.J.R. No. 55, available at 

http://www.legis.state.tx.us/tlodocs/84R/billtext/pdf/HJ00055I.pdf. 

Some of these bills closely resemble the federal RFRA. A few have been commonly described as stronger. If 

Commissioner Achtenberg had problems with particular bills I would have been happy to look at them with her. 

Note that several of these bills appear to have died without getting much serious legislative consideration (which 

tends to be the fate of most bills in both state legislatures and Congress). 

21 An example of a limited-scope, RFRA-style bill is Tennessee’s H.B. 1840, which as of this writing had cleared the 

legislature and is awaiting the Governor’s signature. H.B. 1840, which has been unfairly called “Hate Bill 1840,” 

would permit a counselor or therapist with sincerely held principles that conflict with a potential client’s “goals, 

outcomes or behaviors” to decline to offer counseling/therapy to that potential client, provided that he or she refers 

the potential client to someone who will. It does not apply if the potential client is in imminent danger of harming 

himself or others. 

That anyone would object to this is curious. Few individuals would want a counselor or therapist who objects to their 

lifestyle. Should a Muslim be required to counsel a gay man who seeks to persuade another gay man to marry him? 

Should a Roman Catholic be required to help the owner of an abortion clinic work through the day-to-day stresses 

connected with his business? Should a Jainist be forced to provide therapy for the owner of a slaughterhouse as he 

discusses how he sends animal after animal to its death? 

I can imagine a law that actually forbids such a counselor or therapist from working with such a client on the ground 

of conflict of interest. Under certain circumstances, for example, attorneys may be forbidden from representing a 

client with whom they may have a conflict of interest. But I have a harder time imagining a legitimate reason for 
132 Peaceful Coexistence Report 

How does Commissioner Achtenberg explain why Congressional Democrats massively 

supported RFRA, despite its being, in her view, not just a terrible law, but an actual “threat[] to 

civil liberties”? It turns out it is George W. Bush’s fault—or so her argument goes. The reader is 

told that during his administration, the Department of Justice’s Office of Legal Counsel (“OLC”) 

issued an opinion that encouraged “an overbroad interpretation of RFRA,” causing RFRA to 

“become highly politicized and a source of discriminatory overreach [that] must be curtailed.” 

Achtenberg at 36. 

Her statement does not specify what was in the OLC opinion. We’re supposed to take her 

word for it that it was “overbroad” and has caused RFRA to become “overpoliticized.” But by 

my reading, the OLC opinion she complains of should have been fairly routine for those who take 

the text of statutes seriously. See Office of the Legal Counsel, Memorandum Opinion for the 

General Counsel: Office of Justice Programs: Application of the Religious Freedom Restoration 

Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act, vol. 

31, 1 (June 29, 2007). 

The issue concerned World Vision, an Evangelical Christian humanitarian organization 

founded by the Rev. Robert Pierce, an American Baptist minister, missionary and relief worker. 

Its web site describes its mission thusly: 

 wanting to compel counselors and therapists like those covered by this bill to take on a client whose “goals, 

outcomes or behaviors” conflict with their “sincerely held religious belief.” In a statement adopted by the 

Commission on April 15, 2016, the majority of my colleagues alleged that this law “is part of an alarming trend to 

limit the civil rights of a class of people using religious beliefs as the excuse.” It seems just the opposite to me. This 

law decreases the likelihood that a gay individual in need of counseling or therapy will be saddled with a counselor 

or therapist who disapproves of the way he leads his life. 

Another example is the portion of Mississippi’s H.B. 1523, which was signed into law by the Governor on April 5, 

2016, that deals with same-sex marriage and “sex reassignment” surgery, treatment and related therapy. First, it 

seeks to ensure that those who have religious or moral objections to same-sex marriage are not forced to participate 

in same-sex weddings as wedding planners, photographers, cake designers, etc. This includes state employees with 

responsibilities for issuing marriage licenses or officiating at weddings (although the bill additionally requires all 

necessary steps be taken to ensure that the couple’s wedding not be imperiled or delayed by such recusals). Similar 

dispensations (with appropriate limitations) were given to persons with religious and moral objections to 

participating in sex reassignment surgery, treatment and related therapy. The Act also reaffirms the First Amendment 

rights of such employees and also adoptive and foster parents to express their views on same-sex marriage, sex 

outside marriage and the immutability of biological sex. 

Note that the purpose of this legislation is not to deny same-sex couples the opportunity to celebrate their weddings 

(or transgenders access to sex reassignment surgery treatment or related therapy). Same-sex couples have many 

alternative sources for wedding services. The purpose is to avoid coercing unwilling individuals into participating in 

something they do not believe in. There are many in this nation with sincere religious and moral objections to samesex marriage. Denying that, as our colleagues do, is simply a way to pretend the issues that face us as a nation are 

easy. Toleration is all about leaving people alone to live their lives as they see fit; it is not about forcing people to 

take part in other people’s lives. Whatever it is that my Commission colleagues are standing up for, it is not 

toleration. 
Commissioners’ Rebuttals 133 

“World Vision is an international partnership of Christians whose mission is to 

follow our Lord and Savior Jesus Christ in working with the poor and oppressed to 

promote human transformation, seek justice, and bear witness to the good news of 

the Kingdom of God.

We pursue this mission through integrated, holistic commitment to:

* Transformational development that is community-based and sustainable, focused 

especially on the needs of children.

Emergency relief that assists people afflicted by conflict or disaster.

* Promotion of justice that seeks to change unjust structures affecting the poor 

among whom we work.

* Partnerships with churches to contribute to spiritual and social transformation.

* Public awareness that leads to informed understanding, giving, involvement, and 

prayer.

* Witness to Jesus Christ by life, deed, word, and sign that encourages people to 

respond to the Gospel.” 

http://www.worldvision.org/about-us/who-we-are#sthash.wsZ2ZwaP.dpuf 

In other words, World Vision’s team does the kind of work that most of the rest of us only 

dream of doing. And they do it for the greater glory of their Creator. I distinctly remember 

during the Ethiopian famine of the mid-1980s, a newspaper reported that there were only two 

relief organizations getting through to the hinterland, where food and supplies were needed 

most—World Vision and Catholic Relief Services. Why? Unlike their secular counterparts, they 

had a ground game—networks of Evangelical Christians and Roman Catholics respectively—who 

knew the terrain and were willing to risk their lives to perform what they saw as their duty as 

Christians. Their trucks rolled, while the materials brought in by other famine relief organizations 

languished in airports, railway depots, and cities.22 My respect for both organizations is 

boundless. I wept off and on for days thinking of their heroism.23

 

22 Despite my very vivid recollection of this article, which I suspect ran in the Washington Times, I have been unable 

to find it. But a few other articles I have found collectively convey the substance of the story. See Clifford May, U.S. 

Will Give Development Aid to Ethiopia, N.Y. Times, May 9, 1985, available at 

http://www.nytimes.com/1985/05/09/world/us-will-give-development-aid-to- ethiopia.html; Rhonda Givens, 

Pennies, Dimes, Dollars: World Vision Takes in Millions to Aid the Starving, L.A. Times, Feb. 24, 1985, available at 

http://articles.latimes.com/1985-02-24/news/ga-24806_1_world-vision. 

23 It brought to mind the lyrics of John Bunyan’s well-known hymn, He Who Would Valiant Be:

No foes shall stay their might, 
134 Peaceful Coexistence Report 

But guess what? World Vision hires only practicing Christians who believe in its 

statement of faith.24 World Vision has even dismissed employees who turned out to be nonbelievers.25 Put differently, its leaders discriminate on the basis of religion. They believe it is 

their Christian mission that unites them and makes them strong. No one with the gift of 

wisdom would doubt them on this.

Among World Vision’s many other humanitarian projects is its Vision Youth Program, 

which seeks “‘to transform the lives of high-risk young people in eight locations across the 

country’ by facilitating ‘one-on-one mentoring, educational enhancement, and life-skills training 

for at-risk children and youth.’” OLC Op. at 2, quoting World Vision Grant Application. It was 

this project that gave rise to the OLC’s need to interpret RFRA. World Vision sought and 

received a government grant pursuant to the Juvenile Justice and Delinquency Prevention Act, 

which is administered by the Department of Justice’s Office of Justice Programs, for its Vision 

Youth Program.

Grants made pursuant to the Juvenile Justice and Delinquency Prevention Act are subject 

to 42 U.S.C. § 3789d(c), the nondiscrimination provision of the Omnibus Crime Control and Safe 

Streets Act of 1968 (“the Safe Street Act”), Pub. L. No. 90-351, 82 Stat. 197. That provision of 

the law states, “No person ... shall on the ground of ... [among other things] religion ... be 

subjected to discrimination under or denied employment in connection with any programs or 

activity funded in whole or in part with funds made available under this chapter.”

Unlike Title VII, the Safe Streets Act has no explicit section exempting religious 

organizations from its prohibition on religious discrimination. But RFRA applies. The OLC 

agreed that applying the anti-discrimination prohibition would impose a “substantial burden” on 

World Vision’s religious exercise and that the burden was not “the least restrictive means of 

furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Consequently, 

World Vision did not have to give up its identity in order to qualify for a federal grant.26

Who would have argued that World Vision’s religious mission was not substantially 

burdened by requiring it to hire atheists? I have a hard time imagining. Those who will brook 

no challenge to the plenary power of the State? Those who are out to weaken all institutions that 

function as counterweights to the centralized power of the State?27 Or maybe those driven to 

 Though they with giants fight. 

John Bunyan, He Who Would Valiant Be, English Hymnal (1906)(mutatis mutandis). 

24 Spencer v. World Vision, Inc., 633 F.3d 723, 736 (9th Cir. 2010). 

25 Id. at 725 (9th Cir. 2010) (“In 2006, World Vision discovered that the Employees denied the deity of Jesus Christ 

.... As this was incompatible with World Vision’s doctrinal beliefs ... the Employees were terminated.”). 

26 Note Smith involved a government subsidy too. 

27 At an earlier point in my life, I would have maintained that almost no American was interested in weakening the 
Commissioners’ Rebuttals 135 

distraction by the notion that somewhere there is a party that they are not invited to? I cannot 

say. I believe that OLC got it right with its conclusion that it would substantially burden an 

Evangelical Christian humanitarian relief organization to be required to hire non-believers.28

Commissioner Achtenberg’s suggestion that it is only because of OLC’s World Vision 

opinion that RFRA has become a problem is thus off-base. It is a handy explanation for why 

RFRA was so uncontroversial among Democrats and Republicans alike in 1993, but is now 

anathema to right-thinking Progressives. But it simply doesn’t fit the facts. Whether one was 

initially a fan of RFRA or not, all this was implicit in the standard in 1993.

The real story is likely driven by political convenience. RFRA was fine when it protected 

Native Americans who had been fired from their jobs at a private drug rehabilitation clinic for 

using peyote in the course of a Native American religious ceremony. For years, the ACLU and 

other left-leaning organizations were happy to represent plaintiffs in lawsuits brought pursuant to 

RFRA and RFRA-style state laws. But the case of the Indiana bakers who, motivated by their 

understanding of Biblical teachings, declined to create a cake to celebrate the commitment 

ceremony of a gay couple, doesn’t appeal to them.29 The bakers’ actions were considered by them 

to be intolerant and intolerable.30

 numerous institutions that we collectively call “civil society,” each of which in its own way contributes to the health 

of the nation as a whole precisely because it is not part of the government and therefore does not make use of coercive 

power. Now I am not surprised when I learn that a popular Presidential candidate opposes private charity: 

“I don’t believe in charities,” said Mayor [Bernard] Sanders, bringing a shocked silence to a 

packed hotel banquet room. The Mayor, who is a Socialist, when on to question the “fundamental 

concepts on which charities are based” and contented that government, rather than charity 

organizations, should take over responsibility for social programs. 

Albin Krebs & Robert McG. Thomas, Notes on People: Some Disunity Along the United Way, N.Y. Times (Sept. 

19, 1981).

28 The answer to the question, “Is the Pope Catholic?” used to be considered obvious. Perhaps if those who those who 

believe the OLC Opinion has caused RFRA to “become highly politicized and a source of discriminatory overreach 

[that] must be curtailed” get their way, it will not be so obvious. The Roman Catholic Church will be just one more 

civil institution that needs to be reduced to utter conformity with the will of the State. 

29 The owners of 111 Cakery were husband and wife and members of a Baptist church. They had a policy of not 

creating a custom cake with a message related to alcohol, drugs or violence. When asked to create a custom cake to 

celebrate a same-sex commitment ceremony, they declined, saying they would be happy to help the couple with 

anything else. Their business was located in a neighborhood with many same-sex couples, and the owners did not 

decline to serve same-sex couples seeking to purchase a cake for other reasons. In explaining their decision, they 

wrote: “Why are we doing what we do? We want to show the love of Christ. We want to be right with our God, but 

we also want to show kindness and respect to other people.” See Owners Who Refused Cake for Gay Couple Close 

Shop, Christianity Today (March 3, 2015); Will Higgins, Owners Who Refused Cake for Gay Couple Close Shop, 

USA Today (Feb. 27, 2015); Yvonne Man, Same-Sex Couple Denied Cake by Bakery; Owners Speak Out, 

Fox59.com (March 14, 2014). 
136 Peaceful Coexistence Report 

When it comes to discrimination, the real question is evidently whose ox is being gored. 

That raises the question of what my colleagues would have thought if the roles had been somehow 

reversed: What if a same-sex couple owning a videography business had been asked to be the 

videographers for a meeting of the Christian Association to Limit Marriage to Opposite-Sex 

Couples? Or a Muslim baker had been asked to design a cake making fun of Mohammad? Or a 

woman baker had been asked to bake a sexually-explicit cake for a gathering of Hustler Magazine 

subscribers? Under those circumstances, not only would many left-of-center groups continue to 

support RFRA-style laws, they would argue that they don’t go far enough (because the bakers’ 

objections in my hypotheticals are not all faith-based).

The outrage machine that has been cranked up since Obergefell against RFRA-style laws 

in states like Indiana and Georgia has been astonishing given the near-unanimity of Congress at 

the time of RFRA’s initial passage. These laws are not, as Commissioner Achtenberg puts it, of 

“[t]hreats to civil liberties, cloaked as ‘religious freedom.’” Nor are they an “effort to 

eviscerate nondiscrimination protections.” Achtenberg at 33, 152. It’s a shame the rhetoric 

has gotten so out of hand.

Nelson Mandela once said, “When a man is denied the right to live the life he believes in, 

he has no choice but to become an outlaw.”31 RFRAs and RFRA-style laws are intended to avoid 

such outcomes. I don’t think it helps for my colleagues to insist that this is not really an issue of 

religious freedom. It is always tempting to view one’s ideological adversaries as simply 

scoundrels or hypocrites. Those with political clout can feel good about just mowing those who 

disagree with them down. It’s so much easier than beginning the slow and meticulous process of 

engagement. But the right thing to do is often the more difficult thing to do. And this case is no 

 In Oregon, a similar story unfolded with a slight twist. Aaron and Melissa Klein, owners of Sweet Cakes by Melissa, 

had declined to design and bake a cake for the wedding of Rachel Cryer and Laurel Bowman, a lesbian couple. 

Oregon had (and continues to have) an applicable law that prohibits discrimination on the basis of sexual orientation, 

and the couple who sought the cake decided to file a complaint with the Oregon Labor Commission and were 

eventually awarded $135,000 in damages. George Rede, Sweet Cakes Final Order: Gresham Bakery Must Pay 

$135,00 for Denying Service to Same-Sex Couple, Oregonlive.com (July 2, 2015). Again in this case, the Kleins had 

not declined to sell baked goods to Ms. Cryer and Ms. Bowman, but, citing their religion, they did not wish to put 

their creative talents to work in a way that, in their view, appeared to specifically condone same-sex marriage. 

30 The argument is made that the RFRA claim in the Indiana bakery case should fail, because the State has a 

“compelling governmental interest” in ensuring that no one is ever discriminated against on account of race, color, 

sex, religion, national origin or sexual orientation. Tell that to Barbara Grutter. In Grutter v. Bollinger, 539 U.S. 306 

(2003), the Court held that the University of Michigan may discriminate against Asians and whites in order to obtain 

the racial mix of students the University prefers. Why didn’t the federal government have a compelling governmental 

interest to ensure that the ban on race discrimination in Title VI of the Civil Rights Act of 1964 be enforced there? 

Grutter involved discrimination by a state university—making it a much stronger case for race-neutrality than the 

Indiana bakery case. 

31 E.g., Philip Gourevitz, Nelson Mandela, The New Yorker (Dec. 16, 2013)(quoting Mandela). 
Commissioners’ Rebuttals 137 

exception: Try to persuade them you are right, and be open to the possibility that sometimes they 

are right and might persuade you instead. 

Reasonable people may disagree both on how extensive anti-discrimination laws should be 

and how far protections of religious liberty should go. They may draw distinctions between cases 

that involve race, cases that involve sex and cases that involve sexual orientation. They may draw 

distinctions between public and private conduct or between the conduct of monopoly services and 

services, like the Indiana bakery case (and the similar case in Oregon) where alternatives exist for 

those seeking services. But when opponents of these laws shriek that the other side’s true intent 

is only “cloaked as ‘religious freedom’” and that the other side’s real project is to “eviscerate” 

anti-discrimination laws, they are being unfair and unreasonable. 

State Bills Concerning Adoption Agencies: Some of the bills referred to by the Human 

Rights Campaign involve adoption services. According to the Human Rights Campaign, these 

bills “attack adoption” and place “[p]rospective parents” “at risk of rejection for reasons 

completely unrelated to their ability to parent a child.” In fact, they don’t affect anyone’s “right” 

to adopt (assuming that anyone has the right to adopt a child). They simply affect whether 

certain faith-based adoption agencies can exist as an option. 

I have located the three bills on this topic collectively signed into Michigan law on June 

11, 2015.32 Together they codified Michigan’s already-existing practice of allowing faith-based 

adoption agencies to decline to provide adoption services when to do so would conflict with that 

faith. The main operative clause states: 

(2) To the fullest extent permitted by state and federal law, a child placing agency 

shall not be required to provide any services if those services conflict with, or 

provide any services under circumstances that conflict with, the child placing 

agency's sincerely held religious beliefs contained in a written policy, statement of 

faith, or other document adhered to by the child placing agency. 

Pub. L. 53 (2015), codified at Mich. Comp. Laws 722.124e. 

The new Michigan law then went on to improve matters from the standpoint of anyone an 

agency declines to serve by requiring that agency to provide referrals. 

(4) If a child placing agency declines to provide any services under subsection (2), 

the child placing agency shall provide in writing information advising the

applicant of the department's website, the Michigan adoption resource exchange or 

 

32 Mississippi’s H.B. 1523, signed into law by the Governor on April 5, 2016 is another example. Among other 

things, it deals with the adoption issue, available at

http://index.ls.state.ms.us/isysnative/UzpcRG9jdW1lbnRzXDIwMTZccGRmXGhiXDE1MDAtMTU5O 

VxoYjE1MjNpbi5wZGY=/hb1523in.pdf. 
138 Peaceful Coexistence Report 

similar subsequently utilized websites, and a list of adoption or foster care service 

providers with contact information and shall do at least 1 of the following: 

a) Promptly refer the applicant to another child placing agency that 

is willing and able to provide the declined services. 

b) Promptly refer the applicant to the webpage on the department's 

website that identifies other licensed child placement agencies. 

Pub. L. 53 (2015), codified at Mich. Comp. Laws 722.124e. 

There is a tragic story behind laws like Michigan’s. A decade ago, Catholic Charities of 

Boston was forced to close down its adoption service as a result of the lack of such a law in 

Massachusetts. See Jeff Jacoby, Adoption Flap a Tragedy for Children, Boston Globe (March 5, 

2006); Jeff Jacoby, Kids Take Backseat to Gay Agenda, Boston Globe (March 15, 2006). 

Catholic Charities was well-known in New England for its success in placing hard-toplace children—those with physical handicaps or behavioral problems—in loving homes. But in 

2003, a Vatican office headed by then-Cardinal Joseph Ratzinger (later Pope Benedict XVI) 

prohibited the practice of allowing gay couples to adopt children, calling it "gravely immoral," a 

form of "violence" that places children "in an environment that is not conducive to their full 

human development." This conflicted with Massachusetts law, which prohibited organizations 

that work under contract with the state, presumably including adoption agencies, from

discriminating in any way on the basis of sexual orientation. 

Catholic Charities sought a statutory dispensation for faith-based adoption services. The 

Massachusetts legislature, having been heavily lobbied by advocacy groups, refused to grant such 

a dispensation. As Jacoby put it:

The church's request for a conscience clause should have been unobjectionable, at 

least to anyone whose priority is rescuing kids from foster care. Those who 

spurned that request out of hand must believe that adoption is designed primarily 

for the benefit of adults, not children. The end of Catholic Charities' involvement 

in adoption may suit the Human Rights Campaign. But it can only hurt the 

interests of the damaged and vulnerable children for whom Catholic Charities has

long been a source of hope. 

Id.

Note that the advocacy group cited by Jacoby—the Human Rights Campaign—is the same 

group whose research was relied upon by Commission Achtenberg when she characterized these 

bills as “threats to civil liberties, cloaked as ‘religious freedom’ protection bills.” The Human 

Rights Campaign thought Catholic Charities, operating under rules from the Vatican it could do 

nothing about, was a threat to civil liberties. It didn’t matter that anyone who couldn’t adopt 
Commissioners’ Rebuttals 139 

through Catholic Charities could easily go to one of the other adoption agencies. More tellingly, 

it didn’t matter that Catholic Charities had greater successes placing children with disabilities and 

behavioral problems than other agencies. 

Miscellaneous State Bills that Do Not Involve Issues of Religious Liberty: The rest of 

the bills alluded to by Commissioner Achtenberg have nothing to do with the subject of this 

report, so I will address them only briefly.33 Many of them affect only transgender34 issues rather 

than LGBT issues more generally.35

 

33 The most talked-about bill in the press may be North Carolina’s H.B. 2, which was signed into law by the Governor 

on March 23. See Tal Kopan and Eugene Scott, North Carolina Governor Signs Controversial Transgender Bill, 

CNN.com (Mar. 24, 2016), available at http://www.cnn.com/2016/03/23/politics/north-carolina-gender-bathroomsbill/. 

One unusual aspect of the North Carolina bill that has drawn criticism is the fact that it appears to take away from 

local governments the power to promulgate ordinances banning discrimination in employment as well as a few other 

areas. To understand this aspect of the bill, one must first understand something about North Carolina’s system of 

local government and its Constitution, which was adopted in 1971, much too early to be a deliberate effort to thwart 

the policy objectives of LGBT advocacy organizations. 

North Carolina is one of the few non-home rule states. Frayda S. Bluestein, Do North Carolina Local Governments 

Need Home Rule?, 84 N.C. L. Rev. 1983, 2003 (2006). Among other things, the North Carolina Constitution does 

not permit the state or local governments to enact ordinances governing labor and employment in a local area. See 

N.C. Const. art. II, § 24; Williams v. Blue Cross Blue Shield of North Carolina, 357 N.C. 170, 581 S.E. 2d 415 

(2003). This was an effort—by creating a single set of laws governing employment—to create a business climate that 

would produce more jobs for North Carolinians. In the past, some local governments made efforts to circumvent the 

policy by imposing labor and employment requirements on their public contractors. That practice was then prohibited 

by the North Carolina legislature, which was also keen to prevent North Carolina from becoming a patchwork of 

different ordinances. 

H.R. 2 was triggered by a City of Charlotte ordinance that was seen as another effort by a local government to create 

that patchwork. Adding to North Carolina’s discomfort was the fact that the ordinance passed at the same time that 

city governments in other parts of the country were raising the minimum wage to what many regard as unsustainable 

levels. The legislature feared that this could result in substantial job loss to North Carolinians. 

Interestingly, the Charlotte City Council had not attempted to prohibit discrimination on the basis of “marital status, 

familial status, sexual orientation, gender identity, and gender expression” in employment, since it was fairly clear it 

had no such power. Nor did it attempt to circumvent that policy by imposing labor and employment requirements on 

their public contractors, since it was fairly clear it had been statutorily prohibited from that too. Instead, it came in at 

a slightly different angle by attempting to impose requirements that its contractors refrain from discriminating on the 

basis of “marital status, familial status, sexual orientation, gender identity, and gender expression” in their other 

business dealings, including their dealings with their suppliers and other customers (regardless of whether those 

contractors were located in Charlotte or elsewhere). Note the problem here: If cities have the authority to place 

requirements on contractors in this way, contractors located in Raleigh or in Chicago could be required to follow 

Charlotte law. What happens if the local law in Raleigh or in Chicago requires something entirely different? What, 

for example, if another city requires family discounts while Charlotte law apparently forbids them? 

The patchwork that North Carolina wanted to avoid was re-asserting itself. Among other things, therefore, H.B. 2 reasserted that the state legislature and not localities controlled labor and employment law, including wage and hour law 

and employment discrimination law. This was not a change in the law, except to clarify what was already obvious—

that its previous law against sex discrimination concerned biologically defined sex. 
140 Peaceful Coexistence Report 

Athletic Teams: Some of these bills will, if passed, define who is eligible for girls’ teams 

at elementary and secondary schools and who is not. In a better world, I might have preferred to 

leave this issue to local coaches, teachers, principals and school boards. But given the aggressive 

stance taken on transgender issues by the U.S. Department of Education’s Office for Civil Rights 

(“OCR”), I am not surprised that state legislatures have been tempted to intervene. OCR has 

 Might North Carolina prohibit employment discrimination on the basis of “marital status, familial status, sexual 

orientation, gender identity, and gender expression” or some subset of those bases at some point in the future? It is 

always possible. Shortly after H.B. 2’s passage, the Governor, in what might have been intended as a gesture of good 

will given the panic in the LGBT community, issued an executive order banning sexual orientation and gender 

identity discrimination in state government employment. But first and foremost, H.B. 2 was about hurriedly reasserting the state government’s authority and its policy against legal patchworks. In addition to re-asserting that 

local governments cannot regulate labor and employment either directly or through public contracts, the legislature 

pushed back on local governments’ efforts to regulate contractors’ other business dealings and its efforts to regulate 

the business dealings of businesses open to the public. Note that the latter move actually expanded the reach of antidiscrimination law. Prior to that, there had been no North Carolina law requiring businesses open to the public to 

serve all comers, regardless of race, religion, color, national origin or biological sex. Now there is. (Federal law—

Title II of the Civil Rights Act of 1964—prohibits discrimination by public accommodations on the basis of race, 

color, religion or national origin. But a “public accommodation” is defined narrowly to include such things as hotels, 

restaurants and places of public entertainment. The North Carolina law’s coverage is now broader and includes 

ordinary retail establishments.) For a discussion of other aspects of the North Carolina bill, see infra at n.41; 

Statement of Commissioners Gail Heriot and Peter Kirsanow, available at

http://www.newamericancivilrightsproject.org/wpcontent/uploads/2016/04/HeriotKirsanowFinalStatementwithAppendix.pdf. 

34 Confused by the term “transgender”? Lots of people are. These days it is used as an umbrella term. Some use the 

circular definition that anyone who considers himself or herself to be transgender is transgender. A more helpful 

definition would be that anyone who was born into one sex, but who psychologically identifies with the other sex (or 

some third alternative or combination of alternatives) is transgender. A transgender is not necessarily a transsexual 

in the sense that not all transgenders have had surgical alteration of their genitalia. Indeed, few have undergone such 

procedures. Not all (or even most) transgenders have had any kind of hormonal treatment. Some go out of their way 

at all times to dress and speak in a manner more traditional for the sex they identify with than with the sex they were 

born into. Others do so only on occasion or only partially. Not all transgenders are “gay” (in the sense of attracted to 

persons of the same sex they were anatomically born into). Indeed, according to the famed Kinsey Report, only a 

rather small percentage of “transvestites” (i.e. individuals who prefer to dress as the opposite sex at least sometimes) 

are also homosexual. Alfred Kinsey, et al., Sexual Behavior in the Human Female 680 (1953), cited in Trapped in 

Sing Sing at 511. According to a study conducted by UCLA’s Williams Institute and the American Foundation for 

Suicide Prevention, of the over 6000 respondents to the National Transgender Discrimination Survey, 21% identify 

as “Gay/Lesbian/Same-Gender Attraction,” 23% as “Bisexual,” 20% as “Queer,” 21% as “Heterosexual,” 4% as 

“Asexual,” and 11% as “Other.” See Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Suicide Attempts Among 

Transgender and Gender Non-Conforming Adults: Findings of the National Transgender Discrimination Survey 5 

(January 2014). 

35 See Florida House Bill 585, available at

http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0583.docx&DocumentType=Bill&

BillNumber=0583&Session=2015. Contrary to the Human Rights Campaign’s web site, it does not require restroom 

surveillance. Some bills like Massachusetts House Bill 1320, available at

https://legiscan.com/MA/text/H1320/2015, cover both restrooms and athletic programs. Contrary to the Human 

Rights Campaign’s web site, the Massachusetts bill does not criminalize the use of a women’s rest room by an 

anatomical male, but self-identified female. Rather, it simply states that use of such facilities is to be determined by 

one’s anatomical sex rather than one’s gender identity. See infra at n. 43. 
Commissioners’ Rebuttals 141 

strong-armed at least one school into allowing an anatomically intact male student who 

psychologically identifies as female to change in the girls’ locker room.36

S.F. 1543 (Minnesota), for example, states in pertinent part: 

Subd. 2. Female teams; male participation. When an elementary or secondary 

school establishes a team for students of the female sex, students of the male sex 

may not try out for or participate on that team. For purposes of this section, "sex" 

means the physical condition of being male or female, which is genetically 

determined by a person's chromosomes and is identified at birth by a person's 

anatomy.

H.B. 1112 (South Dakota) is similar, but also contains significant differences:

Section 1. The board of directors of the South Dakota High School Activities

Association may not adopt any transgender policy. The sole determinant of a 

student's sexual identity is the sexual identity noted on the student's certificate of 

birth. If no sexual identity is noted on the student's certificate of birth, the sole 

determinant is the sexual identity noted on the South Dakota High School 

Activities Association physical exam form that is completed by a health care 

professional at the student's physical examination. Any transgender policy 

adopted by the board of directors prior to this Act is hereby declared void. 

Note one interesting difference between the bills. The Minnesota bill covers cases in

which “an elementary or secondary school establishes a team for students of the female sex.” 

This might be interpreted to leave schools the authority to establish a team explicitly for females 

and male-to-female transgenders or indeed transgenders of any description. I have no idea if that 

was intended. The South Dakota bill leaves less wiggle room. South Dakota appears to require 

the South Dakota High School Activities Association to define teams by sexual identity as noted 

on the student's certificate of birth rather than some alternative way. In the excruciatingly rare 

circumstance under which an individual’s sex is not noted on his or her birth certificate, the bill 

appears to contemplate that anatomy will control. 

Neither of these can be characterized as “[t]hreats to civil liberties, cloaked as ‘religious 

freedom’ protections bills.” They have nothing to do with religious freedom. They are simply 

an honest effort to deal with the sex/gender issue that has emerged, much to the surprise of many, 

in the last few years. 

 

36 See, e.g., Letter of Peter Kirsanow and Gail Heriot to the Honorable Trent Franks, December 15, 2015 (discussing 

a resolution agreement with an Illinois school district that required a male-to-female transgender student to be 

permitted to change in the girls’ locker room.) 
142 Peaceful Coexistence Report 

These days we are repeatedly told that an individual’s “gender identity” may be different 

from his or her sex. While that individual may have been born with the anatomy of one sex, he or 

she may identify psychologically with the opposite sex or even with some non-binary alternative. 

But, if so, that just raises the question of which sports team such a person should be assigned to. 

It doesn’t answer that question. 

So allow me to pose it again: Should a student with a intact boy’s physical body (sex) but 

who psychologically feels like a girl (gender identity) be assigned to a sports team based on sex or 

on gender identity? 

The supporters of S.F. 1543 and H.B. 1112 apparently believe that physical body (sex) 

should be determinative of athletic team eligibility. There is a lot to be said for that approach. 

We have traditionally separated boys from girls in high school athletics for two reasons. First, 

we do it to ensure that girls, whose average size, strength and speed tends to be a cut below the 

average boy’s, will nevertheless have opportunities for athletic competition. Second, in contact 

sports, we sometimes do it for sexual privacy. 

The best example of why transgendered individuals should play on teams with fellow 

members of their sex rather than members of the sex they psychologically identify with is the 

winner of the decathlon at the 1976 Summer Olympics in Montreal. This is not just a pretty good 

athlete who could have made his varsity football team at his high school, this is the world’s 

greatest athlete of 1976. Bruce Jenner may have felt inside that he was a woman, but his body 

was doing things that no woman’s body has ever done. In 2015, Jenner became openly 

transgender, and now wishes to be known as “Caitlyn.” Fine. But Caitlyn is still 6 feet, two 

inches tall and still weighs nearly 200 pounds, with shoulders, arm length and other relevant 

measurements that are more typical of a man than of a woman. With the exception of modest 

surgery to reduce the appearance of an Adam’s Apple and supplemental estrogen treatments, 

Caitlyn is an intact anatomical male. Caitlyn is also on record as having a sexual orientation more 

typical of males (i.e. a sexual attraction to women, not men).37 Sexual privacy considerations 

 

37 Did you notice that once I got to Caitlyn as opposed to Bruce I stopped using pronouns? Yes, Caitlyn prefers 

feminine pronouns and under other circumstances I might have been more inclined to indulge an individual’s 

preference in these matters. The problem is that a remarkable number of people have started to actually believe that a 

man who dons women’s clothes and undergoes hormone treatment is, in some significant sense, a woman. Still 

others—notably the New York City Commission on Human Rights (“NYCCHR)”—believe it is appropriate to legally 

require employers, landlords and owners of public accommodations “to use an individual’s preferred name, pronoun, 

and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, 

appearance, or the sex indicated on the individual’s identification.” As a result, the intentional or repeated refusal to 

do so can now result in fines as high as $250,000 in New York City. NYCCHR further states: 

“Most individuals and many transgender people use female or male pronouns and titles. Some 

transgender and gender non-conforming people prefer to use pronouns other than he/him/his or 

she/her/hers, such as they/them/theirs or ze/hir.” 

NYC Commission on Human Rights, Legal Enforcement Guidance on the Discrimination on the Basis of Gender 

Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102(23) 4 (Dec. 21, 2015). 
Commissioners’ Rebuttals 143 

would therefore have cut in favor of assigning a young Caitlyn to the boys’ teams in high school 

on both grounds.38

The notion that gender is not binary further complicates the issue. See Anne FaustoSterling, The Five Sexes: Why Male and Female Are Not Enough, The Sciences 20 (March/April 

1993); Darren Rosenblum, Trapped in Sing Sing: Transgendered Prisoners Caught in the Gender 

Binarism, 6 Mich. J. Gender & Law 499, 503 (2000) (“Although most people accept that there are 

two sexes, “male” and “female,” these categories actually contain a myriad of genders, formed 

genetically, biologically, and culturally”). If gender were determinative of sports team eligibility, 

schools would need to field a whole range of teams, rather than just a boys’ and a girls’ team. 

According to the National Transgender Discrimination Survey conducted by UCLA’s

Williams Institute, 31 percent of transgender respondents identified either strongly (10 percent) or

somewhat (21 percent) with the identity “Third Gender.”39 Since no school can float a different 

team for all the gender choices that seem to be in fashion these days, going with sex as

determined at birth may well be the best and most practical rule. See, e.g., Sam Escobar, I’m

Not Male I’m Not Female. Please Don’t Ask Me About My Junk, Esquire (March 31, 2016); Ernie 

Grimm, My Gender is Bunny, San Diego Reader (March 25, 2009). I note that the number of 

high school and middle school transgenders who have received surgery in order to have their 

anatomy appear more like the sex they psychologically identify with is vanishingly small.40

 Voluntarily indulging an individual’s eccentricities can be a good thing, whether those eccentricities are connected to 

the individual’s sex or to some other characteristic. Indeed, such indulgences can add to life’s charm. Cf. William 

Drury, Norton I, Emperor of the United States (1986). Mandating that an employer, landlord or business owner 

address an employee, tenant or customer as if he is something he is not, on pain of a $250,000 fine, is quite another 

thing. And the notion that an employer, landlord or owner of a public accommodation can be forced to use pronouns 

that are alien to the English language like ze/hir is abhorrent. 

Even during the French Revolution’s Reign of Terror, when Robespierre’s Committee on Public Safety banned 

traditional titles like “Madame” and “Monsieur” and required instead the use of “Citoyen” and “Citoyenne” (i.e. 

“Citizen” and “Citizeness”) as titles, no one tried to force new-fangled pronouns on unwilling persons. Proper nouns 

weren’t considered sacred: Robespierre and his compatriots changed the names of the months of the year, the days of 

the week and many other things. But they didn’t just make up pronouns. 

I believe that I have an obligation to refrain from contributing to the confusion, especially given that this is a 

government report. 

38 Buzz Bisinger, Caitlyn Jenner: The Full Story, Vanity Fair, June 25, 2015, available at

http://www.vanityfair.com/hollywood/2015/06/caitlyn-jenner-bruce-cover-annie-leibovitz. 

39 See Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Suicide Attempts Among Transgender and Gender NonConforming Adults: Findings of the National Transgender Discrimination Survey 6 (January 2014). 

40 Note also that different individuals have different onsets of “gender dysphoria,” which complicates the issue yet 

again. In a recent study in Finland, the authors describe both childhood-and adolescent-onset gender dysphoria. See 

Riittakerttu Kaltiala-Heino, Maria Sumia, Marja Työläjärvi & Nina Lindberg, Two Years of Gender Identity Service 

for Minor: Overrepresentation of Natal Girls with Severe Problems in Adolescent Development, 9 Child & 

Adolescent Psych. & Ment. Health 9 (2015). 
144 Peaceful Coexistence Report 

The argument for allowing schools more discretion is somewhat appealing to me. More 

discretion would allow decision makers who are closer to each situation to make these choices. 

Suppose a young boy is physically small, delicate and psychologically identifies as female. As a 

result, he is bullied by the boys. Is it inappropriate for a teacher to allow him to play on the 

middle school girls’ team instead of the boys’ team, when the girls engaged in the competition 

welcome him? I certainly don’t think so. But I also don’t think that state legislation aimed at a 

once-size-fits-all solution constitutes a “backlash” against the LGBT community. 

This is especially so given that these decisions need to be made at the league level, since 

they involve competition and no individual team should be allowed to give itself an advantage in 

this way. Moreover, particularly in today’s political climate, I can see why teachers would prefer 

a hard and fast rule they must follow rather than have to deal with conflicting demands on the 

subject (even if OCR had not already raised the issue). We live in a world in which many issues 

are resolved in favor of those who scream the loudest and most insistently rather than in favor of 

principle, practicality or even majority sentiment. The result—predictably—is a cacophony of 

escalating demands. This in turn leads traditional decision makers (in this case coaches, teachers, 

principals, and school boards) to yearn for an easy answer: My hands are tied; the higher ups 

have commanded me to follow their rules. The result is that there are no counterweights to the 

tendency toward the centralization of power. In this case, when the Department of Education or 

when state legislatures attempt to bind local schools to a “one size fits all rule,” there is less push 

back from the schools than there might otherwise be. The result has been a poisonous 

concentration of power at the center. 

Use of Restrooms: Many of the state legislative bills referred to by Commissioner Achtenberg 

prohibit the use of women’s restrooms set by men (and vice versa).41 They are controversial only 

 

41 Again, the most talked-about such bill has been North Carolina’s H.B. 2, which in addition to the provisions 

discussed supra at n.33, had provisions dealing with restroom assignment. There is no doubt this bill was passed in a 

hurry. Part of the reason for haste stemmed from the City of Charlotte’s strange treatment in its ordinance of 

restrooms in businesses open to the public. The Charlotte ordinance repealed a provision of the Charlotte Code that 

allowed businesses to maintain sex-segregated “[r]estrooms, shower rooms, bathhouses and similar facilities which 

are in their nature distinctly private.” The intent seems to have been to allow transsexuals and perhaps transgenders 

to use the restrooms of their choice rather than the ones intended for members of their biological sex. In doing so, 

the City Council seems to have eliminated the ability of these businesses to maintain separate restrooms for men and 

women at all. This appears to be a case of very poor drafting. 

Under H.B. 2, the maintenance of sex-specific multi- or single-occupancy restrooms and changing facilities by 

businesses open to the public is declared not to constitute illegal sex discrimination. Weirdly, few seem to have 

noticed that such businesses can still choose to designate its restrooms and changing rooms by “gender” rather than 

biological sex if they if what they desire to do. Because North Carolina doesn’t prohibit “gender identity” 

discrimination in the first place, there was no need to declare in H.B. 2 that the maintenance of separate restrooms and 

changing facilities based on gender identity does not constitute illegal gender identity discrimination. 

For the reasons I discussed in the section on Mississippi law above, I do not believe gender-specific as opposed to 

sex-specific restrooms and changing facilities work well in the typical case, since they make it difficult to prevent 

voyeurs and pranksters. But it’s not up to me. Under North Carolina law, business owners are not prevented from 
Commissioners’ Rebuttals 145 

because they group transgenders with their biological/anatomical sex rather than with the sex they 

psychologically identify with—something that would have seemed ordinary and unobjectionable 

a decade or so ago, but which has become anything but uncontroversial. According to the 

Human Rights Campaign web site cited by Commissioner Achtenberg, this is the primary form 

the anti-transgender bills it complains of take.42

It is very unlikely any of these bills would have been drafted in the absence of actions like 

that of OCR in requiring the use of the girls’ locker room for changing by an anatomically intact 

boy who psychologically identifies as a girl or like that of the City of Charlotte’s ordinance.43

I note that such proposals appear to be quite popular.44 Is that because the public is

“motivated by animus” against transgenders? Or that the public is complicit in “thinly-veiled 

attempts to turn back the clock” as Commissioner Achtenberg alleges? I don’t think so. While 

not all of them are well-drafted to accomplish what I believe to be their aim, none strike me as 

anything but honest efforts to deal with an issue. In theory, one can imagine separate restrooms 

based on sex or separate restrooms based on gender. For reasons that most Americans agree with, 

these bills choose sex as the deciding factor. 

South Dakota’s H.B. 1008 is actually quite modest.45 It applies only to public schools. 

The rules applicable to private facilities will continue to be set the way they always have been—

 creating gender-specific facilities. (In other words, the law is back to where it was before the City of Charlotte 

effectively prohibited both sex-specific and gender-specific facilities.) 

By contrast, H.B. 2 does require multi-occupancy restrooms and changing facilities in public schools and 

government offices to be designated by “biological sex, ” defined as “the physical condition of being male or female, 

which is stated on a person’s birth certificate,” rather than gender. Again, I believe there are good and sufficient 

reasons for designating private facilities in this manner (and it is certainly what most people understood the custom to 

have been for as far back as anyone can remember). The tough case is the transsexual—one whose anatomy has been 

altered to better reflect the individual’s preferred status. I note that, unlike Kansas, North Carolina does alter birth 

certificates after surgery of that kind has occurred. 

42 I note that these bills are being proposed to deal with sexual privacy concerns and not religion and thus they are not 

properly part of this report. But since Commission Achtenberg has brought them up, I believe I need to respond. 

43 For the OCR action, see supra at n. 36; for the City of Charlotte’s ordinance, see supra at 41 

44 An effort to repeal a Houston transgender-rights ordinance that was thought to give transgenders the right to use the 

restroom of their choice, rather than the one that corresponds to their actual sex, passed overwhelmingly. Valerie 

Richardson, Houston “Bathroom Bill” Rejected by Voters, Washington Times (Nov. 3, 2015), available at 

http://www.washingtontimes.com/news/2015/nov/3/houston-bathroom-bill-rejected-voters/?page=all. 

45 Some of the other state bills are more far-reaching. In Massachusetts, H.1320 would state in full: 

An Act relative to privacy and safety in public accommodations. Be it enacted by the Senate and House of 

Representatives in General Court assembled, and by the authority of the same, as follows: 

Section 1. Section 7 of chapter 4 of the General Laws, as appearing in the 2012 Official Edition, is 

hereby amended by adding the following clause: 

Fifty-ninth, The meaning of “gender identity” shall be distinct from that of “sex” and “sexual 

orientation.” Access to lawfully, sex segregated facilities, accommodations, resorts, and 
146 Peaceful Coexistence Report 

by the owner/occupier of the property involved—and enforceable in the way they have always 

have been—through criminal and/or civil actions in trespass. H.B. 1008 states in full: 

“FOR AN ACT ENTITLED, An Act to restrict access to certain restrooms and 

locker rooms in public schools. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH 

DAKOTA: 

Section 1. That chapter 13-24 be amended by adding a NEW SECTION to read: 

The term, biological sex, as used in this Act, means the physical condition of being 

male or female as determined by a person's chromosomes and anatomy as 

identified at birth. 

Section 2. That the code be amended by adding a NEW SECTION to read: 

 amusement, as well as educational, athletic, and therapeutic activities and programs, shall be 

controlled by an individual’s anatomical sex of male and female, regardless of that individual’s 

gender identity.” 

https://malegislature.gov/Document/Bill/189/House/H1320.pdf 

As I interpret this bill, it applies to restrooms that are sex-segregated, whether on public or private property. It would 

assign an individual who has had the surgery necessary to change one’s primary sex organs to resemble those of the 

opposite sex to the restrooms reserved for one’s “new” sex. Anatomy, not chromosomes, controls. One question I 

might have is how much room for choice it was intended to have. Suppose the owners of a restaurant heavily 

frequented by transgenders choose to maintain gender-specific rather than sex-specific restrooms. My read of the 

text (without having looked at anything else) is that they could do exactly that, at least provided they mark the 

restrooms clearly. I cannot say whether that was the intent of the drafters, but it certainly might have been. 

Oklahoma’s S.B. 1014 states: 

An Act relating to public health; prohibiting the use of certain facilities under certain 

circumstances; directing promulgation of rules; providing for codification; and providing an 

effective date. 

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: 

Section 1. New Law A new section of the law to be codified in the Oklahoma Statutes as Section 

1-1022 of Title 63, unless there is created a duplication in numbering, reads as follows: 

A. It shall be unlawful for a person to use a gender-specific restroom when that person’s 

biological gender is contrary to that of the gender-specific restroom. 

B. The State Board of Health shall promulgate rules to implement the provisions of this act. 

Section 2. This act shall become effective November 1, 2016. 

http://webserver1.lsb.state.ok.us/cf_pdf/2015-16%20INT/SB/SB1014%20INT.PDF 

The Oklahoma proposal does not make use of the “sex”/“gender” distinction that has entered the vocabulary of late. 

But it gets the point across. Again, I do not believe it rules out the possibility of restrooms that are not “genderspecific.” A private business that believes its customers would prefer restrooms divided in some different way 

presumably is free to do so if it makes it clear to customers that is what it has done. What it does is ensures the user 

of a typical sex-specific restroom that only members of one biological sex are permitted in that restroom. 
Commissioners’ Rebuttals 147 

Every restroom, locker room, and shower room located in a public elementary or 

secondary school that is designated for student use and is accessible by multiple 

students at the same time shall be designated for and used only by students of the 

same biological sex. In addition, any public school student participating in a 

school sponsored activity off school premises which includes being in a state of 

undress in the presence of other students shall use those rooms designated for and 

used only by students of the same biological sex. 

Section 3. That the code be amended by adding a NEW SECTION to read: 

If any student asserts that the student's gender is different from the student's 

biological sex, and if the student's parent or guardian consents to that assertion in 

writing to a public school administrator, or if the student is an adult or an 

emancipated minor and makes the assertion in writing to a public school 

administrator, the student shall be provided with a reasonable accommodation. A 

reasonable accommodation is one that does not impose an undue hardship on a 

school district. A reasonable accommodation may not include the use of student 

restrooms, locker rooms, or shower rooms designated for use by students of the 

opposite biological sex if students of the opposite biological sex are present or 

could be present. A reasonable accommodation may include a single-occupancy

restroom, a unisex restroom, or the controlled use of a restroom, locker room, or 

shower room that is designated for use by faculty. The requirement to provide a 

reasonable accommodation pursuant to this section does not apply to any 

nonpublic school entity.” 

Note that South Dakota’s proposal attempts to deal with the genuine problem of what to do 

with the case of a student whose sex and gender identity do not match up.46 Consider the case of 

the biological/anatomical boy who nevertheless psychologically identifies as a girl. There is a 

long, unfortunate history of other children taunting or bullying such a child. Rightly or wrongly, 

the child may have safety fears. At the same time, allowing such a child to use the girls’ restroom 

 

46 Note that this is not a new problem. It is only a new vocabulary used to describe the problem. Our great, great 

grandparents had to grapple with the problem of the student who didn’t fit other people’s conception of what a 

member of that student’s sex “should” be like. That is not to say that they always dealt with it well or that we should 

necessarily respond in the same way we did. But it is nevertheless useful to remember that we are not the first to 

have to address the issue. 

It is also worth pointing out that, contrary to what some commentators have been suggesting, the pending bills are 

not the first time the use of the wrong restroom has been criminalized. Knowingly walking into the women’s room if 

one is a man or into the men’s room if one is a woman has always been a crime (unless one has reason to believe that 

the owner/occupier has granted permission). It is the crime of trespass. Walking into any part of a building without 

the owner/occupier’s permission is trespass (though an owner/occupier would need to press charges in order for a 

prosecution to take place). If the restroom door has a signed that says “Women,” this is understood to mean that men 

do not have the owner/occupier’s permission to enter. Similarly, if the door says “staff only,” it is understood to 

mean that customers do not have the owner/occupier’s permission to enter. Violators may be prosecuted. 
148 Peaceful Coexistence Report 

or change in the girl’s locker room may raise legitimate issues of sexual privacy for the girls. 

The South Dakota bill attempts to eliminate the possibility that the child is just trying to be a pill 

(yes, some students do that) by requiring the student’s parent to consent to the claim that the 

student’s sex and gender identity don’t match up. In such a case, the school district would be 

required to make a reasonable accommodation for that student, such as a single-occupancy 

restroom, a unisex restroom, but not the use of the restroom designated for the opposite sex. 

Here’s the $64,000 question: Why it is offensive to the Human Rights Campaign to 

classify people by actual sex for restroom assignment, but okay to classify them by gender? 

Consider, for example, the case of an anatomical male who psychologically identifies with

females and prefers the use of female pronouns, but who nevertheless prefers to use the men’s

room. As an anatomical male, should this male who identifies as female be able to use the men’s 

room? Or should all transgenders be required to use the restroom assigned to their gender (rather 

than their anatomical sex)? If the answer is that transgenders should have their choice or 

restrooms, what does that do to the notion of equality? So-called “cisgenders” (i.e. individuals 

who identify psychologically with their actual sex) do not get to choose which restrooms they get 

to use. Why should transgenders have options when cisgenders do not? 

Ultimately, the logic of the movement to allow transgenders the choice to use the

restroom that corresponds to their gender, rather than the restroom that corresponds to their actual 

sex, is that everybody must be given the choice of which restroom to use. If so, that means 

unisex restrooms are the only principled alternative. Everybody gets to choose, which quickly 

collapses into nobody gets to choose, since only one choice will be offered. 

The South Dakota proposal appears to be a common-sense solution to the problem of 

ensuring sexual privacy for all students. The notion that the use of restrooms should be governed 

by one’s gender identity rather than one’s anatomical sex suffers from two problems. First, 

restroom fixtures are designed with anatomy in mind, not with one’s psychological state. A 

female-to-male transgender who has not undergone surgery in an effort to anatomically conform 

to the male physique cannot efficiently make use of the fixtures of the men’s restroom. Second, 

and more important, opening restrooms to individuals based on their gender identity rather than 

actual sex opens up all kinds of issues. Of the over 6000 respondents to the Williams Institute’s 

National Transgender Discrimination Survey, 38 percent identified either strongly (15 percent) or 

somewhat (23 percent) with the identity “Two Spirit.”47 Would that mean that they would be 

entitled to use both restrooms? Would it mean that when they are feeling more feminine, they 

should use the women’s restroom and when they are feeling more masculine, they should use the 

men’s room? The more difficult it is to determine an individual’s eligibility for a particular 

 

47 See Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Suicide Attempts Among Transgender and Gender NonConforming Adults: Findings of the National Transgender Discrimination Survey 6 (January 2014). 
Commissioners’ Rebuttals 149 

restroom at a glance, the more difficult it will be to exclude voyeurs and pranksters.48 If the point 

of opposition to proposals like South Dakota’s is to introduce uncertainty and chaos into public

restrooms, it will work just fine.49

By contrast, the point of South Dakota’s proposal appears to be to protect the 

sexual privacy of as many students as possible, while discouraging pranks and 

voyeurism. That’s a good thing. 

Conversion Therapy: One of the bills mentioned on the Human Rights Campaign web 

site would apparently have authorized therapists to conduct conversion therapy—a method of 

counseling designed to cause individuals who believe or fear they may be gay, lesbian, bisexual or 

 

48 Cf. Jessica Chin, University Of Toronto Gender-Neutral Bathrooms Reduced After Voyeurism Reports, Huffington 

Post (Oct. 6, 2015)(discussing sex-integrated restrooms).

49 Kansas once allowed an individual to change the sex reported on his or her birth certificate either by signing an 

affidavit stating that the sex was incorrectly recorded or by submitting a medical certificate substantiating that a 

physiological or anatomical change occurred. 

The Governor is now moving forward with a policy change that would allow such alterations only if the person signs 

an affidavit attesting that his or her sex was incorrectly indicated in the first place and provides medical records to 

back up that affidavit. This is thought by the Commission majority to be anti-transgender. 

But these are birth certificates, not life-style certificates. Kansas has the right to keep records that accurately reflect 

the facts of a birth. It’s about truth. And truth cannot be pro- or anti-LGBT. It’s just truth. As much as some 

individuals born as males may identify psychologically with females, as much as they may exercise their right to 

adopt female habits and dress, as much as they may undergo surgery and other physiological treatments in order to 

cause their physical bodies to better resemble females ... indeed as much as we might even support them in those 

endeavors, they are not in fact members of the female sex (or vice versa). When every cell in an individual’s body 

contains chromosomes identifying that individual’s sex, Kansas is not required to pretend otherwise in its official 

records, especially not retroactively to birth. For my colleagues to suggest that Kansas is acting unconstitutionally is 

Orwellian. See Statement of Commissioners Gail Heriot and Peter Kirsanow, available at: 

http://www.newamericancivilrightsproject.org/wpcontent/uploads/2016/04/HeriotKirsanowFinalStatementwithAppendix.pdf. 

This is not to say that another state could not choose to record on its birth certificates different information—such as 

what is typically called “gender.” While that individual may have been born into one biological sex, he may identify 

psychologically with the opposite sex (or even with some non-binary alternative) and may adopt its habits and traits. 

In doing so, he demonstrates that his “gender” is not the same as his biological sex. 

But it is not so easy to record “gender” rather than sex, precisely because it is so variable. At birth, only sex is 

revealed. And even after an individual’s gender asserts itself, it can change. Some identify as having “two spirits”; 

others say they are neither male nor female in gender. Given that, it is doubtful a state would be interested in 

recording gender rather than sex on its birth certificates. 

Moreover, it is not clear why anyone should be dismayed by any of this. Note that nothing turns on what one’s birth 

certificate says about one’s sex in Kansas. It does not determine what restroom one can use. It does not determine 

what school athletic teams one can join or what jail cell one should occupy in the event of arrest. Those are questions 

that are left for another day. Nor does it determine whether an individual should be treated with courtesy and 

respect when they have chosen to lead their lives in a transgender manner. That is a question that must be answered 

by each individual American. 

There may well be circumstances, for example, under which transsexuals (those who have had surgery) may wish to 

have some way to identify their status to others. But in Kansas at least birth certificates are not the way to do that. 
150 Peaceful Coexistence Report 

transgender to be heterosexual and cisgender instead. In this case, the web site did provide 

information on the bill, so I was able to find it quickly. It was H.B. 1598 in the Oklahoma 

Legislature, entitled “The Freedom to Obtain Conversion Therapy Act.” Like the sex-specific 

restroom bills referred to in the previous paragraph, this bill is outside the scope of this report in 

that it does not have anything to do with religious liberty. Nevertheless, since Commissioner 

Achtenberg uses it as evidence of a “backlash” against LGBTs, I feel obligated to address it 

briefly. 

It is not quite clear why this proposal was thought necessary. Perhaps there was a fear 

that some state administrative agency or local government would outlaw the treatment or some 

professional association would forbid its members from offering this treatment. In this regard it is 

worth pointing out that several jurisdictions have indeed outlawed conversion therapy for 

minors.50 Note the obvious: These prohibitions apply even in cases where both the minor and the 

minor’s parents would like the minor to have that treatment. It limits people’s options. By 

contrast, the Oklahoma proposal was designed solely to ensure that an option will be available. 

It does not require anyone to take it. 

It’s interesting to compare the laws that prohibit conversion therapy for minors with the 

lack of laws prohibiting minors from obtaining surgery designed to give them the anatomical 

appearance of the opposite sex (This is sometimes referred to a “sex change operation” or “gender 

reassignment surgery.”) Conversion therapy is non-invasive. It is just psychological therapy. 

This kind of surgery on the other hand, literally mutilates the body and is irreversible. Yet in 

Oregon, for example, the age of consent for surgery is 15 (even without parental consent) and 

recently Oregon’s Medicaid program began to cover such surgery.51 If there were really a 

backlash against transgenderism, that would be unthinkable. Just as generals are always fighting 

the last war, political activists are always imagining that yesterday’s powerless minority is still 

powerless. In our own minds, we are all always the underdog. 

 

50 See New Jersey P.L. 2013, Chapter 150, available at https://legiscan.com/NJ/text/A3371/id/884607; Oregon H.B. 

2307, amending ORS 675.070 et seq., available at 

https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/HB2307/Enrolled; D.C. Act 20-530, available 

at http://lims.dccouncil.us/Download/29657/B20-0501-SignedAct.pdf; California 

S.B. 1172, amending Chapter 1 of Division 2 of the Business and Professions Code, available at

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB1172); Illinois Public Act 099-411, 

available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0411). 

51 Anemona Hartocollis, The New Girl in School: Transgender Surgery at 18, N.Y. Times (June 16, 2015). 

Hartocollis further wrote: 

[T]he number of teenagers going through gender reassignment has been growing amid wider acceptance of 

transgender identity, more parental comfort with the treatment and the emergence of a number of willing 

practitioners. Now advocates like Empire State Pride Agenda are fighting for coverage at an earlier age, beginning 

with hormone blockers at the onset of puberty, saying it is more seamless for a teenage boy to transition to becoming 

an adult woman, for example, if he does not first become a full-bodied man. 
Commissioners’ Rebuttals 151 

The First Amendment Defense Act: Commissioner Achtenberg also criticizes the First 

Amendment Defense Act (“FADA”). I agree with many of the criticisms that are made by the

authorities cited in her Statement. But since those authorities published their commentary, 

FADA has undergone an additional draft. Many of the problems have already been corrected. 

If passed, FADA would essentially prohibit the federal government from penalizing 

persons on account of their support of the exclusivity of traditional opposite-sex marriage. Its 

operative clause (Section 3) would state: 

“Notwithstanding any other provision of law, the Federal Government shall not 

take any discriminatory action against a person, wholly or partially on the basis 

that such person believes, speaks, or acts in accordance with a sincerely held 

religious belief or moral conviction that marriage is or should be recognized as the 

union of one man and one woman, or that sexual relations are properly reserved to 

such a marriage.” 

FADA was thought to be appropriate by its supporters on account of a statement by the 

Solicitor General during oral argument in Obergefell v. Hodges. When asked whether religious 

schools that maintain an opposition to same-sex marriage could, for that reason, lose their taxexempt status, he candidly replied, “[I]t’s certainly going to be an issue.”52 Both the Solicitor 

General and the Justices were thoroughly familiar with Bob Jones University v. United States, 461 

U.S. 574 (1983), a case in which the Supreme Court had upheld the authority of the Internal 

Revenue Service to revoke the tax-exempt status of a university that engages in race 

discrimination. 

Objections were raised (rightly in my view) that such a law should not apply to a 

government official or employee whose job it is to issue marriage licenses or whose job it is to 

review tax returns and determine whether taxpayers have correctly listed their filing status. As a 

result, a new draft of FADA was produced that exempted Federal employees acting within the 

scope of their employment” from its coverage. Section 6(3)(B).53

 

52 Harvard law professor Mary Anne Glendon predicted in 2004 that if same-sex marriage became law, the United 

States would follow the European experience in becoming intolerant towards those who opposed the change in law. 

"As much as one may wish to live and let live," Glendon wrote during the same-sex marriage debate in 

Massachusetts, "the experience in other countries reveals that once these arrangements become law, there will be no 

live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and 

diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . 

Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax 

will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with 

lawsuits if they refuse to compromise their principles." Mary Ann Glendon, For Better or Worse?, Wall St. J. (Feb. 

25, 2004). 

53 See, e.g., Walter Olson, Gay Marriage and Religious Rights: Say Nada to FADA, Newsweek (Sept. 10, 2015).
152 Peaceful Coexistence Report 

Another set of objections were raised (again, rightly in my view) that in awarding certain 

privileges, such as ambassadorships, the President should be able to consider all aspects of an 

individual’s values, character and political or social views. In response, the new draft limited the 

scope of FADA’s definition of “discriminatory action.” Section 3(b). 

A third set of objections (mostly correct in my view) were aimed at the fact that a wide set 

of “persons” arguably would be covered by the proposed Act. The new draft specifically 

exempted publicly traded for-profit entities, federal for-profit contractors, acting within the scope 

of their contracts, and medical facilities and nursing homes with respect to visitation and 

recognition of a designated representative for the purpose of healthcare decision making. 

There may be other rough spots in the proposal that need smoothing. Contrary to 

popular belief, the drafting of a statute that does what you want it to do (and not what you don’t 

want it to do) requires skill, experience, imagination and a willingness to go through many drafts. 

There is one more objection that has been repeatedly made and is not been dealt with in 

the new draft—the fact that FADA protects only those who oppose same-sex marriage; it does not 

protect those who support it. It is therefore not “content neutral” to use the terms favored by First 

Amendment scholars. 

It’s easy to see reasons why the sponsors of FADA might not even think to include

protections for supporters of same-sex marriage: The supporters were the victors. Obergefell v. 

Hodges guarantees the fundamental right to marry for same-sex couples. No one has called for 

institutions that support same-sex marriage to lose their tax-exempt status. Members of Congress, 

almost certainly rightly, believe that there is a danger of retaliation against opponents of same-sex 

marriage, but there is no equivalent danger in the other direction. 

Should the Constitution be construed to forbid FADA’s one-way protection? My instinct 

is no. There are two categories of cases that have come up repeatedly over time—efforts to 

suppress or ban speech and efforts to channel speech through time, place and manner regulation. 

While it is not always easy to tell them apart, in the former case, it shouldn’t matter if Congress 

attempted to suppress just expressions of opposition to same-sex marriage or both expressions of 

opposition and support (i.e. all discussion) of same-sex marriage. Either approach would clearly 

violate the First Amendment. On the other hand, when it comes to regulation of time, place and 

manner, a lack of content neutrality can be a sign of nefarious purpose. If Congress bans posters 

in opposition to same-sex marriage on the Washington Metro system, citing their political nature, 

but does not ban posters in support of same-sex marriage, that is obviously a problem. 

FADA is neither of those things. It is a declaration that it will not penalize those who

have views in opposition to what has been national policy since Obergefell. A declaration that it 

will not penalize those who agree with national policy seems a bit unnecessary. If that turns out 

to be untrue—i.e. if someone is punished for agreeing with the national policy toward same-sex 

marriage—it seems to me they are better off if FADA were law. They could argue the both sides 
Commissioners’ Rebuttals 153 

of the same-sex marriage debate must be treated alike, and so if opponents of same-sex marriage 

are protected from retaliation, they must be protected from retaliation too. 

Under the circumstances, I can’t understand those who would vote against FADA on the 

ground that it is one-sided. Passing FADA would eliminate retaliation of one kind and increase 

that likelihood that a court would rule against retaliation of the other kind (if it were to occur). 

Without FADA, no one is protected. 

One the other hand, I have not yet heard any argument for why supporters of FADA 

should not be willing to protect supporters as well as opponents of same-sex marriage. When 

Edmund Burke argued for magnanimity in politics, he wasn’t only speaking to the victors.
[This page intentionally left blank] 
Commissioners’ Rebuttals 155 

Commissioners Achtenberg, Castro, Kladney, Narasaki, and Yaki Rebuttal 

I. A new wave of laws is being proposed to limit the freedoms of lesbian, gay, bisexual, 

and transgender people. 

In recent months, there has been nothing short of a tsunami of legislative proposals, the purpose 

of which is to eviscerate the civil rights of lesbian, gay, bisexual, and transgender (“LGBT”) 

persons - using “religious liberties” as the alleged justification. As of this writing, more than 100 

anti-LGBT bills have been or are being considered in twenty-two states.1 In late March and 

early April alone, both Mississippi2 and North Carolina3 enacted statutes that condone LGBT 

employment discrimination, restrict access of LGBT persons to public accommodations and 

services, and proscribe restroom use when an individual’s gender identity conflicts with the sex 

assigned to him or her at birth.4

 

1

 “Anti-LGBT Religious Exemption Legislation Across the Country,” American Civil Liberties Union, available at 

https://www.aclu.org/anti-lgbt-religious-exemption-legislation-across-country?redirect=anti-lgbt-religious-refusalslegislation-across-country#2016; see also “Everything You Need to Know About the Wave of 100+ Anti-LGBT Bills 

Pending in States,” The Huffington Post, April 15, 2016, available at http://www.huffingtonpost.com/entry/lgbt-statebills-discrimination_us_570ff4f2e4b0060ccda2a7a9. 

2

 “Mississippi Governor Signs Law Allowing Businesses to Refuse Service to Gay People,” The Washington Post, 

April 5, 2016, available at https://www.washingtonpost.com/news/post-nation/wp/2016/04/05/mississippi-governorsigns-law-allowing-business-to-refuse-service-to-gay-people/. For the text of the law, see “House Bill NO. 1523,” 

Mississippi Legislature, Regular Session 2016, available at

http://billstatus.ls.state.ms.us/documents/2016/pdf/HB/1500-1599/HB1523SG.pdf. 

3

 “North Carolina Governor Signs Controversial Transgender Bill,” CNN, March 24, 2016, available at 

http://www.cnn.com/2016/03/23/politics/north-carolina-gender-bathrooms-bill/.

In addition to addressing LGBT issues, this law “supercede[s] and preclude[s]” the ability of jurisdictions within the 

state from raising the minimum wage for workers. 

“House Bill 2: An Act to Provide for Single-Sex Multiple Occupancy Bathroom and Changing Facilities in Schools 

and Public Agencies And to Create Statewide Consistency in Regulation of Employment and Public 

Accommodations,” March 23, 2016, available at http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v1.pdf. 

4

 “Transgender” is defined as “being a person ... who identifies with or expresses a gender identity that differs from 

the one which corresponds to the person's sex at birth.” Merriam-Webster, available at http://www.merriamwebster.com/dictionary/transgender. 

“Gender identity” is defined as “the totality of physical and behavioral traits that are designated by a culture as 

masculine or feminine [or] a person's internal sense of being male, female, some combination of male and female, or 

neither male or female.” Merriam-Webster, available at http://www.merriamwebster.com/medical/gender%20identity. 

Gender identity is also understood as a circumstance involving “[o]ne's internal, deeply held sense of one's gender. 

For transgender people, their own internal gender identity does not match the sex they were assigned at birth. Most 

people have a gender identity of man or woman (or boy or girl). For some people, their gender identity does not fit 

neatly into one of those two choices. Unlike gender expression ... gender identity is not visible to others.” GLAAD 

Media Reference Guide - Transgender Issues,” available at http://www.glaad.org/reference/transgender. 
156 Peaceful Coexistence Report 

The North Carolina legislature considered the cause of limiting LGBT civil rights to be so urgent 

that it convened its first special session in thirty-five years and adopted a bill pre-empting a 

Charlotte ordinance which would have outlawed LGBT discrimination.5

 Also included in that 

bill was a shameful provision, specifically designed to restrict bathroom use by transgender 

persons. The legislature’s deliberations took a total of twelve hours, from start to finish.6

 The 

governor signed the bill in the dead of night.7 Corporate leaders, chambers of commerce, and 

 

5

 “An Ordinance Amending Chapter 2 of the Charlotte City Code Entitled ‘Administration’” [sic] Chapter 12 Entitled 

Human Relations”, [sic], and Chapter 22 Entitled “Vehicles for Hire,” available at 

http://charmeck.org/city/charlotte/CityClerk/Documents/NDOrdinance.pdf. For a transcript of diverse and 

compelling public comments preceding the Charlotte Council’s vote on its anti-discrimination ordinance, see “Item 

No. 12: Non-Discrimination Ordinance,” Business Meeting Minute Book 140, Feb. 22, 2016, pp. 13 - 43, available at 

http://charmeck.org/city/charlotte/CityClerk/Minutes/February%2022,%202016.pdf#search=antidiscrimination%20or

dinance. 

6

 As recorded: 

What happened in North Carolina could prove to be the deadly recipe that helps ... other 

discriminatory bills actually make it across the finish line. Indeed, the rushed special session was a 

perfect recipe for avoiding all of the various resistance that has held back these bills from even 

being considered in previous years. 

For example, the bill’s language was only made public mere minutes before it was considered. 

The committee first tasked with voting on it had to request to even have five minutes to read it. 

There was only a total of 30 minutes of public comment, meaning there was basically no 

opportunity for public input. (Polling showed that there was bipartisan opposition across the state 

to overturning Charlotte’s ordinance.). 

This meant that transgender people did not have the notice or option of traveling to the capitol to 

share their stories. Businesses had no opportunity to chime in about the economic impact on the 

state. Though companies like Dow Chemical, Biogen, and Red Hat software tweeted their 

opposition during the day, it was too little too late. In short, the anti-transgender motives of the 

lawmakers eager to pass this legislation did not have to pass through any filters before it became 

law. 

“How North Carolina Become the Most Anti-LGBT State in Less Than A Day,” ThinkProgress, March 24, 2016, 

available at http://thinkprogress.org/lgbt/2016/03/24/3763023/north-carolina-anti-lgbt/. 

See also “North Carolina Passes Law Blocking Measures to Protect LGBT People,” National Public Radio, March 24, 

2016, available at http://www.npr.org/sections/thetwo-way/2016/03/24/471700323/north-carolina-passes-lawblocking-measures-to-protect-lgbt-people and “BREAKING: North Carolina Gov. Pat McCrory to Sign Anti-LGBT 

Bill Immediately: Sweepingly Broad Legislation Voiding All LGBT Nondiscrimination Ordinances About to Become 

Law,” The New Civil Rights Movement, available at 

http://www.thenewcivilrightsmovement.com/davidbadash/breaking_north_carolina_gov_pat_mccrory_to_sign_anti_l

gbt_bill_immediately.

State legislatures passed, but governors vetoed, similar laws in Georgia and Virginia. See, e.g., “Georgia Governor 

Vetoes Religious Freedom Bill Criticized as Anti-Gay,” The Washington Post, March 28, 2016, available at 

https://www.washingtonpost.com/news/post-nation/wp/2016/03/28/georgia-governor-to-veto-religious-freedom-billcriticized-as-anti-gay/, and “Virginia Governor Vetoes Anti-LGBT ‘Religious Freedom’ Bill,” The Huffington Post, 

March 30, 2016, available at http://www.huffingtonpost.com/entry/virginia-lgbt-religious-freedom-billveto_us_56fc05cde4b0a06d58046049. 

7 See, e.g., “McCrory Signs Bill Overturning Transgender Ordinance,” ABC Eyewitness News, March 23, 2016, 

available at http://abc11.com/news/mccrory-signs-bill-overturning-transgender-ordinance/1258961/. 
Commissioners’ Rebuttals 157 

local businesses protested.8 Some withdrew expansion plans.9 Others threatened to move out of 

North Carolina, altogether.10 The National Football League and the National Basketball 

Association (“NBA”) registered concern. In fact, the NBA threatened to move its All-Star Game 

from North Carolina if the governor and the legislature do not reverse course.11

There is even international concern being voiced. Great Britain has issued “an advisory warning 

travelers to be aware of controversial new laws in North Carolina and Mississippi,”12 cautioning 

that “LGBT travellers may be affected by legislation recently passed in the states of North 

Carolina and Mississippi.”13

The North Carolina and Mississippi laws allow state and private actors to discriminate freely 

against LGBT people in a variety of private commercial settings including employment and 

public accommodations. One of the most dangerous provisions of the North Carolina law 

requires transgender people to use restrooms for the sex designated on their birth certificates 

rather than the sex with which they identify. There are no known, reported problems with 

transgender people using restrooms befitting their gender identities in the entire United States. 

The bathroom provision in this law is designed to garner public attention, create antipathy 

toward - and fear of - transgender people, and appease a political base that wants to see LGBT 

rights dealt a blow. 

 

8 See, e.g., “Anti-Gay Laws Bring Backlash in Mississippi and North Carolina,” The New York Times, April 5, 2016; 

“Companies Reconsidering North Carolina Over LGBT Rights,” The Chicago Tribune, April 1, 2016, available at

http://www.chicagotribune.com/business/ct-north-carolina-lgbt-law-20160401-story.html; and “National Gay & 

Lesbian Chamber of Commerce Condemns the Shameful State-Sanctioned Discrimination Law Passed in North 

Carolina,” WBTV.com, March 25, 2016, available at http://www.wbtv.com/story/31566213/national-gay-lesbianchamber-of-commerce-condemns-the-shameful-state-sanctioned-discrimination-law-passed-in-north-carolina. 

9 See, e.g., “As PayPal Cancels Expansion, the Consequences of N.C.’s anti-LGBT Law Get Real,” Los Angeles 

Times, April 25, 2015, available at http://www.latimes.com/business/hiltzik/la-fi-hiltzik-paypal-nc-20160405-snaphtmlstory.html; and “Deutsche Bank Halts North Carolina Growth Plan Over Anti-Gay Law,” Bloomberg, April 12, 

2016, available at http://www.bloomberg.com/news/articles/2016-04-12/deutsche-bank-halts-north-carolina-growthplan-over-anti-gay-law. 

10 See, e.g., “TV, Movie Production Companies to Leave NC Over LGBT Law,” FOX8, April 1, 2016, available at

http://myfox8.com/2016/04/01/tv-movie-production-companies-to-leave-nc-over-lgbt-law/. 

11 See, e.g., “North Carolina Anti-Gay Law May Jeopardize 2017 NBA All-Star Game,” USA Today, March 25, 

2016, available at http://www.usatoday.com/story/sports/nba/2016/03/24/north-carolina-anti-gay-law-mayjeopardize-2017-nba-all-star-game/82234488/; and “NBA Commish: ‘Necessary’ to Change Bathroom Law to Hold 

All-Star Game in Charlotte,” Breitbart, April 25, 2015, available at 

http://www.breitbart.com/sports/2016/04/23/commissioner-adam-silver-necessary-nc-change-bathroom-laws-nbahold-2017-star-game-charlotte/. 

12 “Britain Issues Warning for LGBT Travelers Visiting North Carolina and Mississippi,” The Washington Post, April 

20, 2016, available at https://www.washingtonpost.com/news/worldviews/wp/2016/04/20/britain-issues-warning-forlgbt-travelers-visiting-north-carolina-and-mississippi/. 

13 “Foreign Travel Advice, USA: Local Laws and Customs,” GOV.UK, available at https://www.gov.uk/foreigntravel-advice/usa/local-laws-and-customs. 
158 Peaceful Coexistence Report 

The bathroom restriction is a deep affront to the dignity of transgender people - and even more 

critically, a threat to their physical safety. The U.S. Commission on Civil Rights noted this 

concern in its April 18, 2016 statement condemning these laws.14 A transgender woman forced 

to use a men’s restroom certainly risks verbal harassment at a minimum and physical or sexual 

assault at worst. A transgender man in a women’s restroom may not fare well, either. 

Further, there is a related, serious, negative impact on transgender people’s mental health, as 

well. Recent research “indicates that the denial of access to [bathrooms] had a significant 

relationship to suicidality.”15 Trans Lifeline, a suicide prevention hotline serving transgender 

people, reports that incoming calls have “’nearly doubled’ since North Carolina restricted use of 

public bathrooms based on birth certificate gender markers.”16 The North Carolina law stands to 

worsen the situation by allowing doctors and mental health professionals to withhold treatment 

on the basis of sexual orientation or gender identity of the person in need. This provision was 

hastily enacted, even though it appears to run afoul of the Affordable Care Act,17 Medicaid,18 and 

the Emergency Medical Treatment and Labor Act.19

 

14 “The U.S. Commission on Civil Rights Statement Condemning Recent State Laws and Pending Proposals 

Targeting the Lesbian, Gay, Bisexual, and Transgender Community,” U.S. Commission on Civil Rights, April 18, 

2016, available at http://www.usccr.gov/press/2016/PR_Statement_LGBTDiscrimination.pdf. 

15 Seelman, Kristie L., “Transgender Adults’ Access to College Bathrooms and Housing and the Relationship to 

Suicidality,” Journal of Homosexuality, Feb. 25, 2016, available at

http://www.tandfonline.com/doi/pdf/10.1080/00918369.2016.1157998. 

16 “After North Carolina’s Law, Trans Suicide Hotline Calls Double,” The Daily Beast, April 20, 2016, available at

http://www.thedailybeast.com/articles/2016/04/20/after-north-carolina-s-law-trans-suicide-hotline-calls-double.html. 

17 Patient Protection and Affordable Care Act, 42 U.S.C. sec. 18001 et seq. (2010). 

18 Social Security Act, Title XIX, 42 U.S.C. sec. 1900 et seq. (as amended 1965). 

19 Emergency Medical Treatment and Labor Act, 42 USC sec. 1395dd (as amended 2008). 

“Religious freedom” laws may create special problems for LGBT medical patients: 

LGBT exemptions, though, could have a fatal flaw: They may conflict with federal law. The Affordable 

Care Act prohibits sex discrimination in any program or facility that gets federal funding for health-care 

services, which includes Medicaid. ... The Department of Health and Human Services interprets genderidentity discrimination as part of sex discrimination and has enforced the rule with that in mind, initiating a 

number of investigations into complaints against medical providers related to harassment of and lack of 

coverage for trans people. That interpretation is not expressly written in the law, though. And 

discrimination on the basis of sexual orientation is not currently banned for all doctors and health-care 

providers; a proposed update to federal guidelines on that topic is pending. ... 

Compared to new laws that would protect wedding-related businesses, though, medical professionals have 

a lot more power over the people they provide services to. “When we’re talking about doctors or 

counselors, we are talking about people who are much closer to the patients, in situations that are much 

more intimate and private and confidential,” said Elizabeth Sepper, an associate law professor at 

Washington University in St. Louis. “The harm of discriminatory denial in those circumstances can be 

really severe in that one makes oneself vulnerable to one’s doctor or one’s counselor in a way that you 

might not when you’re coming into a bakery.” 
Commissioners’ Rebuttals 159 

At least some in law enforcement understand the enforceability and constitutional issues at play 

here. Sheriff Leon Lott of Richland County, South Carolina has voiced his objection to an antitransgender “bathroom bill” being considered in his state. 

Lott says the bill is “unnecessary and unenforceable” and would expose his 

department to costly litigation. 

“In the 41 years I have been in law enforcement in South Carolina,” Lott writes, 

“I have never heard of a transgender person attacking or otherwise bothering 

someone in a restroom. This is a non-issue.” 

Lott says to be enforced, a law enforcement officer would have to determine the 

sex of every person entering a restroom in the state. The sheriff also says the bill 

would raise due process and Fourth Amendment issues.20

Whether or not the North Carolina law, and similar ones which may be enacted, will survive 

judicial scrutiny will be determined in time.21 It bodes well that the U.S. Court of Appeals for 

the Fourth Circuit, under the jurisdiction of which North Carolina is situated, ruled on April 19, 

2016 that a transgender male public school student could sue his school district for the freedom 

to use restrooms designated for males.22 The Court agreed with the teen that the U.S. 

Department of Education may interpret sex discrimination under Title IX to allow a transgender 

student to choose the bathroom which fits his or her gender identity rather than sex assigned at 

birth. 

 “When Doctors Refuse to Treat LGBT Patients,” The Atlantic, April 19, 2016, available at 

http://www.theatlantic.com/health/archive/2016/04/medical-religious-exemptions-doctors-therapists-mississippitennessee/478797/. 

20 “Sheriff Leon Lott: Sen. Lee Bright’s Bathroom bill “Unnecessary, Unenforceable,” WISTV.com, April 13, 2016, 

available at http://www.wistv.com/story/31707515/richland-sheriff-bathroom-bill-unnecessary-and-unenforceable; 

see also “Transgender Bathroom Hysteria, Cont’d.,” The New York Times, April 18, 2016, available at

http://www.nytimes.com/2016/04/18/opinion/transgender-bathroom-hysteria-contd.html. 

21 The American Civil Liberties Union has already sued the state of North Carolina in U.S. District Court. The 

Complaint for Declaratory and Injunctive Relief in Carcano v. McCrory, No. 1:16-cv-236, filled March 28, 2016 in 

the U.S. District Court for the Middle District of North Carolina , is available at 

https://www.aclu.org/sites/default/files/field_document/dkt_1_-_carcano_v._mccrory_complaint.pdf. 

22 G.G. v. Glouchester County School Board, United States Court of Appeals for the Fourth Circuit, No. 15-2056, 

April 19, 2016, available at http://apps.washingtonpost.com/g/documents/local/court-opinion-4th-circuit-sides-withtransgender-high-school-student-suing-school-board-for-access-to-boys-bathroom/1960/. See also “What a Federal 

Appeals Court’s Ruling Could Mean for North Carolina’s Bathroom Law,” The Washington Post, April 20, 2016, 

available at https://www.washingtonpost.com/news/post-nation/wp/2016/04/20/what-a-federal-appeals-courts-rulingcould-mean-for-north-carolinas-bathroom-law/. 
160 Peaceful Coexistence Report 

II. These laws and proposals represent an orchestrated, nationwide effort by extremists 

to promote bigotry, cloaked in the mantle of “religious freedom.” 

The current spate of anti-LGBT laws is not the result of a spontaneous, populist revolt. It is a 

carefully-planned strategy, being undertaken to punish LGBT people for having the temerity to 

pursue equality and prevailing in the U.S. Supreme Court.23

Liberty Counsel, which calls itself a Christian ministry and litigation agency,24 but which the 

Southern Poverty Law Center defines as a hate group,25 is spearheading this assault on LGBT 

dignity, safety, and rights in at least twenty states. It is no secret that this effort is in retaliation 

for the pursuit of equality. The leader of Liberty Counsel, Mat Staver, has stated bluntly, "The 

Supreme Court in the 5-4 opinion on marriage in 2015 lit the house on fire. ... All we're trying to 

do is control the fire at this point in time."26

Fighting LGBT equality under the law provides Liberty Counsel its bread and butter. Staver is 

reknown for his inflammatory rhetoric. For example, he states that 

[The marriage fight] is the thing that revolutions literally are made of. This would 

be more devastating to our freedom, to our religious freedom, to the rights of 

pastors and their duty to be able to speak and to Christians around the country, 

than anything that the revolutionaries during the American Revolution even 

dreamed of facing. This would be the thing that revolutions are made of. This 

could split the country right in two. This could cause another civil war.”27

Staver also urges civil disobedience in one of the most offensive, incendiary ways possible; by 

claiming that Christians opposed to marriage equality are akin to persons of conscience facing 

the Nazi regime: 

 

23 See, e.g., United States v. Windsor, 133 S.Ct. 2675 (2013); and Obergefell v. Hodges, 135 S.Ct. 2584 (2015). 

24 “Advancing the Mission Through Three Pillars of Ministry,” Liberty Counsel, available at https://lc.org/aboutliberty-counsel. 

25 See, e.g., “Liberty Counsel: Extremist Group Info,” Southern Poverty Law Center, available at 

https://www.splcenter.org/fighting-hate/extremist-files/group/liberty-counsel; and “SPLC Adds Seven New 

Organizations to Anti-Gay Hate Group List,” Truth Wins Out, Feb. 28, 2014, available at 

https://www.truthwinsout.org/news/2014/02/39681/. 

26 “Who’s Behind the New LGBT Bathroom Laws?,” CBS Evening News, April 13, 2016, available at

http://www.cbsnews.com/news/whos-behind-the-new-lgbt-bathroom-laws/. 

27 “Liberty Counsel Continues Penchant for Inciting ‘Revolution,’” Good As You, April 14, 2014, available at

http://www.goodasyou.org/good_as_you/2014/04/liberty-counsel-continues-penchant-for-inciting-revolution.html. 
Commissioners’ Rebuttals 161 

as a believer, you cannot obey something that is contrary to God's law. And we 

would easily say, well, what would happen if the government forced you turn 

over a Jew in Nazi Germany? All of us would say we wouldn't do that, we 

wouldn't listen to that. Well, we're about ready to walk into the moment."28

Having lost the war on marriage equality, Liberty Counsel and its cohorts are seeking to move 

the battle against LGBT equality from marriage clerks’ offices into bathrooms. Unfortunately, 

groups like Liberty Counsel are not working in a vacuum. They would appear to have the tacit 

support of some national political figures as well as a major political party.29

III. There is no justification for these laws and proposals. They are pretextual attempts to 

justify naked animus against lesbian, gay, bisexual, and transgender people. 

These laws and proposals have nothing to do with “sincerely held religious beliefs.” Rather, 

they are put forward by those who evince a startling animus toward LGBT people. For example, 

Steve Crampton of Liberty Counsel has stated 

When you consider that the life of the average homosexual is not controlled by 

reason, not controlled by the will, it’s really a life controlled by this lust, this 

passion, that has kind of overwhelmed them, and so you have kind of the essence 

of a lack of self control.30

Matt Barber, also of Liberty Counsel, opines that “homosexuality - is always and forever, 

 

28 “Mat Staver Will Disobey a SCOTUS Marriage Equality Ruling Just as He’d Refuse to Turn a Jew Over to The 

Nazis,” Right Wing Watch, March 13, 2015, available at http://www.rightwingwatch.org/content/mat-staver-willdisobey-scotus-marriage-equality-ruling-just-hed-refuse-turn-jew-over-nazis. 

29 The Republican National Committee’s “Resolution Condemning Governmental Overreach Regarding Title IX 

Policies in Public Schools” states that 

A person’s sex is defined as the physical condition of being male or female, which is determined 

at conception, identified at birth by a person’s anatomy, recorded on their official birth certificate, 

and can be confirmed by DNA testing” and that “[t]ransgender policies deal with students who 

choose to be designated by their desired gender identity; an identity that conflicts with their 

anatomical sex.... 

“Resolution Condemning Governmental Overreach Regarding Title IX Policies in Public Schools,” Republican 

National Committee Counsel’s Office, (undated), available at https://prod-static-ngoppbl.s3.amazonaws.com/media/documents/Resolution_Title_IX%20_Overreach.pdf. 

Specifically, “[t]he Republican National Committee encourages state legislatures to enact laws that protect student 

privacy and limit the use of restrooms, locker rooms and similar facilities to members of the sex to whom the facility 

is designated.” 

Id. 

30 “Liberty Counsel Extremist Group Info,” Southern Poverty Law Center, supra note 28. 
162 Peaceful Coexistence Report 

objectively and demonstrably wrong. It is never good, natural, right or praiseworthy.”31

The articulated rationales for the current crop of bills also demonstrate open anti-transgender 

bigotry. When South Carolina State Senator Lee Bright introduced a North Carolina-style 

“bathroom bill” on April 6, 2016, he stated that 

I've about had enough of this. I mean, years ago we kept talking about tolerance, 

tolerance, and tolerance, and now they want men who claim to be women to be 

able to go into bathrooms with children. And you got corporations who say this is 

okay. 32 

Certainly, not all religious authorities or adherents agree that religion makes the adoption of 

these discriminatory laws an imperative. To the contrary, many people of faith actively oppose 

such laws. For example, Episcopal Bishop Brian R. Seage implored Mississippi’s governor to 

veto his state’s anti-LGBT legislation, writing 

Our baptismal covenant requires that each of us will respect the dignity of every 

human being. It does not provide an exception to that respect. 

The Episcopal Diocese of Mississippi stands as one with our brothers and sisters 

in the LGBT community .... We respect their painful journey as they have sought 

full inclusion in our society. Many of them share a Christian faith that is deep and 

profound. We should embrace their quest for equality and justice rather than 

placing obstacles in their pathway. 

I am aware that some Christian bodies say this legislation is needed. I disagree. 

It addresses a conflict which does not exist. The Episcopal Church embraces all 

persons who seek to follow our Lord, and we honor all persons who yearn for 

equality in this society. Our doors remain open to all God’s children.33

Legislators, obviously, are free to hold any religious views of their choosing. What they cannot 

do is enact discriminatory secular laws based upon those beliefs. No religion, including the 

“orthodox Christianity” to which Commissioner Kirsanow refers repeatedly in his statement, is 

 

31 Id. 

32 “Sen. Lee Bright Introduces ‘Bathroom Bill” to SC Senate,” WISTV.com, April 6, 2016, available at 

http://www.wistv.com/story/31659358/sen-lee-bright-introduces-bathroom-bill-to-state-senate. 

33 “Statement by the Rt. Rev. Brian R. Seage, Bishop of the Episcopal Diocese of Mississippi: HB 1523 Press Release 

033116 - In Light of Senate Passage,” Episcopal Café, March 31, 2016, available at

http://www.episcopalcafe.com/brian-r-seage-bishop-of-the-episcopal-diocese-of-mississippi-on-hb-1523/. 
Commissioners’ Rebuttals 163 

the official religion of the United States. No religion can be. The First Amendment makes this 

clear. We all know this. 

Photographers, florists, and bakers who follow any religion - or none at all - can refuse to 

sanctify a wedding in their hearts. What conservative religious adherents cannot do, however, is 

to discriminate in the stream of commerce based upon religious beliefs. Even when religious 

beliefs, sincere or otherwise, dictate thoughts, secular law controls actions. 

Providing commercial goods and services does not require that one “blesses” an event. Taking 

pictures is not “testifying” to one’s spiritual endorsement of a legally recognized ceremony. 

Frosting a cake is not “helping to celebrate something ... believe[d] to be a transgression of 

divine law.”34 Selling flowers is not “contribut[ing] to” a marriage celebration.35 Those are 

secular, commercial quid pro quo transactions; straightforward exchanges of products or services 

for money. 

To claim otherwise simply is to try to darken the smokescreen that “religious beliefs” provide for 

anti-LGBT animus. Would this country, at this juncture in our evolution, support the right of a 

baker to refuse wedding services to an interracial, heterosexual couple based upon a “sincerely 

held religious belief” against miscegenation? Would our society condone a white photographer’s 

refusal to take commemorative pictures of an African American doctoral student’s graduation 

ceremony due to religious beliefs of racial superiority? Clearly not. 

Would society view similar denials to LGBT people as “’dignitary harm’ that is not alleviated 

even if one can easily obtain identical services elsewhere” that U.S. Equal Employment 

Opportunity Commissioner Chai Feldblum describes LGBT people as suffering?36 Clearly. 

IV. There must be no rush to judgment when it comes to this flood of bills. 

The North Carolina statute embodies a number of evils. It outlaws employment protections for 

LGBT people. It deprives people of access to public accommodations based upon specious 

claims of religious liberty. It denigrates transgender people, and jeopardizes their physical and 

mental health. It was adopted and signed in haste. Given the reverberations, there may be some 

North Carolina decision-makers already having second thoughts. 

The Missouri statute is equally heinous. In the more than twenty states with 100-plus bills 

outstanding, the range of discriminatory proposals aimed at LGBT people is broad and deep. 

 

34 “Statement of Commissioner Peter Kirsanow,” USCCR Report, 2016, supra at 62. 

35 Id. at 98. 

36 Id. at 99. 
164 Peaceful Coexistence Report 

The threats to employment protections, public accommodations, and transgender safety are clear 

and present. And the efforts to legalize such discrimination are coordinated. In particular, the 

“bathroom bills” are a solution in search of a problem.37

Professor Tobias Barrington Wolff of the University of Pennsylvania Law School offers this 

critique: 

Proponents of these “bathroom bills” often talk about protecting children. The 

lieutenant governor of North Carolina released a video to justify that state’s 

terrible new law in which he repeated the hysterical claim that policies that treat 

trans people respectfully would help “sex offenders and pedophiles” prey on 

“women and children.” This is absurd on its face. No one is allowed to lurk in a 

bathroom for improper reasons, regardless of gender; no policy about respecting 

trans people would ever change that; and protecting trans people does not put 

anyone else at risk. But you know who I do want to keep away from the children 

in my life? Anyone who spends his time trying to figure out how to pass a law 

that would make other people’s genitals his business.38

 

37 Fox News commentators Chris Wallace and Charles Krauthammer agree with this characterization. Wallace 

stated on camera that 

We actually decided to try to find out whether it is a public safety issue, whether it is a problem 

with transgender people misusing bathrooms to prey on others.... 

And here’s what the fact-checking group Politifact found: “We haven't found any instances of 

criminals convicted of using transgender protections as cover in the United States. Neither have 

any left-wing groups or right-wing groups.” 

Which brings me to Charles Krauthammer’s comment, ... which is that this seems to be a solution 

in search of a problem." 

“Fox Host: ‘Bathroom Bills’ Are A ‘Solution In Search Of A Problem,’ (VIDEO),” Talking Points Memo Livewire, 

April 25, 2016, available at http://talkingpointsmemo.com/livewire/chris-wallace-bathroom-bills. 

Charles Krauthammer’s comments, which Wallace referenced, identified the North Carolina law as 

“... a solution in search of an issue.” 

“I mean, do we really have an epidemic of transgenders being evil in bathrooms across the 

country? I haven't heard of a single case.” 

[Krauthammer] called it a “very small problem at the edges of other problems having to do with 

gender identity that's become national precisely because Republicans in North Carolina decided it 

was a problem.” 

“Krauthammer: NC Bathroom Law Was a ‘Solution In Search of an Issue,’” Fox News Insider, April 21, 2016, 

available at http://insider.foxnews.com/2016/04/21/krauthammer-transgender-bathroom-law-solution-search-issue. 

38 Wolff, Tobias Barrington, “The Ugly Fantasy at the Heart of Anti-Trans Bathroom Bills: Do Supporters of SoCalled ‘Bathroom Bills’ Want Trans People to Cease to Exist Altogether?’,” The Nation, March 25, 2016, available 

at http://www.thenation.com/article/the-ugly-fantasy-at-the-heart-of-anti-trans-bathroom-bills/. 
Commissioners’ Rebuttals 165 

It really is that simple. Legislators must have the courage to see the homophobia and 

transphobia that drive this entire, orchestrated, nationwide campaign. Hopefully, most 

legislators will understand, and have the strength to resist these efforts of questionable merit.
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Commissioners’ Rebuttals 167 

Commissioner Peter Kirsanow Rebuttal 

Responding to all the errors, misstatements, and mischaracterizations in my colleagues’ 

statements would require the wholesale destruction of an entire forest in violation of the 

Paperwork Reduction Act. I will therefore only address two points. 

Response to Statement of Chairman Castro 

The answer to the question posed by the title of this briefing has been answered by the majority 

of my Commission colleagues with an unequivocal “no.” Any doubt that the majority maintains 

that nondiscrimination principles trump and/or extinguish principles of religious liberty was 

erased by their statements in response to the report. 

The majority’s take on the primacy of nondiscrimination over religious freedom was perhaps 

most clearly and succinctly stated by Chairman Castro in the Commission’s April 15, 2016 

meeting. In responding to a proposed Tennessee bill that would provide an accommodation for 

therapists and counselors with moral objections to a patient’s lifestyle by allowing the therapists 

to refer such patient to another counselor, Chairman Castro asked: 

“So why is it even necessary for there to be an accommodation on any of this 

because of someone’s sexual orientation? They [the therapists] shouldn’t 

have to be accommodated. The services should just be provided.” (Emphasis 

added) 

Chairman Castro asserts that religious liberty has been used in the past to justify slavery and 

invidious discrimination. Chairman Castro’s singling out of Christianity is especially puzzling. 

At first I thought he surely meant to identify for opprobrium religions in addition to Christianity. 

But, as it happens, his venom is directed against American Christians past and present. Of 

course, there were Christian slave owners in America. That is indeed a repugnant period in 

American and Christian history but, unfortunately, unremarkable when viewed in the context of 

history as a whole. Slavery has been an almost universal institution. It is the abolition of 

slavery, largely because of individuals motivated by their Christianity, that is unusual. 

So, it is peculiar that the Chairman singles out Christianity for opprobrium in regard to slavery. 

Slavery has existed in almost every society and among the adherents of almost every major 

religion. But it was only in the Christian world that a serious critique of slavery arose. Those 

Christians who supported slavery were utterly unremarkable in the sweep of human affairs, no 

better or worse than millions of others throughout history. In contrast, it is remarkable, perhaps 

even astonishing, that there were Christians who rose far above the historical propensities of 

humankind to call for abolition as a religious and moral imperative. 
168 Peaceful Coexistence Report 

In criticizing Christianity in regard to Islam and slavery, the Chairman fails to recognize that 

Islam’s ties to slavery are at least as deep as those of Christianity.1 It was the self-avowed 

Christian British Empire that initially ended its own involvement in the international slave trade 

and then acted to curtail the slave trade within the Muslim world. As the Middle Eastern scholar 

J.B. Kelley wrote: 

No movement of any consequence towards abolition ever arose of its own accord 

in the Muslim world; it was the reproach of Muslim slavery, not Christian, that 

men and boys were castrated for service in the harim; and it was a Christian 

nation, Britain, which led the campaign to end the Arab slave trade and to compel 

Muslim rulers to forbid it to their subjects. . . . It was [British officials], after all, 

who led the Arab tribes of the Persian Gulf to cease trading in their fellowMuslims, the Somalis.2

Religious believers were also in the forefront of the civil rights movement. Of course, the most 

prominent leaders of the civil rights movement were disproportionately Christian ministers - 

Rev. Dr. Martin Luther King, Jr., Rev. Fred Shuttlesworth, Rev. Ralph David Abernathy, Rev. 

C.K. Steele. Rev. Theodore Hesburgh, perhaps our own Commission’s most renowned member, 

was among them. “More than 900 Catholics participated in the Selma protests” and a log of out 

of town participants in the Selma protests included “140 priests, 50 sisters, 29 ministers, four 

rabbis”.3

 Mary Parkman Peabody, the wife of a prominent Episcopal bishop, “at the behest of 

the Rev. Dr. Martin Luther King Jr. and his Southern Christian Leadership Conference” travelled 

to Florida, engaged in civil disobedience, and spent two nights in jail.4

 

A sense of modesty, humility, and perspective should temper our remarks about those who lived 

before us. We are all creatures of our own time, our minds and attitudes shaped by influences 

and assumptions of which we are largely unaware, our actions constrained by weighty 

 

1

 Bernard Lewis, THE MIDDLE EAST: A BRIEF HISTORY OF THE LAST 2,000 YEARS 124, 126 (1995) (“At first [the 

janissaries] were recruited exclusively from Christian captives and slaves, mainly by the devshirme”; “To some extent 

the dwindling supply of captives and renegades from Europe could be made good by importing slaves from the 

Caucasus. Caucasian women had always been appreciated in the harems of the Middle East, and Caucasian menslaves had also played a role of some importance”). 

2

 J.B. Kelly, “The European Empires and Islam,” in FIGHTING THE RETREAT FROM ARABIA AND THE GULF: THE 

COLLECTED ESSAYS AND REVIEWS OF J.B. KELLY, VOL. I, 308-09 (2013); see also Lewis, supra note 1 at 318 (“The 

abolition of legal chattel slavery [within the Ottoman Empire] was accomplished, in the main, by Western rule, 

interference, or influence, and did not evoke much concern or debate.”). 

3

 Paul Murray, 54 miles to freedom: Catholics were prominent in 1965 Selma march, NAT’L CATH. REP., Mar. 7, 

2015, http://ncronline.org/news/peace-justice/54-miles-freedom-catholics-were-prominent-1965-selma-march. 

4

 Robert D. McFadden, Mary Peabody, 89, Rights Activist, Dies, N.Y. TIMES, Feb. 7, 1981, 

http://www.nytimes.com/1981/02/07/obituaries/mary-peabody-89-rights-activist-dies.html; Karen Grigsby Bates, 

Why a Proper Lady Found Herself Behind Bars, NPR, Mar. 28, 2014, 

http://www.npr.org/sections/codeswitch/2014/03/28/294816965/why-a-proper-lady-found-herself-behind-bars. 
Commissioners’ Rebuttals 169 

responsibilities and unacknowledged self-interest. We all like to think that had we lived in the 

past we would be among the few righteous. But history is plain - the visionary righteous are few. 

Most of us are far more likely to have subscribed to the conventional wisdom of our time, or in 

good faith to have been unable to see our way clear to what is now considered self-evident. We 

cannot know the reasons future generations will condemn us.5 All we can know is that they will 

indeed condemn us, and hope that they judge us with more charity than the Chairman does our 

predecessors. 

Response to Statement of Commissioners Achtenberg, Kladney, Yaki, and Chairman 

Castro6

In footnote 35, Commissioner Achtenberg approvingly quotes Professor Ira Lupu: 

Despite Obergefell’s nod to the existence of good faith religious opinion against 

same sex marriage, religious objections to same sex intimacy will ultimately 

retain no more respect than religious objections to racial integration and interracial intimacy. In a nation committed to a more Perfect Union, the arc of the 

religious universe is long, but it too bends toward justice. [footnotes omitted.]7

What Professor Lupu argues for is the subordination of religious beliefs to the secular orthodoxy 

of the moment. This presumes religious beliefs are temporal rather than eternal. This 

fundamentally misapprehends the nature and quality of religious belief. It also misunderstands 

the lessons of history. Spectacularly so. 

The twentieth century had no shortage of those who believed that they were ushering in a new 

and better age, and that ushering in that age was worth silencing unpopular beliefs and 

squelching unpopular views. Some of those individuals lived in places such as the Soviet Union, 

Maoist China, and areas of the Middle East. Rhetorical flourishes about the arc of history or the 

religious universe bending toward justice are, tragically, often disproven by actual history. The 

history of totalitarian regimes in the twentieth and twenty-first centuries should disabuse 

everyone of the notion that history’s, or the religious universe’s, arc necessarily bends in a 

particular direction, a predictable direction, a beneficent direction. 

Accepting that we are not inexorably moving toward an immanentized eschaton leads to the 

realization that we can make mistakes. Indeed, we can make potentially catastrophic mistakes 

like the triumphalist thought-conformity contemplated in footnote 35. 

 

5

 For example, at one time eugenics was a pet cause of the Progressive great and good. Today eugenics is publicly 

regarded with horror. See Thomas C. Leonard, Retrospectives: Eugenics and Economics in the Progressive Era, J. OF 

ECON. PERSPECTIVES, Vol. 19, No. 4, 207 (2005), https://www.princeton.edu/~tleonard/papers/retrospectives.pdf. 

6

 For simplicity, throughout this section I will refer only to Commissioner Achtenberg, although I am of course 

referring also to the three other commissioners who signed this statement. 

7

 Achtenberg Statement, supra n. 35 at 40. 
170 Peaceful Coexistence Report 

Such thought conformity may seem comfortable and enlightened when, during any given 

moment in the arc of history, the regnant thoughts, beliefs, and values are consistent with one’s 

own. But when the prevailing thoughts and beliefs shift, as they inevitably do, such conformity 

can prove disastrous. That is precisely why religious liberty, freedom of belief, freedom of 

thought is so important. That is why it should be accommodated, whenever possible, in a 

manner that affords an appropriate balance with other constitutionally-protected rights. Without 

such accommodation for freedom of belief all other freedoms are not merely fragile, but illusory. 
Panelists’ Written Statements 171 

PANELISTS’ WRITTEN STATEMENTS 

Alan Brownstein 

My name is Alan Brownstein. I am a Professor of Law at the University of California, Davis 

School of Law. Thank you for giving me the opportunity to contribute to this briefing. I am 

going to focus my statement on issues relating to religious liberty and, in part, on the problem of 

reconciling religious liberty and government policies recognizing same-sex marriages and 

protecting same-sex couples against discrimination. 

The Limited Constitutional Constraints on State Action Burdening or Accommodating 

Religious Liberty 

The subject of this briefing - the problem of reconciling non-discrimination principles with civil 

liberties - confronts our society with difficult issues. As a legal matter, many cases, particularly 

those involving religious liberty concerns, raise complex doctrinal questions that challenge the 

sometimes limited analysis of past precedent. From a normative perspective, these problems are 

hard to resolve because important interests and values can be counted on both sides of these 

disputes. Some costs we would prefer not to incur will be unavoidable no matter what decision 

we reach. 

The job of evaluating and balancing the competing interests and values in controversies 

involving religious liberty claims will fall primarily, although not exclusively, on the political 

branches of government. Over the last twenty-five years, the Supreme Court has substantially 

narrowed the scope of both of the religion clauses of the First Amendment. Under the holding of 

Employment Division v. Smith, the Free Exercise Clause has been interpreted to provide 

substantially no protection to religious exercise against neutral laws of general applicability.1

 

The rigor and enforceability of establishment clause principles restricting state aid to religious 

institutions and prohibiting the endorsement of religion through state sponsored displays have 

been seriously eroded as well.2 Given this precedent and the strong likelihood that the current 

Court will follow this doctrinal approach, most church-state issues relating to religious liberty 

and equality in our society are going to be resolved through political deliberation rather than the 

constitutional adjudication of religion clause claims. 

 

1 See Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). 

2 See e.g., Mitchell v. Helms, 530 U.S. 793, (2000) (upholding direct grants to religious institutions distributed 

according to neutral criteria); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding voucher program 

subsidizing religious schools); Van Orden v. Perry, 545 U.S. 677 (2005) (upholding Ten Commandments monument 

on state capitol grounds); Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007) (restricting taxpayer 

standing to litigate Establishment Clause claims). 
172 Peaceful Coexistence Report 

The Court has decided two contemporary cases, Church of Lukumi Babalu Aye v. Hialeah3 and 

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,4 in which the religion 

clauses were successfully asserted as a shield against government interference with religious 

liberty. I do not believe that either case suggests a significant change in doctrinal direction by 

the Court. In Church of Lukumi Babalu Aye, a case involving laws restricting ritual animal 

sacrifices performed by members of the Santeria faith, the Court employed a complex analysis to 

determine whether the challenged laws are sufficiently neutral and generally applicable to fall 

within the holding of Employment Division v. Smith. Because the Court considered multiple 

factors of indeterminate weight in concluding that the Free Exercise Clause was violated in this 

case, the Church of Lukumi Babalu Aye decision is of uncertain precedential utility. It most 

clearly establishes that states cannot use ostensibly neutral and general laws as a form of 

“religious gerrymander” to discriminate against a specific religion. Most neutral laws of general 

applicability burdening religious exercise will not be vulnerable to such a challenge. 

While Hosanna-Tabor Evangelical Lutheran Church and School is an important case, it is also 

unlikely to dramatically redirect the development of religion clause jurisprudence. In HosannaTabor, the Supreme Court confirmed for the first time the existence of a “ministerial exception” 

grounded in the religion clauses of the First Amendment that immunizes the hiring of clergy 

from the operation of civil rights laws. However, the case holding is limited to persons who hold 

the title of minister, self-identify with that designation, and perform important religious functions 

as part of their professional duties. Moreover, every Federal Court of Appeals addressing the 

question had already recognized the existence of the “ministerial exception.”5 There is no 

evidence that their doing so had any extraneous impact on other free exercise or establishment 

clause cases. 

Overwhelmingly, anti-discrimination laws are neutral laws of general applicability. Thus, aside 

from cases falling within the ministerial exception, or involving a religious gerrymander under 

Lukumi Babalu Aye, as a general rule these laws can be applied even when doing so has the 

effect of burdening the free exercise of religion. Accordingly, it will typically be up to the 

people and their elected representatives to resolve the tension between religious liberty concerns 

and non-discrimination policies. Political deliberation will determine whether discretionary 

 

3

 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). 

4

 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012). 

5 Id. at 705. 
Panelists’ Written Statements 173 

accommodations are provided either through broadly stated statutes6 or specific exemptions from 

general laws.7

While the availability of exemptions from anti-discrimination laws for religious individuals and 

institutions will be determined by political decision-making in most situations, constitutional law 

will continue to impact legislative and executive decisions burdening or accommodating 

religious liberty in three distinct ways. First, in a relatively limited set of circumstances, some 

statutory or administrative religious accommodations will be struck down for violating the 

Establishment Clause. Second, freedom of speech and freedom of association claims may be 

asserted by religious associations and institutions to challenge anti-discrimination policies. 

Third, the conceptual analysis and arguments employed in constitutional opinions will influence 

political culture and attitudes. The reasoning of judicial opinions will sway the exercise of 

political discretion. 

As to constitutional constraints on the decision to grant particular religious accommodations, the 

Establishment Clause restricts the nature and scope of such accommodations to some extent. 

While most accommodations are permissible, some accommodations are unconstitutional 

because they are not sufficiently even-handed and impermissibly favor one faith over others.8

 

Other accommodations violate the Establishment Clause because they go too far and impose an 

unacceptable burden or risk on third parties.9 It remains to be seen whether the Court will 

weaken its review of religious accommodations under the Establishment Clause to the same 

degree that it has retreated from establishment clause requirements restricting state financial 

subsidies to religious institutions and prohibiting the endorsement of religion through state 

sponsored displays. 

While the Establishment Clause imposes some limits on the state’s power to grant discretionary 

religious accommodations, freedom of speech and freedom of association doctrine can serve as 

an alternative foundation for asserting that the Constitution requires accommodations to protect 

the exercise of religion. In a significant line of cases, the Court has bypassed the Free Exercise 

Clause and struck down government regulations denying religious groups access to public 

 

6 See, e.g., The Religious Freedom Restoration Act of 1993, 42U.S.C. § 2000bb et seq. Several states have also 

adopted laws modeled after the federal Religious Freedom Restoration Act, but they have had limited utility. See 

Christopher C. Lund, Religious Liberty After Gonzales: A Look At State RFRAS, 55 S.D. L. REV. 466 (2010). 

7 See, e.g., Section 702 of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000e-1 (exempting religious organizations from 

Title VI’s prohibition against religious discrimination in hiring). 

8 See, e.g., Larson v. Valente, 456 U.S. 228 (1982); Board of Education, Kiryas Joel Village School District v. 

Grumet, 512 U.S. 687 (1994). 

9

 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (striking down statute providing absolute and unqualified 

accommodation of Sabbath observers because it unconstitutionally favors and advances religion); Cutter v. 

Wilkinson, 544 U.S. 709, 720-24 (2005) (upholding broad accommodation requirement with the understanding that it 

will be applied neutrally among faiths and will not impose unreasonable burdens on nonbeneficiaries). 
174 Peaceful Coexistence Report 

property for expressive religious activities when secular groups were provided access to the same 

facilities for non-religious activities.10 In the most recent of these cases, the Supreme Court 

concluded that these exclusions of expressive religious activities constituted impermissible 

viewpoint discrimination in clear violation of accepted free speech doctrine. 

This viewpoint discrimination contention has been raised by religious groups to challenge the 

application of anti-discrimination policies to their membership decisions and their selection of 

officers. Most notably, plaintiffs in Christian Legal Society v. Martinez11 argued unsuccessfully 

that the Hastings College of Law’s anti-discrimination policy constituted prohibited viewpoint 

discrimination. Justice Alito and the other dissenting Justices in Martinez, however, were 

persuaded that a state college policy prohibiting student clubs from discriminating on the basis of 

religion, while not prohibiting student clubs from discriminating on the basis of political or 

secular beliefs, was viewpoint discriminatory because it interfered with the associational freedom 

of religious organizations, but not their secular counterparts.12

As I have argued in prior work, Justice Alito’s viewpoint discrimination argument in his dissent 

in Martinez is mistaken on the merits and inconsistent with accepted free speech principles.13 

The more important problem with the Martinez dissent, however, is that it helps to demonstrate 

how the Court’s willingness to construe religious beliefs and expressive activities to be speech, 

rather than the exercise of religion - protected under freedom of speech, rather than free exercise, 

doctrine - may severely undercut the legitimacy of laws accommodating religious liberty or 

shielding it from state interference. 

Understood as a liberty right, the exercise of religion may receive distinctive protection and 

accommodations that need not be provided to secular activities or institutions. Such religionspecific accommodations are rarely constitutionally mandated after the Smith decision, but 

discretionary, political determined religious accommodations are often constitutionally 

permissible for religion clause purposes. Put simply, the religion clauses do not prohibit the 

distinctive treatment of religion by the state. If anything, they acknowledge the propriety of 

distinctive treatment in limiting the state’s ability to interfere with or promote religion. 

Free speech doctrine is entirely different. If religious expressive activities are conceptualized as 

speech, indeed, as expressing a viewpoint of speech, the First Amendment’s free speech clause 

requirements prohibit government from treating these religious activities any differently than 

 

10 See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 

U.S. 384 (1993); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). 

11 Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010). 

12 Id. at 3009 - 13. 

13 Alan Brownstein and Vikram Amar, Reviewing Association Freedom Claims in a Limited Public Forum: An 

Extension of the Distinction Between Debate-Dampening and Debate-Distorting State Action, 38 HASTINGS CONST.

L. Q. 505 (2011). 
Panelists’ Written Statements 175 

non-religious expressive activities. The Free Speech Clause is a harsh mistress, particularly with 

regard to its prohibition against viewpoint discrimination. The same doctrinal principle that 

prohibits government from discriminating against religion operates with equal force to prohibit 

government from discriminating in favor of religion. 

The implications of this reasoning are far reaching. If religious beliefs and expressive activities 

are conceptualized as speech, in the way that Justice Alito’s analysis suggests, various 

accommodations of religion might be subject to constitutional challenge on the grounds that they 

impermissibly favor religious viewpoints and messages. One example, arising out the Martinez

case, should be sufficient to illustrate the risks created by an overly ambitious willingness to 

construe religion as speech. Conventional civil rights laws (and the original written policy at the 

Hastings College of Law) prohibit discrimination based on a variety of individual characteristics: 

race, gender, religion, sexual orientation, age, disability etc. Such laws rarely prohibit 

discrimination on the basis of political affiliation or belief. 

From a liberty or equality perspective, these laws are unexceptional. The exercise of religion is a 

distinctively recognized liberty interest. A person’s religious status is a core aspect of their 

identity that too often has been the focus of prejudice and irrational discrimination. For religion 

clause purposes, there is nothing problematic about prohibiting discrimination based on religion, 

while not prohibiting discrimination based on political affiliation or belief. 

If we conceptualize religion as a viewpoint of speech and examine the same laws under free 

speech doctrine, a very different analysis applies. Now we are reviewing a law that provides far 

greater protection against discrimination to individuals who hold and espouse religious beliefs 

than it provides to individuals who hold and espouse political or secular beliefs. For free speech 

purposes, why shouldn’t these civil rights laws be vulnerable to challenge on the grounds that 

they unconstitutionally favor religious viewpoints? The Court’s continued willingness to 

construe religion as speech, without providing any demarcation lines that suggest when one 

constitutional framework or another is appropriate in particular circumstances, makes it more 

and more difficult to answer questions like this one. 

Finally, even if constitutional law does not directly constrain government decisions related to 

religious liberty, the Court’s decisions may indirectly influence whether discretionary religious 

accommodations will be granted by the legislature or government administrators. Discretionary 

political accommodations of religious practice and belief are predicated on the principle that 

there is something distinctive about religion that justifies exempting religious individuals and 

institutions from laws that their secular counterparts must obey. Accordingly, constitutional 

arguments that cast doubt on the idea that religion is distinctive by suggesting that religious and 

non-religious individuals or institutions are similarly situated and should be treated the same way 

by government erode the conceptual foundation on which religious accommodations are based. 

The reasoning of recent Supreme Court decisions adjudicating establishment clause and free 
176 Peaceful Coexistence Report 

speech cases communicate just this message, and in doing so, they substantially undermine the 

basic idea that religion is different in a way that justifies special legal attention and treatment. 

Recent establishment clause cases permitting government to fund religious institutions through 

grants or vouchers suggest that there is nothing about these institutions that warrants treating 

them differently for funding purposes than non-religious institutions. As long as the funding 

criteria being used to award subsidies is neutral, the religious nature of the entities seeking state 

subsidies can be ignored.14 This neutrality model, however beneficial it may be to religious 

institutions in financial terms in some circumstances, recognizes religious communities as just 

another interest group seeking state support for their activities. If religious institutions can 

demand and receive an equal right to seek the same support from the government as their 

competitors, they will be far less persuasive in demanding exemptions from general regulations 

that other organizations must obey. 

The reasoning underlying recent free speech cases, discussed above, is even more problematic 

for claims for discretionary religious accommodations. When religious practice and activities 

are understood to express particular viewpoints in public discourse and debate, providing 

distinctive protection to religious activities and institutions seems inconsistent with a core 

understanding of freedom of speech - the rule that government cannot favor one viewpoint or 

message over another. Accommodations that may seem justifiable if they are perceived as 

shielding the exercise of a liberty right, religious freedom, from state interference may seem far 

less deserving of support if they are perceived to be privileging religious messages in the 

marketplace of ideas. 

Reconciling Religious Liberty and the Right of Same-Sex Couples to Marry 

If conflicts between religious liberty and non-discrimination policies are going to be resolved 

politically, rather than through constitutional adjudication, how are we as a society to approach 

and evaluate these disputes? Is there any basis for seeking some principled resolution of these 

controversies, or will all these issues be decided solely as matter of political power - with the 

larger or stronger constituency in a jurisdiction controlling the result without regard to the value 

or interests on the losing side? 

I have been struggling with this issue for several years in the specific context of the conflict 

between religious liberty and policies protecting same-sex married couples against 

discrimination. I don’t know that I can claim to bring an entirely evenhanded perspective to this 

dispute. I can say that I am unequivocally committed to the moral necessity of states recognizing 

same-sex marriages, and that I have spent the last twenty five years of my professional life 

writing about, and advocating for, the rigorous protection of religious freedom. 

 

14 See Mitchell v. Helms and Zelman v. Simmons-Harris, supra note 2. 
Panelists’ Written Statements 177 

Not all religions oppose same-sex marriages and there is disagreement within many 

denominations about both the religious and the legal status of same-sex unions. Religious 

individuals and institutions that oppose same-sex marriages fear that if such relationships are 

legalized they will be required by anti-discrimination laws or other government policies to affirm 

or support as valid marriages that violate the requirements of their faith. Some disputes have 

already occurred and more are predicted.15 Religious objectors and their proponents may seek 

exemptions from laws or duties that require them to facilitate or validate same-sex marriages by 

issuing a marriage license to a same-sex couple, providing catering, photography, floral 

arrangements or other services to a same-sex couple’s wedding, or renting an apartment or hotel 

room to a gay or lesbian couple. Other claims may involve religious adoption agencies refusing 

to place children with same-sex couples or religious employers refusing to extend spousal 

benefits to a same-sex spouse. 

In public discourse the arguments on both sides of this debate are sometime harsh and 

uncompromising. To some opponents of same-sex marriage, gay and lesbian couples are trying 

to force religiously observant individuals and religious institutions to accept as normal and moral 

what they perceive to be the unnatural and sinful behavior of homosexual unions. Similarly, 

some opponents of religious accommodations view religious individuals and institutions seeking 

exemptions from civil rights laws as unrelenting bigots determined to undermine the equal 

treatment of gays and lesbians in our society in any way that they can. 

In addressing this conflict, I start with a basic normative and political principle.16 If we are 

going to achieve some form of reconciliation between the constituencies supporting these 

competing claims, some form of political compromise, people on both sides of these issues need 

to recognize that one of the best ways to protect one’s own liberty and autonomy rights is to 

recognize the liberty and autonomy of others. 

The application of this principle to the current debate about religious liberty and same-sex 

marriage presupposes that religious liberty and the right of same-sex couples to marry are 

autonomy rights that are worthy of respect. Here, I suggest that the right of same-sex couples to 

marry and religious liberty rights share a common foundation as important personal autonomy 

rights. Indeed, counter intuitive as it may seem, at some basic level, these rights can be 

understood to mutually reinforce each other. Thus, strengthening our cultural and legal 

commitment to personal autonomy supports both religious liberty and the right of same-sex 

couples to marry. 

 

15 See generally SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS, (Douglas Laycock. Anthony 

R. Picarello, Jr., & Robin Fretwell Wilson, eds. 2008); Ira CV. Lupu and Robert W. Tuttle, Same-Sex Equality and 

Religious Freedom, 5 NW.J. L. & SOC. POL’Y 274 (2010). 

16 This section of my statement is based on a previously published article, Alan Brownstein, Gays, Jews, and Other 

Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of SameSex Couples to Marry, 45 UNIVERSITY OF SAN FRANCISCO LAW REVIEW 389 (2010). 
178 Peaceful Coexistence Report 

Equality and autonomy rights grounded in sexual orientation and equality and liberty rights 

grounded in religious identity parallel each other in important respects. For example, for many 

devoutly religious persons, religion is a core aspect of their identity. It is a fixed part of who 

they are. Similarly, sexual orientation is a fixed part and core aspect of a gay or lesbian person’s 

identity. Just as it is unrealistic, unfair, and useless to insist as a matter of social policy that gays 

and lesbians should just stop being gay, it is equally unacceptable to insist that devoutly religious 

persons should just stop obeying the dictates of their faith. 

Also, religion and sexual orientation have a merged identity and conduct dimension to them. It 

makes no sense to tell devout Catholics that they are protected as to their religious identity, but 

they are prohibited from practicing Catholicism. It is similarly senseless to protect the identity of 

gays and lesbians, while prohibiting their right to sexual intimacy. Neither gays nor lesbians nor 

devoutly religious individuals can reasonably be required to change who they are - or to separate 

their conduct from their identity. Religion is no more an easily discarded so-called lifestyle than 

is an orientation toward sexual intimacy and association. 

Moreover, both religious belief and affiliation and same-sex marital relationships are the source 

of duties and responsibilities. They are both intended to express the seriousness of mutual 

commitments. Religious people want to have the liberty to fulfill the responsibilities that arise 

out of their relationship with G-d. Same-sex couples want to marry in order to express their 

commitment to the person with whom they want to share their lives - and to fulfill the 

responsibilities that arise out of this relationship. 

Perhaps most importantly, the essence of religious liberty is the right to be different and to be 

wrong in the eyes of others. Members of many faiths believe that adherents of other religions or 

non-believers are deeply and seriously in error in their beliefs. A commitment to religious 

liberty tempers the conflict among religions by allowing the adherents of different faiths to 

follow their own path -- even if other religions believe it is the wrong road and takes them away 

from G-d. 

A similar analysis applies to the conflict between some religious adherents and same-sex marital 

couples. Protecting the liberty interests of both groups requires the mutual recognition of the 

right to be wrong in the other group’s eyes. 

Ultimately, respect for personal autonomy rights has to be a two way street. It cannot be 

restricted solely to those who exercise their liberty and autonomy in approved ways. There is no 

gold standard that defines the scope of fundamental rights by only protecting what the majority 

deems to be the best religions or the best kinds of sexual intimacy. If we believe that we should 

limit the state’s authority to interfere with core autonomy interests, then those limitations should 

apply equally when we are in the majority and can use state power to impose our beliefs on 

others, and when we are a minority and fear having the majority’s beliefs imposed on us. A 
Panelists’ Written Statements 179 

meaningful commitment to core autonomy rights would protect both religious liberty and the 

right of gays and lesbians to marry the person with whom they choose to share their lives. 

Agreeing that two autonomy rights, religious liberty and the right of same-sex couples to marry, 

both deserve respect doesn’t tell us how we should reconcile these rights when they are in 

conflict with each other. Here, I suggest that existing models of religious accommodation 

provide some useful guidance. We have a long history in the United States of resolving conflicts 

between religious liberty and public policy requirements through carefully crafted exemptions 

and accommodations. Recognizing the objections of religious pacifists to conscription may be 

one of the oldest examples of such accommodations, but it is only one example of many. The 

adoption of civil rights laws and the protection of various autonomy rights have often created 

problems for some religious individuals and institutions and in appropriate circumstances, 

religious accommodations have been created to respond to these concerns. 

Some understanding of how prior conflicts between civil rights laws (and other government 

policies) and religious liberty have been resolved has to be part of the analysis. There is nothing 

about same-sex marriages that suggests that they represent some kind of a unique, outlier 

problem because of their impact on religious liberty. Once cannot simply presume that claims 

for religious exemptions from civil rights laws prohibiting discrimination based on race, gender, 

national origin, religion, age, or disability that would be rejected in the past must be accepted 

now when the prohibited discrimination is based on sexual orientation. 

Two models, based on existing frameworks, have been offered as a basis for determining when 

accommodations for religious objectors to same-sex marriage should be granted. One model 

analogizes discrimination against same-sex marital couples to racial discrimination. Under this 

approach, few, if any accommodations would ever be granted. I reject this analogy because 

racism has played such a uniquely invidious role in American history. The goal of purging racial 

discrimination from our society has no equal and no counterpart. 

Another model analogizes accommodations for religious objectors to same-sex marriage to 

conscience clauses for health care providers who refuse to perform abortions. I reject this 

analogy as well. Narrow and limited accommodations focused on a specific set of health care 

procedures have little relevance to religious objections to on-going relationships that may endure 

for decades. 

I suggest that a better model for evaluating proposed exemptions from civil rights laws 

protecting same-sex married couples from discrimination would be based on accommodations 

that permit discrimination on the basis of religion. That is, a starting point for our inquiry would 

be to determine when we would free religious institutions or individuals from any civil rights 

obligation to employ, or provide goods and services to, people of other faiths without 

discrimination based on their religious belief, identity, or practices. 
180 Peaceful Coexistence Report 

This model is supported by the parallels between religious liberty and the right of same-sex 

couples to marry described above. It also reinforces two important ideas that may be essential to 

meaningfully reconciling these conflicting claims. First, just as we recognize in evaluating 

proposed accommodations of religiously based religious discrimination that there is something 

of serious value on each side of the scale, a comparable balance between important values 

applies when we evaluate proposed accommodations of religiously-based discrimination against 

same-sex married couples. 

Second, by providing limited accommodations for discrimination based on religion, we 

acknowledge that protecting the religious liberty of the diverse faiths in our society requires 

some mutual recognition of the right to be wrong in the eyes of others. Both the religious group 

engaging in discrimination and the religious individuals subject to such discrimination may view 

the other faith’s beliefs and conduct as sinful or immoral. Limited accommodations require that 

both groups provide the other some freedom to act wrongly free from state interference or 

private discrimination. A similar analysis applies if we analogize the accommodation of 

religious objectors to same-sex marriage to the accommodation of religiously based religious 

discrimination. Both groups would be asked to recognize the right to act wrongly in the eyes of 

the other. 

The model I propose provides a way to think about the problem of reconciling religious liberty 

and the right of same-sex couples to marry and be free from discrimination. It is not intended to 

serve as a blueprint for specific legislative accommodations. It requires that legislatures ask 

when they consider specific accommodations whether they would be willing to support the 

exemption from civil rights laws if it accommodated discrimination against Jews or Moslems or 

Mormons as well as same-sex couples. Religious exemptions would apply to discrimination 

based on religion as well as sexual orientation, not just to discrimination based on sexual 

orientation. 

Still, it is possible to suggest some ways in which the model could be applied. Turning to 

existing law for guidance, the model would protect non-profit religious institutions far more than 

it would protect commercial businesses. Title VII’s exemption of non-profit religious 

organizations from the statute’s prohibition against religious discrimination in hiring17 would 

apply to discrimination in the hiring of married gays and lesbians and, arguably, to the denial of 

spousal benefits to the non-employee spouse of a same-sex couple. The autonomy of non-profit 

religious institutions in other circumstances, however, would have to be subordinated to the 

needs of gay and lesbian families. I cannot imagine a religious hospital being allowed to deny 

the legal prerogatives due the spouse of a patient because the hospital objected to an inter-faith 

 

17 See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 

(1987) (upholding constitutionality of Section 702 of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000e-1, which 

exempts religious organizations from Title VI’s prohibition against religious discrimination in hiring, in the context of 

nonprofit activities). 
Panelists’ Written Statements 181 

marriage or to the marriage of previously divorced individuals. Accordingly, religious hospitals 

would be required to acknowledge the rights due the same-sex spouse of a patient in their care. 

In some cases, the application of this model to accommodations for religious objectors to samesex marriage will be obvious. There will also be grey areas and hard cases. The model provides 

a framework for beginning a discussion about the reconciliation of conflicting rights. It is not 

presented as the complete answer to all the issues that may arise in the numerous circumstances 

in which religious liberty claims relating to same-sex marriage may be asserted. 

Kimberlee Wood Colby 

I am Kim Colby, Senior Counsel at Christian Legal Society’s Center for Law and Religious 

Freedom where I have worked for over 30 years to protect religious students’ rights to meet 

for religious speech on college campuses. Christian Legal Society (“CLS”) has long believed 

that pluralism, essential to a free society, prospers only when the First Amendment rights of all 

Americans are protected regardless of the current popularity of their speech. For that reason, 

CLS was instrumental in passage of the Equal Access Act of 198418 that protects the right of 

students to meet for “religious, political, philosophical or other” speech on public secondary 

school campuses.19 The Act has protected both religious and homosexual student groups 

seeking to meet for disfavored speech.20

CLS is an association of Christian attorneys, law students, and law professors, with student 

chapters at approximately 90 public and private law schools. CLS law student chapters 

typically are small groups of students who meet for weekly prayer, Bible study, and worship at 

a time and place convenient to the students. All students are welcome at CLS meetings. As 

Christian groups have done for nearly two millennia, CLS requires its leaders to agree with a 

statement of faith, signifying agreement with the traditional Christian beliefs that define 

CLS. Beginning in 1993, CLS student chapters, like other religious student groups, began to 

encounter some university administrators’ misuse of nondiscrimination policies to exclude 

 

18 20 U.S.C. 4071-4074 (2013). 

19 See 128 Cong. Rec. 11784-85 (1982) (Sen. Hatfield statement). 

20 See, e.g., Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) (requiring access for religious student group); Straights 

and Gays for Equality v. Osseo Area School No. 279, 540 F.3d 911 (8th Cir. 2008) (requiring access for homosexual 

student group). 
182 Peaceful Coexistence Report 

religious student groups from campus, simply because they require their leaders to agree with 

their religious beliefs.21

This expanded written statement examines the supposed conflict between university 

nondiscrimination policies and religious liberty that occurs when some college administrators’ 

misinterpret nondiscrimination policies to treat religious groups’ use of religious leadership 

criteria as “religious discrimination.” But it is common sense and basic religious liberty - not 

discrimination -- for religious groups to expect their leaders to share their religious beliefs. 

Nondiscrimination policies serve valuable purposes. But nondiscrimination policies are 

intended to protect religious students on campus, not punish them for being religious. When 

universities misuse nondiscrimination policies to exclude religious student groups, they 

actually undermine nondiscrimination policies’ purposes and the good they serve. If used 

with appropriate sensitivity, nondiscrimination policies and religious liberty are eminently 

compatible, as shown by many universities’ model policies that create a sustainable 

environment in which nondiscrimination principles and religious liberty can harmoniously 

thrive.22

Part II explores the need for a reflective understanding of “discrimination” that is sensitive to 

both religious liberty and nondiscrimination principles. Examining the intersection of religious 

freedom and nondiscrimination norms, a leading constitutional scholar explains: 

When we say that ‘discrimination’ is wrong, what we actually mean is that wrongful 

discrimination is wrong, and when we affirm that governments should oppose it we mean 

 

21 See Michael Stokes Paulsen, A Funny Thing Happened on the Way to the Limited Public Forum: Unconstitutional 

Conditions on “Equal Access” for Religious Speakers and Groups, 29 U.C. Davis L. Rev. 653, 668-72 (1996) 

(detailing University of Minnesota’s threat to derecognize CLS chapter); Stephen M. Bainbridge, Student Religious 

Organizations and University Policies Against Discrimination on the Basis of Sexual Orientation: Implications of the 

Religious Freedom Restoration Act, 21 J.C. & U.L. 369 (1994) (detailing University of Illinois’ threat to derecognize 

CLS chapter). 

22 See Attachment C. The University of Florida’s nondiscrimination policy is an excellent model for striking the 

appropriate balance between nondiscrimination policies and religious liberty: “A student organization whose 

primary purpose is religious will not be denied registration as a Registered Student Organization on the ground that 

it limits membership or leadership positions to students who share the religious beliefs of the organization. The 

University has determined that this accommodation of religious belief does not violate its nondiscrimination 

policy.” University of Florida “Student Organization Registration Policy Update,” at 12, available at

https://www.studentinvolvement.ufl.edu/Portals/1/Documents/Organizations/Handbooks/Student%20Org%

20Handbook%202011-2012.pdf (last visited March 8, 2013). See also, University of Texas, “New Student

Organization Application,” available at http://deanofstudents.utexas.edu/sa/downloads/New_Org_App.pdf (last 

visited March 8, 2013); University of Houston, “Organizations Policies,” § 2.4 (a) (3), available at

http://www.uh.edu/dos/pdf/2011-2012StudentHandbook.pdf (last visited March 8, 2013); 

University of Minnesota “Constitution and By-Laws Instructions” in Student Groups Official Handbook, 

available at http://sua.umn.edu/groups/handbook/constitution.php (last visited March 8, 2013). 
Panelists’ Written Statements 183 

that governments should oppose it when it makes sense, all things considered, and when it is 

within their constitutionally and morally limited powers, to do so.23

Caution needs to be taken before affixing the stigmatizing label of “wrongful 

discrimination” to religious groups’ exercise of a fundamental religious liberty. Reflecting 

an appropriate sensitivity to religious liberty, most nondiscrimination laws, including Title 

VII, simultaneously prohibit discrimination while protecting religious groups’ ability to 

maintain their religious identities. 

Part III analyzes the Supreme Court’s decision in Christian Legal Society Chapter of University 

of California, Hastings College of the Law v. Martinez,24 a narrow decision that is easily 

misunderstood. In Martinez, the Court explicitly did not decide whether nondiscrimination 

policies could be used to penalize the religious students that they are supposed to protect. 

Instead, the Court narrowly, and conspicuously, confined its decision to an unusual “allcomers policy,” unique to one law school, that required all student groups to allow any 

student to be a member and leader of the group, regardless of whether the student agreed with—

or actively opposed—the values, beliefs, or speech of the group.25 Moreover, the Court held it 

was not enough for a university to adopt an “all-comers policy”: the policy must actually be 

uniformly applied to all student groups.26

As Part IV explains, “all-comers policies” are rare because, as the Martinez decision requires, 

they must be applied without exception to all student groups. As a practical matter, an “allcomers policy” is completely unworkable because of its inherent incompatibility with the 

sororities and fraternities, a cappella groups, and club sports teams found on most campuses. 

Besides ending selection of members and leaders on the basis of sex, an all-comers policy 

would seem to require fraternities and sororities to adopt a “first-come, first-pledge” 

selection process to ensure their openness to all students. 

A healthy balance between nondiscrimination policies and religious liberty is absolutely 

necessary and easily attainable. The conflict is entirely avoidable if university administrators 

exercise tolerance, common sense, and sensitivity to religious student groups and their basic 

religious liberty to be led by persons who share their religious beliefs. 

 

23 Richard W. Garnett, Religious Freedom and the Nondiscrimination Norm, ch. 4 in Austin Surat, ed., Legal 

Responses to Religious Practices in the United States 194, 198 (Cambridge University Press, 2012). A summary of 

Professor Garnett’s article is found at Richard W. Garnett, Confusion about Discrimination, The Public Discourse, 

Apr. 5, 2012, available at http://www.thepublicdiscourse.com/2012/04/5151/ (last visited March 8, 2013). 

24 130 S.Ct. 2971 (2010). 

25 Id. at 2982, 2984; id. at 2999 (Kennedy, J., concurring). 

26 Id. at 2993-2995. 
184 Peaceful Coexistence Report 

Misuse of Nondiscrimination Policies to Exclude Religious Student Groups from Campus 

Violates The Students’ Basic Religious Liberty and Is Instead Religious Discrimination by 

the Universities. 

Nondiscrimination policies serve valuable purposes. But nondiscrimination policies are 

intended to protect religious students on campus, not punish them for being religious. When 

universities misuse nondiscrimination policies to exclude religious student groups, they 

actually undermine nondiscrimination policies’ purposes and the good they serve.27 In the 

process, they diminish diversity on campus. In the name of “tolerance,” college 

administrators institutionalize religious intolerance. In the name of “inclusion,” college 

administrators exclude religious student groups from campus.28

This misuse of nondiscrimination policies is unnecessary. Many leading universities have 

policies that protect religious groups’ religious leadership criteria. The University of Florida’s 

nondiscrimination policy is an excellent model for striking the appropriate balance between 

nondiscrimination policies and religious liberty. Protection for religious student groups is 

embedded in the nondiscrimination policy: “A student organization whose primary purpose 

is religious will not be denied registration as a Registered Student Organization on the 

ground that it limits membership or leadership positions to students who share the religious 

beliefs of the organization. The University has determined that this accommodation of 

religious belief does not violate its nondiscrimination policy.”29 Similarly, the University of 

Texas provides: “[A]n organization created primarily for religious purposes may restrict the 

right to vote or hold office to persons who subscribe to the organization’s statement of 

faith.”30 The University of Houston likewise provides: “Religious student organizations 

may limit officers to those members who subscribe to the religious tenets of the organization 

 

27 As Dean Joan Howarth of the Michigan State University College of Law has explained, “the application of the 

nondiscrimination policy against faith-based groups undermines the very purpose of the nondiscrimination 

policy: protecting religious freedom.” Joan Howarth, Teaching Freedom: Exclusionary Rights of Student Groups, 

42 U.C. Davis L. Rev. 889, 915 (2009). 

28 This happened quite literally at Tufts University when a group calling itself the “Coalition Against Religious 

Exclusion” failed to see the irony in its efforts to exclude a religious student group from campus because of the 

group’s traditional religious beliefs. After the religious student group was derecognized for several months, its 

recognition was restored under a new policy that allows religious groups to have religious leadership criteria. 

Tufts University, Undergraduate Education, Student Affairs, & Student Services, “Decision of the Tufts 

University Committee on Student Life on Recognition of Student Religious Groups,” Dec. 5, 2012, available at 

http://uss.tufts.edu/studentaffairs/handbook /SRGrecognition.asp (last visited March 8, 2013). 

29 University of Florida “Student Organization Registration Policy Update,” p. 12 available at

https://www.studentinvolvement.ufl.edu/Portals/1/Documents/Organizations/Handbooks/Student%20Org%

20Handbook%202011-2012.pdf (last visited March 8, 2013). 

30 University of Texas “New Student Organization Application,” available at 

http://deanofstudents.utexas.edu/sa/downloads/New_Org_App.pdf (last visited March 8, 2013). 
Panelists’ Written Statements 185 

where the organization’s activities center on a set of core beliefs.”31 The University of 

Minnesota provides: “Religious student groups may require their voting members and officers to 

adhere to the organization’s statement of faith and its rules of conduct.”32 By demonstrating 

that nondiscrimination policies and religious liberty are eminently compatible, such model 

policies create university environments in which nondiscrimination principles and religious 

liberty harmoniously thrive. 

The treatment of religious students is important not only for the students threatened with 

exclusion, and not only to preserve a diversity of ideas on college campuses, but also because 

the lessons taught on college campuses about the First Amendment spill over into our broader 

civil society.33 Those who insist that we must choose between religious liberty and 

nondiscrimination policies in reality are demanding a zero-sum game in which religious 

liberty, nondiscrimination principles, and pluralism ultimately all lose. 

Religious student organizations enhance campus diversity in myriad ways by contributing to 

the religious, philosophical, cultural, social, and ethnic “marketplace of ideas” on campus. 

But this diversity is threatened when university administrators ban religious student 

organizations from campus because they exercise the basic religious liberty to require their 

leaders to agree with their religious beliefs. 

For the past forty years, some college administrators have tried to exclude religious student 

groups from campus.34 From the mid-1970s to the mid-1990s, the Establishment Clause 

was the justification given for excluding religious student groups. Administrators claimed that 

the Establishment Clause would be violated if they allowed religious groups to meet in empty 

classrooms on campus. But in 1981,35 and again in 1995,36 the Supreme Court ruled that 

 

31 University of Houston “Organizations Policies,” § 2.4 (a) (3), available at http://www.uh.edu/dos/pdf/2011-

2012StudentHandbook.pdf (last visited March 8, 2013). 

32 University of Minnesota “Constitution and By-Laws Instructions” in Student Groups Official Handbook, available 

at http://sua.umn.edu/groups/handbook/constitution.php (last visited March 8, 2013). 

33 For example, a federal appellate judge opined that New York City might consider denying a church access to 

public school auditoriums on weekends, to which other community groups had access, because its meetings might 

not be “open to the general public” if the church reserved communion to baptized persons. Bronx Household v. Bd. of 

Education, 492 F.3d 89, 120 (2d Cir. 2007) (Leval, J., concurring). 

34 The technical term for excluding student groups from campus is to “deny them recognition.” To be an official 

student group on campus, the group must “register” or “be recognized” by the administration as an official student 

group. “Recognition” as a student group allows a student group to reserve meeting space for meetings and 

activities, publicize meetings through campus channels of communication, attract new members through the 

organizational fair in the fall, and apply for funding to bring speakers to campus. Practically speaking, without 

recognition, a student organization cannot exist on campus. Large universities have several hundred student 

groups. The Ohio State University, for example, has over 1000 recognized student organizations. See 

http://ohiounion.osu.edu/get_involved/student_organizations (last visited March 8, 2013). 

35 Widmar v. Vincent, 454 U.S. 263 (1981) (religious student groups have free speech and free association rights to 

meet on public university campus, and such meetings do not violate the Establishment Clause). 
186 Peaceful Coexistence Report 

the Establishment Clause was not violated by religious groups meeting on campus. Instead, 

the Court held that the freedoms of speech and association protected religious groups’ right to 

meet on campus. 

Universities’ nondiscrimination policies then became a new justification for excluding 

religious student groups from campus. Asserting it was “religious discrimination,” some 

administrators told religious groups they could not require their leaders to agree with their 

religious beliefs.37

But it is common sense - not discrimination - for religious groups to choose leaders who 

agree with their religious beliefs. It is religious liberty - not discrimination - that protects 

religious groups’ ability to choose leaders who agree with their religious beliefs. The 

leadership of any organization affects its ability to carry out its mission. Particularly true for 

religious groups, leaders conduct the Bible studies, guide the prayers, and facilitate the worship 

at religious groups’ meetings. To expect the person conducting the Bible study to believe that 

the Bible reflects truth seems obvious. To expect the person leading prayer to believe in the 

God to whom she is praying seems reasonable. Both are a far cry from wrongful 

discrimination. 

Yet some university administrators woodenly characterize these common sense expectations 

as “religious discrimination.” For example, last year, Vanderbilt University denied recognition 

to a Christian Legal Society student chapter because the students expected their leaders to 

lead Bible study, prayer, and worship, and to affirm that they agreed with the group’s core 

religious beliefs.38 Vanderbilt University demanded that another Christian group delete five 

words from its leadership requirements if it wanted to remain on campus: “personal 

commitment to Jesus Christ.”39 In the end, Vanderbilt University forced fourteen Catholic 

and evangelical Christian student groups from campus.40 While Vanderbilt refused to allow 

 36 Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (religious student group’s freedom of speech was 

violated when the university denied it access to student activity fee funding for the printing costs of its evangelical 

magazine, and the Establishment Clause would not be violated by the University paying $5,862 toward those 

printing costs).

37 See Michael Stokes Paulsen, A Funny Thing Happened on the Way to the Limited Public Forum:

Unconstitutional Conditions on “Equal Access” for Religious Speakers and Groups, 29 U.C. Davis L. Rev. 653, 668-

72 (1996) (detailing University of Minnesota’s threat to derecognize CLS chapter); Stephen M. Bainbridge, 

Student Religious Organizations and University Policies Against Discrimination on the Basis of Sexual Orientation: 

Implications of the Religious Freedom Restoration Act, 21 J.C. & U.L. 369 (1994) (detailing University of Illinois’ 

threat to derecognize CLS chapter). 

38 See Attachment A (also available at https://www.clsnet.org/document.doc?id=456 (last visited March 8, 2013)). 

39 See Attachment B (also available at http://www.clsnet.org/document.doc?id=455 (last visited March 8, 2013)). 

40 The excluded groups are: Asian-American Christian Fellowship; Baptist Campus Ministry; Beta Upsilon Chi; 

Bridges International; Campus Crusade for Christ (CRU); Christian Legal Society; Fellowship of Christian 

Athletes; Graduate Christian Fellowship; Lutheran Student Fellowship; Medical Christian Fellowship; Midnight 

Worship; The Navigators; St. Thomas More Society; and Vanderbilt + Catholic. 
Panelists’ Written Statements 187 

religious groups to have religious leadership requirements, it specifically announced that 

fraternities and sororities could continue to engage in sex discrimination in their selection of 

both leaders and members.41

Religious groups’ ability to choose their leaders is the most basic of religious liberties. 

Last year, the Supreme Court unanimously protected the right of religious institutions to 

choose their leaders despite the federal government’s claim that their decisions violated federal 

nondiscrimination laws. In Hosanna-Tabor Evangelical Lutheran Church and School v. 

EEOC,42 the Court rejected the government’s argument that nondiscrimination laws could be 

used to second-guess religious associations’ leadership decisions. The Supreme Court 

acknowledged that nondiscrimination laws are “undoubtedly important. But so too is the 

interest of religious groups in choosing who will preach their beliefs, teach their faith, and 

carry out their mission.”43 Religious leaders “personify” a religious group’s beliefs and 

“shape its own faith and mission.”44 In their concurrence, Justice Alito and Justice Kagan 

stressed that “[r]eligious groups are the archetype of associations formed for expressive 

purposes, and their fundamental rights surely include the freedom to choose who is qualified 

to serve as a voice for their faith.”45

These same considerations are true for student religious groups when they choose the leaders 

who will speak on their behalf to the campus community and lead the Bible study, prayer, and 

worship at their meetings. In perhaps the most cogent legal analysis of the reason 

nondiscrimination policies, when misused, impose a particular burden on religious student 

groups, Seventh Circuit Judge Kenneth Ripple has explained: 

Under this [nondiscrimination] policy, most clubs can limit their membership to those who 

share a common purpose or view: Vegan students, who believe that the institution is not 

accommodating adequately their dietary preferences, may form a student group restricted to 

vegans and, under the policy, gain official recognition. Clubs whose memberships are defined 

by issues involving “protected” categories, however, are required to welcome into their ranks 

 

41 Colleges frequently invoke Title IX’s exemption for fraternities and sororities to justify their unequal treatment 

of religious groups compared to Greek groups. But that response is a red herring. Title IX gives fraternities and 

sororities an exemption only from Title IX itself, which prohibits sex discrimination in higher education. It does 

not give fraternities and sororities a blanket exemption from all nondiscrimination laws or policies, including a 

university’s own nondiscrimination policy or an all-comers policy. If a university exempts fraternities and sororities 

from their nondiscrimination policies, they must also exempt religious groups. See Christian Legal Society v. 

Martinez, 130 S.Ct. 2971, 2993, 2995 (2010); cf., Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 

520, 545-46 (1993). 

42 132 S.Ct. 694 (2012). 

43 Id. at 710. 

44 Id. at 706. 

45 Id. at 713 (Alito, J., concurring). 
188 Peaceful Coexistence Report 

and leadership those who do not share the group's perspective: Homosexual students, who 

have suffered discrimination or ostracism, may not both limit their membership to 

homosexuals and enjoy the benefits of official recognition. The policy dilutes the ability of 

students who fall into “protected” categories to band together for mutual support and 

discourse. 

For many groups, the intrusive burden established by this requirement can be assuaged 

partially by defining the group or membership to include those who, although they do not share 

the dominant, immutable characteristic, otherwise sympathize with the group's views. Most 

groups dedicated to forwarding the rights of a “protected” group are able to couch their 

membership requirements in terms of shared beliefs, as opposed to shared status. 

Religious students, however, do not have this luxury—their shared beliefs coincide with their 

shared status. They cannot otherwise define themselves and not run afoul of the 

nondiscrimination policy... The Catholic Newman Center cannot restrict its leadership—those 

who organize and lead weekly worship services—to members in good standing of the Catholic 

Church without violating the policy. Groups whose main purpose is to engage in the 

exercise of religious freedoms do not possess the same means of accommodating the heavy 

hand of the State.

The net result of this selective policy is therefore to marginalize in the life of the institution 

those activities, practices and discourses that are religiously based. While those who 

espouse other causes may control their membership and come together for mutual support, 

others, including those exercising one of our most fundamental liberties—the right to free 

exercise of one's religion—cannot, at least on equal terms. 

Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 805-806 (9th Cir. 2011) (Ripple, J., 

concurring) (emphasis added), cert. denied, 132 S.Ct. 1743 (2012). 

By insisting that religious groups abandon their religious belief requirements for their leaders, 

university administrators effectively demand that religious groups recant their basic religious 

beliefs. No starker illustration can be found than Vanderbilt University telling a Christian group 

that it could remain a recognized student group only if it deleted “personal commitment to 

Jesus Christ” from its constitution.46 This is something that many faithful Christian groups 

will not do. It is not that they are unable to recant - deleting a few words is not that difficult. 

It is that Christians view recanting religious beliefs as the equivalent of overtly denying God. 

Over the past two millennia, millions of Christians have suffered great hardship rather than 

recant their faith. In comparison, forfeiting access to campus may seem a small thing. But it 

 

46 See Attachment B, (also available at http://www.clsnet.org/document.doc?id=455 (last visited March 8, 2013). 
Panelists’ Written Statements 189 

is still fundamentally wrong for university authorities to demand that religious students choose 

between recanting their religious beliefs and remaining on campus. 

Of course, when university administrators are also government officials, as are public 

university administrators, then the government itself is making the demand. If the First 

Amendment does not protect in this situation, what is left of religious liberty? Public 

school students faced an analogous situation when they were expelled during World War II 

for refusing to salute the flag because they believed they would thereby violate the Second 

Commandment.47 In ruling for the students, the Supreme Court’s words seem particularly 

apt to a discussion of the protection of both religious liberty and nondiscrimination values: 

[F]reedom to differ is not limited to things that do not matter much. That would be a mere 

shadow of freedom. The test of its substance is the right to differ as to things that touch 

the heart of the existing order. If there is any fixed star in our constitutional constellation, it 

is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, 

religion, or other matters of opinion or force citizens to confess by word or act their faith 

therein. If there are any circumstances which permit an exception, they do not now occur to 

us.48

Religious liberty must be reinforced on university campuses. The “right to religious freedom” 

must not be redefined to mean the “right to recant.” Religious freedom must remain the right 

to hold traditional religious beliefs without fear of expulsion from the public square. 

When Religious Groups Require Their Leaders to Share Their Religious Beliefs, They Are 

Exercising Their Religious Liberty, Not Discriminating. 

A. The label of “discrimination,” or the “Scarlet D,” must be affixed carefully.

To our society’s credit, affixing the label of “discrimination” to an action immediately casts 

that action as bad and intolerable. For that reason, the push to recast as “discrimination” 

religious groups’ right to have religious leadership requirements must be carefully weighed (and 

ultimately rejected) if religious liberty and pluralism are to survive in our society. “It is 

tempting and common, but potentially misleading and distracting, to attach the rhetorically 

and morally powerful label of ‘discrimination’ to decisions, conduct, and views whose 

wrongfulness has not (yet) been established.”49

 

47 West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 629 (1942). 

48 Id. at 642. 

49 Richard W. Garnett, Religious Freedom and the Nondiscrimination Norm, ch. 4 in Austin Surat, ed., Legal 

Responses to Religious Practices in the United States 194, 197 (Cambridge University Press, 2012). A summary of 

Professor Garnett’s article is found at Richard W. Garnett, Confusion about Discrimination, The Public Discourse, 

Apr. 5, 2012, available at http://www.thepublicdiscourse.com/2012/04/5151/. 
190 Peaceful Coexistence Report 

When school administrators impose a “Scarlet D” on religious groups for being openly 

religious, great damage is done to religious liberty and pluralism. But damage is also done to 

the equality and nondiscrimination principles that those applying the label claim to advance. 

A constitutional scholar recently explained that “overenthusiastic or insufficiently deliberate 

campaigns against ‘discrimination,’ in the name of ‘equality,’ can conflict with or even 

undermine the fundamental and core idea of liberal, constitutional, and, therefore, limited 

government.”50 To force an unnecessary and false dichotomy between nondiscrimination 

policies and religious liberty is likely to diminish religious citizens’ support for 

nondiscrimination policies generally. Because it is possible to have strong nondiscrimination 

policies and religious liberty, the better approach is to facilitate both, rather than demand that 

religious liberty lose. 

Instructively, the Supreme Court itself “decline[s] to construe” federal laws “in a manner that 

could in turn call upon the Court to resolve difficult and sensitive questions arising out of the 

guarantees of the First Amendment Religion Clauses.”51 College administrators would do 

well to follow the Supreme Court’s example of restraint and interpret university policies, 

which are hardly on par with federal laws, to avoid “difficult and sensitive questions arising out 

of the guarantees of the First Amendment Religion Clauses.” This is particularly true when 

the common sense interpretation of nondiscrimination policies avoids the dilemma altogether. 

It is common sense, not “religious discrimination,” for religious groups to have religious 

leadership criteria. 

To begin, “[i]t is not ‘discrimination’ that is wrong; instead, it is wrongful discrimination that is 

wrong.”52 “’Discrimination,’ after all, is another word for discernment, and for choosing and 

acting in accord with or with reference to particular criteria.”53 To label something 

“discrimination” is not the end of the matter, but merely the beginning of the inquiry because: 

When we say that ‘discrimination’ is wrong, what we actually mean is that wrongful 

discrimination is wrong, and when we affirm that governments should oppose it we mean 

that governments should oppose it when it makes sense, all things considered, and when it is 

within their constitutionally and morally limited powers, to do so.54

The essential common sense of the matter renders it self-evident that the government should 

not infringe religious liberty by wrongly invoking the label of “discrimination” when religious 

 

50 Garnett statement, supra n. 32 at 198. 

51 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979). 

52 Garnett statement, supra n. 32 at 197. 

53 Id. 

54 Garnett statement, supra n. 32 at 198. 
Panelists’ Written Statements 191 

groups confine their leadership to those who share their faith.55 Religious groups need leaders 

who agree with the group’s basic beliefs regarding the Bible, prayer, worship, mission, and 

message. Leaders exemplify the group’s mission and articulate the group’s message to the 

broader campus community. A religious group’s leaders necessarily guide the group’s distinctive 

religious practices, including worship, prayer, study of scripture, and service to others. Leaders are 

the group’s primary voice, both internally to its members and externally to the University 

community. A committed leader can determine whether a group thrives or withers. 

For centuries, religious groups’ right to control the selection of their leaders has been crucial 

to securing religious liberty for all. “The ultimate authority of religious organizations to 

select and supervise their leaders has been vital to the development of institutional religious 

freedom.”56 From “the investiture controversy of the eleventh and twelfth centuries, in which 

popes and monarchs fought over who would have the authority to appoint Catholic bishops”57

to President Thomas Jefferson’s letter to the Ursuline Sisters of New Orleans, assuring the 

religious order that “the Louisiana Purchase would not undermine their legal rights,” including 

the order’s right “’to govern itself according to its own voluntary rules without interference 

from the civil authority,’” religious groups’ ability to be free to choose their leaders has been a 

basic component of religious liberty.58

The Supreme Court’s jurisprudence has long protected the ability of religious institutions to 

select their leaders according to their own religious criteria.59 A year ago, the Supreme Court 

unanimously protected the right of religious institutions to choose their leaders despite the 

federal government’s claim that their decisions violated federal nondiscrimination laws. In 

 

55 Professor Garnett identifies several factors that should be considered in assessing whether action constitutes 

“wrongful” discrimination, including: 

Who is the decision maker? Who are the affected parties? What is the criterion for decision? How will the 

decision, and others like it, affect our ability to respect and vindicate other goods? How costly would it be to 

regulate or try to prohibit such decisions? Is the social meaning of the particular decision in question such 

that it belies the principle that people are of equal ultimate worth, or is it something else? And, is the decision 

one that a limited state in a free society has the authority to supervise? 

Garnett statement, supra n. 32 at 199 (quotation marks omitted). 

56 Thomas C. Berg, Kimberlee Wood Colby, Carl H. Esbeck, Richard W. Garnett, Religious Freedom, Church-State 

Separation, and the Ministerial Exception, 106 Nw. U. L. Rev. Colloquy 175, 179 (2011). See id. at 179-184 

(detailing the dominant role played by church-state struggles over control of religious institutions’ leadership in the 

development of religious liberty in Europe and America). See Hosanna-Tabor Evangelical Lutheran Church and 

School v. EEOC, 132 S.Ct. 694, 702-704 (2012) (tracing similar history). 

57 Id. at 179. 

58 Id. at 182-83 (quoting Thomas Jefferson’s letter, as quoted in 1 Anson Phelps Stokes, Church and State in the 

United States 478, 678 (1950)). 

59 See, e.g., Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); Kedroff v. Saint Nicholas Cathedral of 

the Russian Orthodox Church, 344 U.S. 94 (1952); Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1 

(1929). 
192 Peaceful Coexistence Report 

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,60 the Court rejected the 

government’s argument that nondiscrimination laws may be used to second-guess religious 

institutions’ leadership decisions. Rejecting the government’s “untenable” position that the 

Religion Clauses do not protect such decisions, the Court stressed that “the text of the First 

Amendment itself . . . gives special solicitude to the rights of religious organizations” and 

rejected the government’s “remarkable view that the Religion Clauses have nothing to say 

about a religious organization’s freedom to select its own ministers.”61 The Court agreed that 

religious leaders “personify” a religious group’s beliefs and “shape its own faith and 

mission.”62 In their concurrence, Justice Alito and Justice Kagan stressed that “[r]eligious 

groups are the archetype of associations formed for expressive purposes, and their 

fundamental rights surely include the freedom to choose who is qualified to serve as a voice 

for their faith.”63 Because religious groups’ “very existence is dedicated to the collective 

expression and propagation of shared religious ideals,” [w]hen it comes to the expression and 

inculcation of religious doctrine, there can be no doubt that the messenger matters.”64 Obviously, 

“[a] religion cannot depend on someone to be an effective advocate for its religious vision if 

that person’s conduct fails to live up to the religious precepts that he or she espouses.”65

Most relevant to the subject of the briefing, the Supreme Court acknowledged that 

nondiscrimination laws are “undoubtedly important. But so too is the interest of religious groups 

in choosing who will preach their beliefs, teach their faith, and carry out their mission.”66 

Concluding that “the First Amendment has struck the balance,” the Supreme Court ruled that 

“[t]he church must be free to choose those who will guide it on its way.”67 Likewise, in 

their concurrence, Justice Alito and Justice Kagan affirmed the importance of 

nondiscrimination laws, yet came down on the side of religious groups’ ability to choose their 

leaders without interference: 

[W]here the goal of the civil law in question, the elimination of discrimination against 

persons with disabilities, is so worthy - it is easy to forget that the autonomy of religious 

groups, both here in the United States and abroad, has often served as a shield against 

oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that 

 

60 132 S.Ct. 694 (2012). 

61 Id. at 706. 

62 Id. 

63 Id. at 706 & 713 (Alito, J., concurring). 

64 Id. at 712-13 (Alito, J., concurring). 

65 Id. at 713 (Alito, J., concurring). 

66 Id. at 710. 

67 Id. at 710. 
Panelists’ Written Statements 193 

the Religion Clauses protect a private sphere within which religious bodies are free to govern 

themselves in accordance with their own beliefs.68

Federal and state nondiscrimination laws typically protect religious organizations’ ability 

to choose their leadership on the basis of religious belief. 

Of course, no federal or state law, regulation, or court ruling requires a college to adopt a 

policy that prohibits religious groups from having religious criteria for their leaders and 

members. Instead, federal and state nondiscrimination laws typically protect religious 

organizations’ ability to choose their staff on the basis of their religious beliefs. 

Title VII explicitly provides that religious associations’ use of religious criteria in their 

employment decisions does not violate Title VII’s prohibition on religious discrimination in 

employment. In three separate provisions, Title VII exempts religious associations from its 

general prohibition on religious discrimination in employment. Pursuant to 42 U.S.C. § 

2000e-1(a), Title VII does not apply to religious associations “with respect to the 

employment of individuals of a particular religion to perform work connected with the 

carrying on” of the associations’ activities. Pursuant to 42 U.S.C. § 2000e-2(e) (2), an 

educational institution may “employ employees of a particular religion” if it is controlled 

by a religious association or if its curriculum “is directed toward the propagation of a 

particular religion.” Pursuant to 42 U.S.C. § 2000e-2(e) (1), any employer may hire on the 

basis of religion “in those certain instances where religion ... is a bona fide occupational 

qualification reasonably necessary to the normal operation of that particular business or 

enterprise.” It is hard to imagine a better example of “a bona fide occupational qualification” 

than the requirement that the individual who leads a religious group’s Bible study, worship, and 

prayer agree with the group’s religious beliefs.69

 

68 Id. at 712 (Alito, J., concurring). 

69 Legislative proposals to expand Title VII to include sexual orientation are invariably accompanied by

exemptions for religious groups with conflicting moral views. E.g., Employment Non-Discrimination Act of 

2009, H.R. 3017 § 6. Every state law extending nondiscrimination protections to sexual orientation has some 

exemption for religious groups See Colo. Rev. Stat. §§ 24-34-401(3), 24-34-402(7), 24-34-601(1); Conn. Gen. 

Stat. § 46a-81p; 19 Del. Code § 710(6); D.C. Code § 2-1402.41(3); Haw. Rev. Stat. § 515-4b; 775 Ill. Comp. 

Stat. §§ 5/5-102.1(b), 25/3; Iowa Code §§ 216.6(6)(d), 216.7(2)(a), 216.9(2), 216.12(1)(a); Mass. Gen. Laws 

151B §§ (1)(5), (4); 5 Me. Rev. Stat. §§ 4553(10)(G), 4602; Md. Code, State Gov’t § 20- 604(2); Minn. Stat. § 

363A.26(2); Nev. Rev. Stat. § 613.320; N.H. Rev. Stat. § 354-A:2(XIV-C); N.J. Stat. §§ 10:5-5(n), 10:5-12(a); 

N.M. Stat. § 28-1-9(C); N.Y. Exec. Law § 296(11); Or. Rev. Stat. § 659A.006(3), 

(5); R.I. Gen. Laws §§ 28-5-6(15), 34-37-3(16); 9 Vt. Stat. § 4502(l), 21 Vt. Stat. § 495(e); Wash Rev. Code §§ 

49.60.040(2), (11); Wis. Stat. § 111.337(2) (am). 
194 Peaceful Coexistence Report 

In 1987, the Supreme Court upheld the constitutionality of Title VII’s exemption against an 

Establishment Clause challenge.70 Justice Brennan wrote a concurring opinion in which he 

explained why religious groups need such an exemption: 

We are willing to countenance the [religious group’s] imposition of [a religious] condition 

because we deem it vital that, if certain activities constitute part of a religious community’s 

practice, then a religious organization should be able to require that only members of its 

community perform those activities.71

Justice Brennan insisted that “religious organizations have an interest in autonomy in 

ordering their internal affairs, so that they may be free to... select their own leaders, define 

their own doctrines, resolve their own disputes, and run their own institutions.”72

In Martinez, the Supreme Court Avoided Deciding the Issue of Nondiscrimination Policies. 

The Martinez decision is narrowly limited to a unique factual context of an “all-comers 

policy,” not a nondiscrimination policy.

The holding and scope of the Supreme Court’s narrow decision in Martinez is easily 

misunderstood. In Martinez, the Court explicitly did not decide whether an enumerated 

nondiscrimination policy could be used to penalize the religious students it is supposed to 

protect. 73

The Court narrowly, and conspicuously, confined its decision to an unusual policy, unique to 

Hastings College of the Law, that required all student groups to allow any student to be a 

member and leader of the group, regardless of whether the student agreed with—or actively 

opposed—the values, beliefs, or speech of the group.74 Moreover, the Court held it was not 

 

70 Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). 

71 Id. at 342-43 (Brennan, J., concurring). 

72 Id. at 341-42 (quotation marks and punctuation omitted). 

73 Commenting on Martinez, a senior vice president and general counsel for claims management at United

Educators Insurance, who is “a prominent adviser to colleges on issues related to legal risk,” cautioned

university counsel that they should “not be lulled into thinking their policies on student groups are immune to legal 

challenges based on the U.S. Supreme Court’s decision.” According to The Chronicle for Higher Education: 

The ruling ... focused on a type of policy ... found at only a minority of colleges: an “accept all comers” policy 

requiring any student group seeking official recognition to be open to anyone who wishes to join. More common 

at colleges ... is a policy of allowing student groups to have requirements for membership and leadership as 

long as those requirements are not discriminatory. 

Peter Schmidt, Ruling Is Unlikely to End Litigation over Policies on Student Groups, Chron. Higher Educ. (June 30, 

2010) available at http://chronicle.com/article/Many-Colleges-Student-Group/66101/ (last visited March 8, 2013). 

74 Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez,

130 S.Ct. 2971, 2982, 2984 (2010); id. at 2999 (Kennedy, J., concurring). 
Panelists’ Written Statements 195 

enough for a university to adopt an all-comers policy: the policy must actually be uniformly 

applied to all student groups.75

The decision explicitly does not apply to conventional nondiscrimination policies that prohibit 

discrimination on the basis of enumerated, protected classes, which are commonly found at 

most universities. Writing for the majority, Justice Ginsburg emphasized that “[t]his opinion, 

therefore, considers only whether conditioning access to a student organization forum on 

compliance with an all-comers policy” is permissible and does not address a written 

nondiscrimination policy that protects specific, enumerated classes.76 Justice Ginsburg 

emphasized that the policy under review was “one requiring all student groups to accept all 

comers.”77

Instead, in Martinez, four Supreme Court justices explicitly determined that a 

nondiscrimination policy cannot be constitutionally applied to religious groups’ choice of 

leaders and members.78 These justices explained that such an application of a 

nondiscrimination policy would be unconstitutional viewpoint discrimination. Justice 

Stevens, who retired the day Martinez was announced, was the only justice who expressed the 

view that a written nondiscrimination policy could be constitutionally applied to religious 

student groups’ selection of leaders, in a concurrence that began by observing that the Court 

“confines its discussion to the narrow issue” of the all-comers policy.79 In his concurrence, 

Justice Kennedy emphasized that the decision was only concerned with an all-comers 

policy.80

As explained in more detail below, Martinez also makes clear that an all-comers policy is 

unconstitutional if it is not applied uniformly to every student group on campus.81 An allcomers policy must be applied to all student groups’ membership and leadership criteria.

The Martinez decision requires no change in any college’s policy. The decision merely 

permitted a law school the discretion to adopt a novel policy, the wisdom of which has 

 

75 Id. at 2995. The Court remanded the case on that issue. 

76 Id. at 2984 (emphasis added). 

77 Id. at 2993 (original emphasis). See Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 795 (9th Cir. 2011), 

citing Martinez, 130 S.Ct. at 2982, 2984 (the Supreme Court in Martinez “expressly declined to address whether 

[its] holdings would extend to a narrower nondiscrimination policy that, instead of prohibiting all membership 

restrictions, prohibited membership restrictions only on certain specified bases, for example, race, gender, religion, 

and sexual orientation”); see also, Id. at 805 (Ripple, J., concurring) (“this case is not controlled by the 

majority opinion in Christian Legal Society”; the Supreme Court “explicitly reserved” the issue in Martinez). 

78 130 S.Ct. at 3009-13 (2010) (Alito, J., dissenting, joined by Roberts, C.J., Scalia, J., and Thomas, J.). 

79 Id. at 2995 (Stevens, J., concurring). 

80 Id. at 2999 (Kennedy, J., concurring). 

81 130 S.Ct. at 2995 (remanding to determine whether “Hastings selectively enforces its all-comers policy”). 
196 Peaceful Coexistence Report 

been widely questioned. The majority noted that “the advisability of Hastings’ policy does not 

control its permissibility.”82 For instance, the fact that Hastings was a law school, as opposed 

to a university, meant that Hastings need not consider the effect of its “all-comers policy” on 

the wide array of groups that most universities have on campus, particularly fraternities and 

sororities.83

Misuse of a nondiscrimination policy to prohibit religious groups’ religious leadership 

criteria creates viewpoint discrimination.

In Martinez, four Supreme Court justices would have found that a nondiscrimination policy 

cannot be constitutionally applied to religious groups’ choice of leaders and members.84 These 

justices explained that such an application of a nondiscrimination policy would be 

unconstitutional viewpoint discrimination. 

To prohibit religious groups from adopting criteria for leaders related to the goals of the 

organization and purposes of the activities, while allowing other student groups to do so, is 

unconstitutional viewpoint discrimination and violates the students’ free speech rights. 

Essentially, the University violates its own nondiscrimination policy if it prohibits religious 

student organizations from having leadership requirements that reflect their religious viewpoints, 

while it allows nonreligious student groups to have leadership requirements that reflect their 

nonreligious viewpoints. Just as the Democratic Students Association wants its leaders to agree 

with the Democratic Party’s platform, and the Animal Rights Club wants its leaders to commit to 

veganism, many religious groups believe that it is essential for expression of their religious identities 

that their officers agree with their religious beliefs. In other words, the right of religious groups to be 

religious depends on their ability to have leaders who are committed to their religious beliefs. 

The Seventh Circuit held that a university’s application of a nondiscrimination policy to a 

religious student group was unconstitutional, stating it had “no difficulty concluding that [a 

university’s] application of its nondiscrimination policies in this way burdens CLS's ability to 

express its ideas.”85 The Second Circuit held that the Equal Access Act requires a public 

secondary school to recognize a religious student group despite its religious leadership 

criteria.86 In so holding, the Second Circuit relied heavily on First Amendment precedent to 

reach its conclusion. The Ninth Circuit reached a different result and allowed application of 

a nondiscrimination policy to religious groups; however, the panel believed it was bound by a 

 

82 Id. at 2992. 

83 An all-comers policy’s inherent incompatibility with fraternities and sororities is discussed infra at Part IV.B. 

84 Id. at 3009-13 (2010) (Alito, J., dissenting, joined by Roberts, C.J., Scalia, J., and Thomas, J.). 

85 Christian Legal Society v. Walker, 453 F.3d 853, 863 (7th Cir. 2006). 

86 Hsu v. Roslyn Union Free Sch. Dist., 85 F.3d 839 (2d Cir. 1996). 
Panelists’ Written Statements 197 

prior Ninth Circuit decision.87 It remanded the case for a determination whether the policy had 

been uniformly applied to all groups. 

In perhaps the most cogent legal analysis of the reason nondiscrimination policies, when misused, 

impose a particular burden on religious student groups, Seventh Circuit Judge Kenneth Ripple 

explained that nonreligious groups can redefine themselves to form around shared values, 

but religious groups cannot do this because their shared values are religious values, which 

some administrators will mislabel as “religious discrimination.”88

An All-comers Policy Is Unworkable and Undermines Nondiscrimination Values.

An “all-comers” policy may be applied to religious groups only if the University applies the 

policy to all groups without exception. 

There are numerous reasons why an all-comers policy is bad policy and unworkable. As 

Martinez itself explains, “the advisability of Hastings’ policy does not control its 

permissibility.”89

The Court held that it was not enough for a university to adopt an all-comers policy: a 

university must actually apply the policy uniformly, without exception, to all student 

groups.90 Martinez is unequivocal that if a University allows any exemption to its all-comers 

policy, it cannot deny an exemption to a religious group.91 Indeed, the Court remanded the 

Martinez case for further consideration of whether the all-comers policy had been uniformly 

or “selectively enforce[d].”92 Justice Ginsburg emphasized that the policy under review was 

“one requiring all student groups to accept all comers.”93

Therefore, even if a university were to adopt an all-comers policy, it could not deny a 

religious group an exemption for religious leadership requirements if the university allowed 

any exemption to its policy.94 As the Court has long ruled, the government cannot deny 

religious groups an exemption for certain conduct while granting nonreligious groups an 

exemption for similar conduct. “[I]n circumstances in which individualized exemptions from 

a general requirement are available, the government ‘may not refuse to extend that system to 

 

87 Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011), cert. denied, 132 S.Ct. 1743 (2012). 

88 Id. at 804-05 (Ripple, J., concurring). Judge Ripple’s reasoning is quoted at length supra at pp. 7-8. 

89 130 S.Ct. at 2992. 

90 Id. at 2995. 

91 Id. at 2995; id. at 2999 (Kennedy, J., concurring). 

92 Id. at 2995. 

93 Id. at 2993 (original emphasis). 

94 Id. at 2993. 
198 Peaceful Coexistence Report 

cases of “religious hardship” without compelling reason.’”95 Such a discrepancy triggers strict 

scrutiny of the government’s denial of the exemption to the religious group.96

Of course, this is precisely why “all-comers” policies are rare: they must be applied 

without exception to all student groups. In Martinez itself, the Court hardly endorsed an 

“all-comers” policy when it observed that “the advisability of Hastings’ policy does not 

control its permissibility.”97

Single-sex sororities and fraternities, a cappella groups, and intramural sports teams are 

incompatible with an all-comers policy.

The Martinez facts were unusual, not only because of the unique all-comers policy, but also 

because the school at issue was a stand-alone law school and not a major university. The law 

school did not need to weigh the impact of an all-comers policy on single-sex sororities and 

fraternities, a cappella groups, and club sports teams. If an all-comers policy were 

implemented, the University would have to abandon its current exemption for fraternities 

and sororities to select members according to sex. Besides ending selection of members and 

leaders on the basis of sex, an all-comers policy would require fraternities and sororities to 

adopt a “first-come, first-pledge” selection process because all groups must be open to all 

students. The Greek system is the antithesis of an all-comers policy, based as it is on 

selection of members through the highly subjective “rush” system. 

Colleges frequently invoke Title IX’s exemption for fraternities and sororities, but that response 

is a red herring. Title IX gives fraternities and sororities an exemption only from Title IX itself, 

which prohibits sex discrimination in higher education.98 It does not give fraternities and 

sororities a blanket exemption from all nondiscrimination laws or policies, including a 

university’s own nondiscrimination policy or an all-comers policy. 

An all-comers policy undermines the very protection for minority groups that 

nondiscrimination policies are intended to provide. 

In a remarkably candid PBS interview, the acting dean of the law school in Martinez 

admitted that its all-comers policy required an African-American student group to admit white 

 

95 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 537 (1993), quoting Employment Div. v. 

Smith, 494 U.S. 872, 884 (1990). 

96 “[A] law cannot be regarded as protecting an interest ‘of the highest order’ when it leaves appreciable damage to 

that supposedly vital interest unprohibited.” Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 

418, 433 (2006), quoting Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 508 U.S. 520, 547 (1993) 

(quotation marks and ellipses omitted). 

97 130 S.Ct. at 2992 (original emphasis). 

98 20 U.S.C. 1681-1688 (2013). 
Panelists’ Written Statements 199 

supremacists as members.99 At oral argument, its counsel conceded that an all-comers policy 

would allow exclusion of Orthodox Jewish groups or Muslim groups, if their traditional 

practices were deemed to be “discriminatory.”100 Thus, the groups most likely to be harmed 

by an all-comers policy are the very groups - minority racial, ethnic, or religious groups - that a 

conventional nondiscrimination policy is intended to protect. 

An all-comers policy eviscerates all university students’ First Amendment rights. 

An all-comers policy erases all student groups’ freedom of expression to require their leaders 

to agree with their specific goals, values, and speech, a right that most students would wish 

to preserve. The ability of groups to form around a specific goal and mission has fueled most 

great reform movements and is necessary in order to maintain genuine pluralism and diversity 

on campus.101

An all-comers policy compounds university administrators’ administrative difficulties. 

Under an all-comers policy, a university must police the rationale for all decisions made by 

every student group regarding membership and leadership, rather than limiting its concern 

only to decisions that might violate the limited protected categories in a nondiscrimination 

policy. Dissatisfied students could challenge every election outcome on the basis that their 

beliefs were improperly considered by the other students who voted. A student who denies 

global warming could force the Sierra Club to defend itself in administrative proceedings to 

determine whether his or her beliefs were improperly considered by the group in denying the 

student’s bid for its presidency. 

In regard to religious groups, the administrative difficulties are particularly troubling. 

University administrators will need to examine religious groups’ religious practices to respond 

to any claim that a religious group’s traditional practices are “discriminatory.” Examining 

religious groups’ doctrine, however, is not within the province of government officials.102 

Determining that some religious groups’ doctrines are “discriminatory,” but other religious 

groups’ doctrines are not, strikes at the Establishment Clause’s core requirement that the State 

 

99 Christian Legal Society v. Martinez, Religion & Ethics Newsweekly (PBS television broadcast) (Apr. 16, 2010), 

http://www.pbs.org/wnet/religionandethics/episodes/april-16-2010/christian-legal-society-v-martinez/6109/ (last visited 

March 8, 2013). http://www.pbs.org/wnet/religionandethics/episodes/april-16-2010/christian-legal-society-vmartinez/6109.

100 Tr. of Oral Arg. 44, available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1371.pdf 

(last visited March 8, 2013). 

101 See, e.g., Adam Goldstein, Supreme Court’s CLS Decision Sucker-Punches First Amendment, The Huffington Post 

(June 29, 2010) at http://www.huffingtonpost.com/adam-goldstein/supreme-courts-clsdecisi_b_628329.html?view=print (last visited March 8, 2013). 

102 Thomas v. Review Board, 450 U.S. 707 (1981). 
200 Peaceful Coexistence Report 

not favor some religious beliefs over other religious beliefs.103 To save its policy, Hastings’ 

counsel claimed that groups might impose tests on membership and, therefore, a religious 

group could require applicants to pass a Bible test—but only “[i]f it were truly an 

objective knowledge test.”104 A policy that envisions university officials determining 

whether a religious group’s knowledge test is “objective” or “subjective” is a constitutional 

quagmire.

An all-comers policy exposes the University to lawsuits because consistent enforcement is 

nearly impossible. 

Any student can insist that the University review his or her exclusion from any group for any 

reason, with a lawsuit dangling over each administrative review. Indeed, Martinez places the 

burden on university administrators to ensure that the policy is not used by students to change 

the message or mission of any group.105 The Court provided no practical guidance for 

administrators as to how to carry out a task that seems inherently to contradict the basic concept 

of an all-comers policy. 

Even as a limited decision, Martinez is incompatible with the Supreme Court’s traditional 

First Amendment jurisprudence. 

Martinez’s departure is so sharp, and its analysis so superficial, that its viability seems 

doubtful, even on the very narrow issue that it decided. Whether or not Martinez was correctly 

decided has no bearing on whether nondiscrimination policies and religious liberty are 

compatible. Yet, it is worth noting that the Martinez majority opinion has been criticized on 

a number of grounds.106 In fundamental ways, the opinion departed from forty-years of 

 

103 Larson v. Valente, 456 U.S. 228 (1982). 

104 Tr. of Oral Arg. 52, available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1371.pdf 

(last visited March 8, 2013). 

105 130 S.Ct. at 3000 (Kennedy, J., concurring) (observing that a group “would have a substantial case on the merits if 

it were shown that the all-comers policy was either designed or used to infiltrate the group or challenge its leadership 

in order to stifle its views”). 

106 See, e.g., John D. Inazu, Justice Ginsburg and Religious Liberty, 63 Hastings L.J. 1213, 1231-1242 (2012); 

John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 5-6, 145-149 (Yale University Press 2012); 

Richard W. Garnett, Religious Freedom and the Nondiscrimination Norm, ch. 4 in Austin Sarat, Legal Responses to 

Religious Practices in the United States: Accommodation and Its Limits 194, 208-211, 219-225 (Cambridge 

University Press 2012); Douglas Laycock, Sex, Atheism, and the Free Exercise of Religion, 88 U. Det. Mercy L. 

Rev. 407, 428-29 (2011); Michael W. McConnell, Freedom by Association, First Things, Aug-Sep2012, at 39-44 

available at http://www.firstthings.com/article/2012/07/freedom-by-association (last visited March 8, 2013); Mary 

Ann Glendon, The Harold J. Berman Lecture Religious Freedom - A Second-Class Right?, 61 Emory L.J. 971, 

978 (2012); Richard Epstein, Church and State at the Crossroads: Christian Legal Society v. Martinez, 2010 

Cato Sup. Ct. Rev. 105 (2010); William E. Thro & Charles J. Russo, A Serious Setback for Freedom: The 

Implications of Christian Legal Society v. Martinez, 261 Ed. Law Rep. 473 (2010); Carl H. Esbeck, Defining 

Religion Down: Hosanna-Tabor, Martinez, and the U.S. Supreme Court, 11 First Amendment Law Review 1 

(2012); Note, Freedom of Expressive Association, 124 Harv. L. Rev. 249 (2010). 
Panelists’ Written Statements 201 

Supreme Court precedent protecting student groups’ free speech and expressive association 

rights on campus.107

The Supreme Court has repeatedly held that universities do not endorse student groups 

and their beliefs when they recognize them: recognition is not endorsement.

As the Supreme Court remarked in Healy v. James, “state colleges and universities are not 

enclaves immune from the sweep of the First Amendment.” 108 For nearly forty years before 

the Martinez decision - since Healy - it has been universally recognized that group rights of 

freedom of speech and association extend to student groups operating on state university 

campuses. 

The Martinez decision deeply conflicts with the Court’s landmark decisions in Healy and in 

Widmar v. Vincent.

109 Both those cases held that campus student groups possess an 

affirmative freedom of speech and expressive association to meet on state university 

campuses, without restriction based on officials’ disapproval of the nature of their associations 

or identities. Healy involved a political group’s associational freedom, while Widmar involved 

a religious group’s religious speech and identity. In each situation, campus officials had 

argued that they possessed the authority to exclude such groups from recognition because of 

the nature and content of the groups’ expressive identity. And in each case, the Court 

rejected the college administrators’ arguments.110

Healy specifically rejected a state university’s claimed authority to deny a student political 

group, Students for a Democratic Society (“SDS”), recognition because of its associational 

identity: “Among the rights protected by the First Amendment is the right of individuals to 

associate to further their personal beliefs.” Accordingly, “denial of official recognition, 

without justification, to college organizations burdens or abridges that associational right.”111 

The Court held that a state university “may not restrict speech or association” of campus student 

groups simply because it considered a particular group’s views, identity, or affiliations to be 

undesirable as a policy matter - indeed, even if it thought a group’s positions “abhorrent.”112

 

107 Adam Goldstein, Supreme Court’s CLS Decision Sucker-Punches First Amendment (June 29, 2010), available at 

http://www.huffingtonpost.com/adam-goldstein/supreme-courts-cls-decisi_b_628329.html (last visited March 6, 

2013). An attorney with the Student Press Law Center, Mr. Goldstein stated that “the rationale of this opinion could 

end up doing more violence to student expression rights than any decision in the last 22 years.” Id.

108 408 U.S. 169, 180 (1972). 

109 454 U.S. 263 (1981). 

110 Healy and Widmar of course stand in the midst of a long line of Supreme Court cases recognizing a broad right of 

expressive association. See Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917, 1923-39 

(2001) (collecting and discussing cases). 

111 Id. 

112 Id. at 187-88 (emphasis added). 
202 Peaceful Coexistence Report 

In Widmar, the Court extended Healy’s recognition of campus groups’ freedom of speech and 

association to religious groups: “With respect to persons entitled to be there, our cases leave 

no doubt that the First Amendment rights of speech and association extend to the campuses 

of state universities.”113 Because “students enjoy First Amendment rights of speech and 

association on the campus,” denial of recognition and use of facilities to student groups, on 

the basis of their religious mission and identity, “must be subjected to the level of scrutiny 

appropriate to any form of prior restraint.”114

The Martinez majority attempted to distinguish Healy and Widmar by treating them as cases 

where the student groups “had been unconstitutionally singled out” for different treatment.115 

Ostensibly, there was no general right of campus student groups to freedom of expressive 

association. But such a distinction is utterly alien to the opinions in Healy and Widmar 

themselves which spoke clearly of students possessing group rights of “speech and 

association,” “on campus,” simply because they were “entitled to be there.”116

But there is an even more dramatic conflict between Martinez, on one hand, and Healy and 

Widmar, on the other. Fundamentally, the central premise of Martinez is entirely 

irreconcilable with the central premise of Healy and Widmar, as well as the underlying 

premise of Good News Club, Rosenberger, Lamb’s Chapel and Mergens.117 Inexplicably, the 

Martinez majority began with the mistaken premise that permitting a student group access 

to a limited forum was “subvention” or “state subsidy” of the group’s expression.118 But 

Martinez’s starting point simply cannot be squared with four decades of caselaw protecting 

student groups’ free speech and expressive association. If access to a speech forum is a 

“state subsidy” of the group’s purposes or identity, then Healy, Widmar, Lamb’s Chapel, 

Rosenberger, Mergens, and Good News Club were all wrongly decided. If a student group’s 

access to meeting space is a state subsidy, then Central Connecticut State College had every 

right to refuse to subsidize the SDS’s advocacy of violence in Healy. And the school 

officials in Widmar, Lamb’s Chapel, Rosenberger, Mergens, and Good News Club were 

absolutely correct that access for religious groups was the equivalent of government subsidy 

of religious speech in violation of the Establishment Clause. But the Court held the exact 

opposite each time. 

 

113 454 U.S. at 268-69 (emphasis added). 

114 Id. at 267 n.5 (citing Healy). 

115 130 S.Ct. at 2987-88. 

116 Widmar, 454 U.S. at 268-69 (emphasis added). Accord Healy, 408 U.S. at 181-182, 184. 

117 Good News Club v. Milford Central School, 533 U.S. 98 (2001); Rosenberger v. Rector & Visitors of the Univ. of 

Virginia, 515 U.S. 819 (1995); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); 

Board of Educ. v. Mergens, 496 U.S. 226 (1990). See also, Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 

753 (1995); Fowler v. Rhode Island, 345 U.S. 67 (1953); Niemotko v. Maryland, 340 U.S. 268 (1951). 

118 130 S.Ct. at 2978, 2986. 
Panelists’ Written Statements 203 

Martinez’s basic construct - that student groups’ access to classroom space and campus 

communication channels is a government subsidy - is a radical departure from Healy, 

Rosenberger, Widmar, Lamb’s Chapel, Mergens, and Good News Club. In Rosenberger, the 

Court stressed that it “did not suggest in Widmar, that viewpoint-based restrictions are proper 

when the University does not itself speak or subsidize transmittal of a message it favors but 

instead expends funds to encourage a diversity of views from private speakers.”119 As the 

Court held, access to meeting space, channels of communication, and student activity fee 

funds was not a government subsidy of the religious student group’s private speech. For 

that reason, the Establishment Clause was not violated by a religious group’s access to meeting 

space, channels of communication, or student activity fee funding.120 The Court made this 

point itself in Rosenberger: “If the expenditure of governmental funds is prohibited 

whenever those funds pay for a service that is, pursuant to a religion-neutral program, 

used by a group for sectarian purposes, then Widmar, Mergens, and Lamb’s Chapel would 

have to be overruled.”121

A troubling aberration, Martinez’s treatment of students’ associational rights conflicts with 

long-established precedent establishing the First Amendment principle that students at state 

universities possess group rights of expression and association, simply by virtue of being 

“entitled to be there” as students. 

The government cannot justify its denial of one group’s expressive association rights by 

wiping out all groups’ expressive association rights.

The decision in Martinez also rested on the mistaken premise that a state university might 

uniformly provide that all campus groups be denied rights of “expressive association” 

traditionally enjoyed by private expressive groups, as an aspect of the university’s restrictions 

on its limited public forum. The religious student group’s right to choose its leaders and 

members could be denied because, and only because, all other student groups’ right to choose 

their leaders and members were denied. 

But the First Amendment usually cannot be evaded so easily. For example, a religious 

speaker challenged Los Angeles International Airport’s policy that banned all First 

Amendment activity in the airport. The Supreme Court unanimously ruled for the religious 

speaker “because no conceivable governmental interest would justify such an absolute 

prohibition of speech.”122 For the same reason, an all-comers policy that bans all student 

 

119 515 U.S. at 834. 

120 Id. at 842-43. 

121 Id. at 843. 

122 Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987). 
204 Peaceful Coexistence Report 

groups from exercising their rights of speech and expressive association should have been a per 

se violation of the First Amendment. 

Healy and Widmar again demonstrate the incorrectness of the Martinez decision. If Martinez 

is correct, all the campus officials in Healy needed to do to keep the SDS off campus was to 

adopt a uniform policy restricting all campus student groups’ freedom of expressive 

association. Under Martinez - quite contrary to Healy - a state university apparently may 

restrict speech and association and does have power to burden the associational right of student 

groups “to associate to further their personal beliefs,” even though Healy holds the 

diametrical opposite.123 All the university need do is impose “neutral” across-the-board 

restrictions on all groups’ expressive association. Likewise, all that the campus officials in 

Widmar needed to do in order to suppress students’ religious meetings was to adopt a 

uniform policy forbidding all student groups from having any ideologically distinctive 

identity. Under Martinez - quite contrary to Widmar - students “enjoy First Amendment rights of 

speech and association on the campus” only to the extent state university officials choose to 

define their limited forum in such a way as to allow such rights, which contradicts both Healy 

and Widmar.124

The Court’s more recent decision in Hosanna-Tabor rejected the basic free exercise 

analysis upon which Martinez relied.

The Court’s decision in Hosanna-Tabor casts serious doubt on the correctness of Martinez’s 

treatment of the free exercise claim. The majority believed that Employment Division v. 

Smith125 “forecloses” a religious student group’s free exercise claim that a state university 

may not penalize a religious group for requiring its leaders to agree with its religious beliefs.126 

In Hosanna-Tabor, however, the Court unanimously distinguished “a church’s selection of its 

ministers” from Smith, which it characterized as “involv[ing] government regulation of only 

outward physical acts.”127 A state university’s use of its nondiscrimination policy to penalize 

a religious student group for insisting its leaders agree with its religious beliefs seems much 

closer to the “government interference with an internal church decision that affects the faith 

and mission of the church itself,” found unconstitutional in Hosanna-Tabor, than to 

“government regulation” of “an individual’s ingestion of peyote,” permitted in Smith. This is 

 

123 408 U.S. at 181. 

124 454 U.S. at 267-68 & n.5. 

125 494 U.S. 872 (1990). 

126 130 S.Ct. at 2995 n.27, 2993 n.24. 

127 132 S.Ct. at 707. 
Panelists’ Written Statements 205 

particularly true given that the Free Exercise Clause provides “special solicitude to the rights 

of religious organizations.”128

Indeed, even without Hosanna-Tabor’s analysis, Martinez’s was incorrect to claim that Smith 

governed. Even under the Smith analysis, the government may not regulate, or discriminate 

against, the exercise of First Amendment rights of expression and association, on the basis 

of the religious nature of such expression or association. The minimum content of the Free 

Exercise Clause is that government must not discriminate against religion specifically and 

regulate conduct specifically because of its religious nature or the religious identity of the 

person or persons engaged in it.129 To exclude religious groups from campus because their 

leadership criteria are religious is discrimination on the basis of religion in violation of Smith 

and Lukumi. 

Conclusion

Religious liberty scholar, Professor Douglas Laycock, recently warned: “For the first time in 

nearly 300 years, important forces in American society are questioning the free exercise of 

religion in principle - suggesting that free exercise of religion may be a bad idea, or at least, a 

right to be minimized.”130 He posits “that the deep disagreements over sexual morality . . . have 

generated a much more pervasive hostility to certain kinds of religion, and this hostility has 

consequences.”131 He counsels against taking a “path [that] causes the very kinds of human 

suffering that religious liberty is designed to avoid,” a path leading to a society in which 

religious persons “who cannot change their mind [about a moral issue] are sued, fined, forced 

to violate their conscience, and excluded from occupations if they refuse.”132

Religious liberty is among America’s most distinctive contributions to humankind. But it is 

fragile, too easily taken for granted and too often neglected. Misuse of university 

nondiscrimination policies poses a serious threat to religious liberty and pluralism - a threat 

easily avoided if nondiscrimination policies are once again given a common sense 

 

128 Id.. 

129 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); Smith, 494 U.S. at 877; 

McDaniel v. Paty, 435 U.S. 618 (1978). 

130 Douglas Laycock, Sex, Atheism, and the Free Exercise of Religion, 88 U. Det. Mercy L. Rev. 407, 407 (2011). 

Other religious liberty scholars are sounding a similar alarm. See, e.g., Daniel O. Conkle, Religious Truth, 

Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty, 32 Cardozo L. Rev. 

1755, 1780 (2011) (“I fear that religious liberty, understood as a distinctive and precious human right, our ‘first 

freedom,’ might become a relic of the past - perhaps a cherished relic, but one that no longer commands a 

contemporary commitment.”); Mary Ann Glendon, The Harold J. Berman Lecture Religious Freedom - A SecondClass Right?, 61 Emory L.J. 971 (2012). 

131 Laycock, supra n. 130, at 414. 

132 Id. at 419. 
206 Peaceful Coexistence Report 

interpretation that protects religious student groups, rather than penalizing them for choosing 

leaders who agree with their religious beliefs. 
Panelists’ Written Statements 207 

Attachment A 

 
208 Peaceful Coexistence Report 

Attachment B 
Panelists’ Written Statements 209 

Attachment C 
210 Peaceful Coexistence Report 

Attachment C 
Panelists’ Written Statements 211 

Attachment C

 
212 Peaceful Coexistence Report 

Attachment C 
Panelists’ Written Statements 213 

Marc O. DeGirolami 

Thank you for the chance to testify before you today. I am an associate professor at St. John’s 

University School of Law. My work focuses on constitutional law, criminal law, and the law of 

religious liberty. 

The subject of our panel concerns the conflict of anti-discrimination norms and civil rights, and 

the specific civil right of our collective focus is the right of religious liberty. My prepared 

remarks divide into two parts.133

The first part considers the importance of studying and, to some extent, preserving the conflicts 

that we are considering. The wish to resolve a conflict sometimes can mask the depth and 

complexity of the conflict. Even more than this, an overeager desire to resolve a conflict can 

obscure the possibility that conflicts are part of every person’s experience, and, perhaps more 

controversially, that justice often does not consist of any sort of large-scale harmonious solution 

or consensus either within an individual or within a polity. The second part reflects on the ways in 

which our law attempts to negotiate around one specific type of conflict between nondiscrimination norms and the right of religious liberty in the doctrine of the ministerial exception, 

which was recently recognized by the United States Supreme Court in Hosanna-Tabor 

Evangelical Lutheran Church and School v. EEOC.

134

Conflict 

We are asked to consider certain types of conflicts—conflicts between and among rights. 

Underlying each of these rights are multiple values. The right of religious liberty includes within 

it the conventional values of liberty, autonomy, and equality, but also less conventional values 

like piety, asceticism, charity, devotion, self-control, fidelity, temperance, patience, and 

obedience. These are only some of the values that religious liberty can help a person or an 

institution to achieve, and therefore only some of the reasons that we should want to protect it as 

a right. It is not possible to understand what is valuable about religious liberty without also, as

Catholic University of America President John Garvey has put it, thinking about what religious 

liberty is valuable for.135

But the values that underwrite the right of religious liberty can and often do intersect and compete 

with others that obtain in the particular social, political, and legal culture. Values against unjust 

discrimination are one such set. And conflicts arise whenever these various values of religious 

 

133 Portions of this testimony are drawn from MARC O. DEGIROLAMI, THE TRAGEDY OF RELIGIOUS 

FREEDOM (Harvard University Press, forthcoming 2013). 

134 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694 (2012). 

135 JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? (Harvard University Press, 1996). 
214 Peaceful Coexistence Report 

liberty clash with other values, so that a decision must be made in favor of some and against 

others. 

Conflicts can occur not only among different types of values, as when a religious organization’s 

autonomy conflicts with the state’s interest in a certain conception of equality, public welfare, or 

health, but also among different values of the same type, as when a religious organization’s 

conception of equality conflicts with the conception of equality contained in, for example, the 

Americans With Disabilities Act (ADA)136 or Title VII of the Civil Rights Act.137 We might be 

able to reach consensus in the abstract that equal treatment means the absence of unjust 

discrimination, but what counts as unjust discrimination is open to an array of conflicting 

interpretations, underwritten by conflicting values.138

It is not the burden of constitutional law conclusively to resolve these conflicts.139 That is because 

the state of being in conflict—the condition of experiencing and living within these kinds of 

conflicts—is often the best approximation of justice of which we are capable. Conflicts are not 

great evils to be hidden from or dodged. In fact, as the philosopher Stuart Hampshire once said: 

“Conflict is perpetual. Why then should be deceived?”140 Conflict is an essential and deep 

feature of our society—both unavoidable and actually desirable, since its source is our different 

backgrounds, different outlooks, and different memories. And the most plausible interpretations 

of our legal traditions—including our constitutional traditions—have acknowledged that we want 

multiple and conflicting goods from our laws. As Justice Souter put it a few years ago: 

[T]he Constitution contains values that may well exist in tension with each other, not in harmony 

. . . . The explicit terms of the Constitution . . . can create a conflict of approved values, and the 

explicit terms of the Constitution do not resolve that conflict when it arises . . . . A choice may 

have to be made, not because the language is vague but because the Constitution embodies the 

desire of the American people, like most people, to have things both ways. We want order and 

security, and we want liberty. And we want not only liberty but equality as well. These paired 

 

136 42 U.S.C. § 12101 et seq. (1990). 

137 42 U.S.C. § 2000e et seq. (1964). 

138 See Marc O. DeGirolami, The Problem of Religious Learning, 49 B.C. L. REV. 1213 (2008). 

139 There are salient differences between judicially imposed constitutional resolutions and legislative compromises. 

Legislation—for example, the Religious Freedom Restoration Act and its state analogues, as well as the Religious 

Land Use and Institutionalized Persons Act—reflects political compromise in ways that constitutional law cannot. 

Moreover, legislative compromises can be amended or repealed if the balances that they achieve are subsequently felt 

not to reflect an appropriate equilibrium as between values. 

140 STUART HAMPSHIRE, JUSTICE IS CONFLICT (Princeton University Press, 1999). 
Panelists’ Written Statements 215 

desires of ours clash, and when they do a court is forced to choose between them, between one 

constitutional good and another one.141

It is true, and everyone agrees that it is true, that when there are certain particularly powerful 

interests at stake—interests in protecting the weak from physical harm and abuse, for example—

those interests should always trump any countervailing interest. But most conflicts between 

religious liberty and nondiscrimination norms are not of this extreme character and should not be 

analogized to the most extreme circumstances. Likewise, nothing that I have said about the 

justice of conflict negates the importance of compromise, particularly legislative compromise. 

But compromise does not mean harmony, or the absence of tension. A good compromise is one 

where the tension between conflicting forces and impulses remains, even after the compromise, 

perceptible and vivid. Because of the nature of conflict as constitutive of our lives, it is probable 

that our own lives could be characterized as a series of compromises between competing values. 

Much the same may be said of the institutions of civil society, very much including our legal

institutions. 

The Ministerial Exception

In light of the clash of values I have described, one may well wonder how a court is to proceed in 

negotiating these clashes as a matter of constitutional adjudication. No matter how important 

preserving conflict may be, adjudication requires the termination of a specific dispute, and so it is 

necessary to consider what courts ought to say in carrying out their obligations. 

The best way forward for courts—the way that permits them to preserve as much of an existing 

conflict between religious liberty and non-discrimination norms as possible while fulfilling the 

duties of their office—is to decide cases narrowly and with close attention both to our historical 

traditions and to the factual particulars that shape each specific dispute. In these types of cases, 

courts should avoid issuing decisions that imprint a single value or class of values (whether, for 

example, those of religious liberty or of nondiscrimination) as categorically superior to other 

values. Decisions that are informed by historical compromises and our national traditions, and 

that reflect careful consideration of factual particulars, are preferable to those which proceed by 

reference to the all-out vindication of an abstract value, such as liberty, equality, neutrality, nondiscrimination, or the separation of church and state, at the expense of all other goods. 

It is a fortuity that the Supreme Court’s most recent, unanimous, religious liberty case, HosannaTabor Evangelical Lutheran Church and School v. EEOC, reflects just this approach to 

adjudication. As the Commission Members are aware, Hosanna-Tabor involved the issues of 

the existence and scope of the ministerial exception, a doctrine which recognizes that in certain 

contexts, the state’s interest in enforcing its nondiscrimination norms must be qualified by a 

 

141 David H. Souter, Harvard Commencement Address, HARVARD GAZETTE (May 27, 2010), available at 

http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/. 
216 Peaceful Coexistence Report 

religious institution’s interest in retaining control over employment decisions involving its 

ministerial employees. The Court concluded that the Hosanna-Tabor Evangelical Lutheran 

Church and School had the right to make employment decisions as to a “called teacher” in its 

employ, Cheryl Perich, who had sued the church pursuant to the ADA. Yet just as important as 

the Court’s recognition of the doctrine of the ministerial exception in Hosanna-Tabor was its 

methodology. 

The Court began by giving serious consideration to the history of “[c]ontroversy between church 

and state over religious offices” stretching back to the medieval period. It concluded that this 

history formed an important part of the foundation for religious liberty in the United States, 

especially the idea of church-state separation as properly understood142—a concept which at its 

source has far more to do with recognizing distinct realms of temporal and spiritual authority than 

with the civic acknowledgement of religion in the public square. That history explains the 

source of the American commitment both to free exercise and disestablishment. And it uncovers a 

fact often hidden to the modern mind: church-state independence was first sought by religious, 

not secular, institutions. The Court rightly rejected the view advanced by both the federal 

government and certain of its academic supporters that this history should be ignored or 

marginalized, and that religious liberty should simply be subsumed within and reduced to the very 

different doctrine of freedom of association.143 Instead, the Court properly relied on both our 

distinctive tradition of religious liberty and the consensus view of the Circuit Courts of Appeals 

that the ministerial exception exists and is grounded in the First Amendment.144

In determining the scope of the ministerial exception, however, the Court was circumspect, 

approaching its task narrowly and incrementally: 

We are reluctant . . . to adopt a rigid formula for deciding when an employee qualifies as a 

minister. It is enough for us to conclude, in this our first case involving the ministerial 

exception, that the exception covers Perich, given all the circumstances of her employment.145

What is important in these lines and what is reflected in the balance of the opinion is a highly 

particularized set of questions about the nature and function of the plaintiff’s duties—a suite of 

fact-specific inquiries—without reliance on any one of those inquiries as of itself controlling. 

The Court signaled that it will depend on this method, rather than any categorical rule or master 

value, to fashion the doctrine of the ministerial exception over time. And though its analysis was 

 

142 Hosanna-Tabor, 132 S.Ct. at 702-03. 

143 Id. at 706, 709 (calling “untenable” and “extreme” the government’s position that under the First Amendment it 

makes no difference whether a court deals with “the Lutheran Church, a labor union, or a social club”). 

144 Id. at 707. 

145 Id. 
Panelists’ Written Statements 217 

not ideal in certain respects,146 the Court rightly recognized that on balance, in light of what 

both Perich and the church understood and expected from the position, Perich’s job 

responsibilities were sufficiently ministerial that she should come within the compass of the rule. 

Yet the Court refused to extend that holding any more than necessary. It declined to opine on 

other kinds of law suits and other types of positions.147 And it did not adopt the view that 

churches have unbridled discretion to define any job as “ministerial” thereby to circumvent the 

state’s laws. That, too, was proper, inasmuch as the fact that a religious institution is involved in 

this type of conflict does not diminish, let alone erase, the state’s—or Perich’s own—interest in 

vindicating the equal application of non-discrimination laws.148 That interest remains powerful, 

even in the presence of a religious institution in the conflict. But the involvement of a church 

does qualify or complicate the government’s interest, introducing important competing values 

with which the government’s and Perich’s interests clash. It would be a mistake to select 

between these values categorically for constitutional purposes—choosing one set that ought to 

dominate the other set in all future cases. It would do violence to commitments each of which 

are important features of our political and legal traditions. 

It is true that narrow decisions may have costs. A narrow decision may provide less certainty 

than a broad decision; it may give prospective litigants less guidance; and it may leave the law 

less stable than is optimal.149 But that same uncertainty and instability may also promote 

compromise at the individual level; it may enable courts to communicate effectively with other 

government actors; and it may be more honest about the realities of constitutional adjudication—

more candid and therefore more legitimate in a liberal democracy. Most importantly, however, 

narrow constitutional decisions avoid the trap of fixing in amber a monolithic ranking of values 

and interests. They reserve judgment for future cases and controversies. 

 

146 For example, the nature of the remedy sought—whether money damages or reinstatement—might make a greater 

difference than the Court acknowledged. See id. at 709. Furthermore, the discussion of free exercise doctrine was less 

than fully persuasive in distinguishing the unduly parsimonious rule applicable to individuals. See id. at 706-07; 

Employment Division v. Smith, 494 U.S. 872 (1990). 

147 Hosanna-Tabor, 132 S.Ct. at 710 (“There will be time enough to address the applicability to the exception to 

other circumstances if and when they arise.”). State and federal courts have already begun to confront these issues, 

and in time a mature tradition of judicial doctrine of the ministerial exception will develop. See, e.g., 

http://clrforum.org/2012/08/14/dc-court-of-appeals-first-amendment-does-not-bar-ministers-breach-of-contract-suitagianst-church/; http://clrforum.org/2013/01/31/new-york-court-dismisses-breach-of-contract-suit-underministerial-exception/. 

148 See Hosanna-Tabor, 132 S.Ct. at 710 (“The interest of society in the enforcement of employment discrimination 

statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their 

beliefs, teach their faith, and carry out their mission.”). 

149 Whether this is true will depend on exactly how uniformly the principles underwriting the broader decision are 

applied. For an argument that the broad rule in the Smith decision actually provides less guidance than might be 

expected, see DEGIROLAMI, THE TRAGEDY OF RELIGIOUS FREEDOM, Chapter 8. 
218 Peaceful Coexistence Report 

The Supreme Court avoided these mistakes in Hosanna-Tabor, instead adopting a highly 

particularized, historically sensitive approach. And it is that method, more than any specific 

outcome, which does justice to conflict when religious liberty and norms of nondiscrimination 

inevitably clash. 

Thank you for the opportunity to offer these remarks. 

Leslie C. Griffin 

Thank you for this opportunity to discuss the conflict between antidiscrimination norms and civil 

liberties. Unfortunately, today antidiscrimination principles and religious freedom are on a 

collision course. Recent legislative and presidential actions, as well as court rulings, leave 

antidiscrimination norms in jeopardy because of excessive solicitude for religion. 

Religious Conduct is not Absolutely Protected 

My starting point is a reminder that the religious liberty defended by the First Amendment is not 

absolute. Although religious beliefs are protected absolutely, religious actions are not.150 

Religious conduct must yield to the law and its protection of all citizens.151 The government 

must remain especially aware of its need to protect everyone through its enforcement of the 

antidiscrimination laws; it must not waver on antidiscrimination because of religion. 

The Supreme Court well understood this point in 1983, when it unanimously rejected Bob Jones 

University’s free exercise challenge to the IRS’s decision to deny tax exemptions to a school that 

expelled advocates and members of interracial relationships because the Bible prohibits them. 

“[C]ertain governmental interests [can be] so compelling,” the Court ruled, “as to allow even 

regulations prohibiting religiously based conduct.”152 Bob Jones was focused on the particular 

evil of racial discrimination. Because the Commission’s job is broader—to enhance enforcement 

of and advance all federal civil rights laws—it must always consider the need to regulate even 

religiously based conduct in order to protect the antidiscrimination laws. 

This is the positive insight gleaned from the Court’s opinion and Justices Stevens’ concurrence 

in the case the Commission considered earlier this morning, Christian Legal Society v. 

Martinez.

153 Christian Legal Society reiterates the fundamental point that the government does 

not have to endorse discrimination even when faced with religious appeals to do so. Consistent 

with California law, Hastings’ nondiscrimination policy banned discrimination on the basis of 

 

150 Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). 

151 Id. at 304. 

152 Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983). 

153 130 S.Ct. 2971 (2010). 
Panelists’ Written Statements 219 

race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.154 

According to the Court, religion did not entitle CLS to a “special dispensation” from its rule that 

all student groups must accept all comers.155 Justice Stevens’ concurrence acutely emphasized 

the point that CLS’s expression and beliefs were not regulated “at all”; only their “discriminatory 

conduct” was.156 Belief enjoys absolute protection; conduct does not. As in Bob Jones, the 

government need not yield in its antidiscrimination efforts, and in particular it “need not 

subsidize [discriminatory groups], give them its official imprimatur, or grant them equal access 

to law school facilities.”157

The Government Has a Strong Interest in Combatting All Discrimination 

That same message about the government’s interest in combatting discrimination was delivered 

in the state court cases upholding state laws that require employers to provide contraceptive 

insurance to their employees. Just as Bob Jones allowed the IRS to combat racial discrimination, 

and Christian Legal Society permitted the law school to oppose sexual orientation and religious 

discrimination, so too did state laws protecting women’s access to contraception promote 

women’s equality. The highest courts of California and New York ruled that state legislation 

promoting women’s access to contraception does not violate the rights of religious employers 

who oppose contraception.158 In Catholic Charities of Sacramento v. Superior Court, the 

California Supreme Court held that the “compelling state interest of eliminating gender 

discrimination” justified a regulation of religious employers.159 Religious freedom is not 

absolute; sometimes it must yield to the law. 

Something additional to the employers’ religious freedom was at stake in Catholic Charities, 

which “employs a diverse group of persons of many religious backgrounds.”160 Exempting 

Charities from the law, the court reasoned, would “sacrifice[] the affected women’s interest in 

receiving equitable treatment with respect to health benefits.”161 Thus vindicating the 

employer’s religious claim would undermine the nondiscrimination rights of women employees. 

The court refused to do so, concluding that it was “unaware of any decision in which this court, 

or the United States Supreme Court, has exempted a religious objector from the operation of a 

 

154 Id. at 2979. 

155 Id. at 2978. 

156 Id. at 2996 (Stevens, J., concurring). 

157 Id. at 2998. 

158 See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004); Catholic Charities of the 

Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006). 

159 Catholic Charities of Sacramento, 85 P.3d at 92-94. 

160 Id. at 75. 

161 Id. at 93. 
220 Peaceful Coexistence Report 

neutral, generally applicable law despite the recognition that the requested exemption would 

detrimentally affect the rights of third parties.”162

That holding, with its recognition that religious exemptions must not limit third-party civil 

rights, was similar to the case of Edwin Lee, an Amish man who employed fellow Amish on his 

farm and carpentry shop and argued for a religious exemption from the social security and 

unemployment taxes. The U.S. Supreme Court refused his request, reiterating a central point of 

my testimony—“some religious practices yield to the common good”163; “every person cannot be 

shielded from all the burdens incident to exercising every aspect of the right to practice religious 

beliefs”164—and adding that an exemption from social security taxes “operates to impose the 

employer’s religious faith on the employees.”165

Religious Conduct Must Not Violate the Rights of Third Parties 

These important points have been buried in the acrimonious debate about the contraceptive 

mandate of the federal Affordable Care Act (ACA),166 which has been repeatedly 

mischaracterized as an assault on religious freedom. Unfortunately the federal contraceptive 

mandate debate has unfolded as a war between religious freedom on one side and women’s 

equality on the other, and thus, from this hearing’s perspective, as an ultimate conflict between 

antidiscrimination norms and civil liberties. 

According to the mandate, employee group health benefit plans must contain preventive care 

coverage that includes FDA-approved contraceptive methods and sterilization procedures. 

Consistent with the state laws on contraceptive insurance, the initial regulations from the 

Secretary of Health and Human Services applied the contraceptive regulations to religious 

employers.167 After complaints by religious groups, however, in February 2013 the Obama 

administration released a new regulation allowing employees to receive free coverage directly 

from insurance companies under a separate plan. Insurance companies will independently 

contact employees and make separate contraceptive policies available to them at no charge. 

Religious organizations will not have to pay for contraceptive insurance coverage. Insurance 

companies are expected to pay the extra costs. The definition of religious employer was 

expanded to include not only organizations where everyone shares one faith but also those that—

 

162 Id. (emphasis added). 

163 United States v. Lee, 455 U.S. 252, 259 (1982). 

164 Id. at 261. 

165 Id. (emphasis added). 

166 See 42 U.S.C. § 300gg-13(a)(4) (Supp. V 2011). 

167 See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the 

Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (Aug. 3, 2011). 
Panelists’ Written Statements 221 

like Catholic Charities—employ or provide services to individuals who are not members of the 

same religious community.168

Religious groups continue to criticize this most recent accommodation of religion by the 

administration as an insufficient protection of religious liberty. Unfortunately, the repeated 

concessions to religious employers and the constant focus on the employers’ religious freedom 

have overshadowed concerns about individuals’ freedom of conscience and antidiscrimination 

norms. On the employee front, many women of faith disagree with their employers about the 

morality of contraception. The Constitution protects their reproductive choice and the 

Affordable Care Act provides their insurance coverage. To exempt women’s employers from the 

statute because the employers believe women should not have that freedom infringes upon 

employees’ religious liberty as well as women’s equality and “operates to impose the employer’s 

religious faith on the employees.” 169

RFRA Misinterprets Free Exercise and Religious Conduct 

There are currently 14 for-profit and 30 non-profit lawsuits challenging the contraceptive 

mandate; 170 their outcomes threaten antidiscrimination norms, for women’s rights now and for 

other civil rights later. The for-profit lawsuits involve a wide range of businesses—a power 

equipment company; an arts and crafts store; a heating, ventilation and air conditioning 

manufacturer; a company that mines, processes and distributes refractory and ceramic materials 

and products; businesses engaged in scrap metal recycling; a construction business; a non-bank 

holding company including farming, dairy, creamery, and cheese-making; a cabinet and wood 

specialties company; and a company that manufactures vehicle safety systems.171 The owners all 

claim that their moral beliefs against contraception relieve them of the obligation to provide 

insurance to their employees of varying faiths. The non-profit plaintiffs include colleges, 

universities and dioceses, primarily but not exclusively Roman Catholic. The non-profit lawsuits 

have been on hold while the Obama administration developed the new rule that was released in 

February. 172

Under existing precedent, the for-profit cases should be easily decided in favor of the 

government. As the Court stated in Lee, “[w]hen followers of a particular sect enter into 

commercial activity as a matter of choice, the limits they accept on their own conduct as a matter 

 

168 See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 (proposed Feb. 6, 

2013) (to be codified at 45 C.F.R. pts. 147, 148 & 156). 

169 Lee, 455 U.S. at 261 (emphasis added). 

170 The status of these lawsuits is regularly updated at HHS Mandate Information Central, THE BECKET FUND FOR 

RELIGIOUS LIBERTY, available at http://www.becketfund.org/hhsinformationcentral/ (last visited Mar. 1, 2013). 

171 See id. 

172 See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 (proposed Feb. 6, 

2013) (to be codified at 45 C.F.R. pts. 147, 148 & 156). 
222 Peaceful Coexistence Report 

of conscience and faith are not to be superimposed on the statutory schemes which are binding 

on others in that activity.”173 Moreover, as Lee and Catholic Charities held, employers should 

not be permitted to use their religious freedom to limit the rights of third parties. Finally, 

Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos

suggests that the government violates the Establishment Clause when it gives accommodations to 

for-profit organizations and therefore “puts at the disposal of religion the added advantages of 

economic leverage in the secular realm.”174

To date, however, the decisions in these cases are all over the map in a manner that threatens 

antidiscrimination norms.175 Although losing on Free Exercise grounds, the employers have 

enjoyed some success under the Religious Freedom Restoration Act (RFRA), which prohibits the 

federal government from “substantially burden[ing] a person’s exercise of religion.”176 Although 

this law was ostensibly passed to promote civil liberties, its interpretation now potentially 

“operates to impose the employer’s religious faith on the employees.” 177

A major problem with RFRA is that the courts in the contraception cases have focused on the 

“substantial burden” language of the statute to the exclusion of the “exercise of religion.”178 

Many discussions of the mandate, both legal and political, assume that any and all conduct 

motivated by religious belief should enjoy constitutional and statutory exemption from law. It 

should not. Although religious beliefs are protected absolutely, religious conduct is not.179 

Religions are comprehensive doctrines that govern all aspects of their adherents’ lives. To give 

special protection to all religiously-motivated conduct puts religious citizens and corporations 

completely outside the orbit of the law. Such exclusion is not required by free exercise and is 

prohibited by establishment. RFRA must not be interpreted to give such special solicitude to 

religion that First Amendment and antidiscrimination norms are undermined. 

In interpreting the Religious Land Use and Institutionalized Persons Act (RLUIPA),180 which 

prohibits land use regulations that impose a substantial burden on the exercise of religion and is 

 

173 Lee, 455 U.S. at 261. 

174 483 U.S. 327, 343 (1987) (Brennan, J., concurring) (Giving accommodations to for-profit organizations “puts at 

the disposal of religion the added advantages of economic leverage in the secular realm, ... and has the effect of 

furthering religion in violation of the Establishment Clause.”); see also id. at 349 (O’Connor, J., concurring) (“It is 

not clear, however, that activities conducted by religious organizations solely as profit-making enterprises will be as 

likely to be directly involved in the religious mission of the organization.”). 

175 See Leslie C. Griffin, Misunderstanding the Mandate, ACSBLOG (Jan. 8, 2013), available at

http://www.acslaw.org/acsblog/misunderstanding-the-mandate. 

176 42 U.S.C. §§ 2000bb to 2000bb-4 (2006). 

177 Lee, 455 U.S. at 261. 

178 See, e.g., Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012). 

179 Cantwell, 310 U.S. at 303-04. 

180 42 U.S.C. §§ 2000cc to 2000cc-5 (2006). 
Panelists’ Written Statements 223 

similar to RFRA in analysis, some courts have accurately ruled that some conduct of religious 

organizations is not the exercise of religion. The courts have wisely held that many activities—

such as building a commercial fitness center or a dance studio181—do not qualify as the exercise 

of religion. They have rightly decided in particular that commercial activities—building 

apartment houses182 and leasing religious properties for commercial events,183 e.g.,—are not the 

exercise of religion. 

So too with the Affordable Care Act. Instead of measuring the substantial burden on religion, 

the courts should hold that the exercise of religion is not implicated in the business of secular, 

for-profit companies. Running a business is not the exercise of religion. Providing insurance 

coverage is not the exercise of religion. If courts, legislatures and administrative agencies 

develop the idea that all religious beliefs are exempted from the law’s reach, then 

antidiscrimination norms cannot hold. As the Court stated in Lee, “there is a point at which 

accommodation [of religion] would ‘radically restrict the operating latitude of the 

legislature.’”184 As Justice Brennan explained in Corporation of the Presiding Bishop of the 

Church of Jesus Christ of Latter-Day Saints v. Amos, when the government accommodates forprofit organizations it “puts at the disposal of religion the added advantages of economic 

leverage in the secular realm, and has the effect of furthering religion in violation of the 

Establishment Clause.”185

Religious Exemptions Threaten Antidiscrimination Law 

Unfortunately, the second case of interest to the Commission, Hosanna-Tabor Evangelical 

Lutheran Church & School v. EEOC,

186 supports the idea that religious organizations enjoy some 

immunity from the antidiscrimination laws. Left wide open in the Court’s narrow ruling in 

Hosanna-Tabor—“hold[ing] only that the ministerial exception bars” Cheryl Perich’s 

“employment discrimination suit brought on behalf of a minister, challenging her church’s 

 

181 New Life Worship Ctr. v. Town of Smithfield Zoning Bd. of Review, C.A. No. 09-0924, 2010 R.I. Super. LEXIS 

101 (R.I. Super. Ct. July 7, 2010). 

182 Greater Bible Way Temple v. City of Jackson, 733 N.W.2d 734 (Mich. 2007), cert. denied, 552 U.S. 1332 (2008). 

183 Scottish Rite Cathedral Ass’n v. City of Los Angeles, 67 Cal. Rptr. 3d 207 (Ct. App. 2007). 

184 Lee, 455 U.S. at 259 (internal citations omitted). 

185 483 U.S. 327, 343 (1987) (Brennan, J., concurring) (Giving accommodations to for-profit organizations “puts at 

the disposal of religion the added advantages of economic leverage in the secular realm, ... and has the effect of 

furthering religion in violation of the Establishment Clause.”); see also id. at 349 (O’Connor, J., concurring) (“It is 

not clear, however, that activities conducted by religious organizations solely as profit-making enterprises will be as 

likely to be directly involved in the religious mission of the organization.”). 

186 132 S.Ct. 694 (2012). 
224 Peaceful Coexistence Report 

decision to fire her”187 —is how much “special solicitude” religious organizations will continue 

to receive when they compete with antidiscrimination norms.188

One of the secular, for-profit companies has already argued that Hosanna-Tabor should free it 

from the contraceptive mandate.189 In Kentucky, one tenured professor’s race discrimination 

lawsuit against a seminary was dismissed due to the ministerial exception.190 A tenured Jewish 

professor at the same school received the surprising news that he is a Christian minister for 

ministerial exception purposes even though he does not, of course, believe in Jesus Christ.191 

Commercial photographers, bakers, innkeepers and dress shops assert their rights of religious 

freedom to refuse pictures, cakes, reception venues and wedding dresses to gay men and lesbians 

who marry.192 Race, gender and sexual orientation liberties repeatedly conflict with claims that 

religious conduct is beyond the law. 

In Hosanna-Tabor, Chief Justice Roberts was openly skeptical of the EEOC’s argument that a 

“parade of horribles” might arise from allowing “unfettered discretion” to religious employers.193 

The parade has started. Antidiscrimination norms are challenged for religious reasons, setting up 

the possibility that, especially under RFRA, “the professed doctrines of religious belief [become] 

superior to the law of the land, and . . . permit every citizen to become a law unto himself” 

instead of a citizen who lives by the law of antidiscrimination.194

Religious freedom and antidiscrimination norms are both cherished values under our 

Constitution. If we are to maintain both values, the starting point is a reminder that the religious 

liberty defended by the First Amendment is not absolute. Although religious beliefs are 

 

187 Id. at 710. 

188 Id. at 706. 

189 See Conestoga Wood Specialities Corp. v. Sebelius, No. 12-6744, 2013 WL 140110, at *7 (E.D. Pa. Jan. 11, 2013) 

(rejecting plaintiffs’ claim because of the distinction between religious organizations and secular corporations). 

190 See Kirby v. Lexington Theological Seminary, No. 2010-CA-001798-MR, 2012 WL 3046352 (Ky. App. July 27, 

2012). 

191 See Kant v. Lexington Theological Seminary, No. 2011-CA-000004-MR, 2012 WL 3046472, at *15 (Ky. App. 

July 27, 2012) (Keller, J., dissenting). 

192 See, e.g., Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. App. 2012) (photographer’s refusal to 

photograph same-sex marriage ceremony is a violation of New Mexico Human Rights Act); Mike Benner, Oregon 

Bakers Refuse to Make Same-Sex Wedding Cake, WHAS 11 (Feb. 3, 2013, 10:30AM), available at

http://www.whas11.com/news/189563131.html; Dave Gram, Vermont’s Wildflower Inn Settles Gay Marriage 

Lawsuit With Lesbian Couple, HUFFINGTON POST (Aug. 23, 2012, 7:51PM), available at

http://www.huffingtonpost.com/2012/08/23/wildflower-inn-vermont-gay-marriage-lawsuit_n_1826218.html; Nina 

Terrero, N.J. Bridal Shop Refused to Sell Wedding Dress to Lesbian Bride; Owner Says “That’s Illegal,” ABC NEWS

(Aug. 19, 2011), available at http://abcnews.go.com/US/nj-bridal-shop-refused-sell-wedding-dresslesbian/story?id=14342333. 

193 132 S.Ct. at 710. 

194 Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). 
Panelists’ Written Statements 225 

protected absolutely, religious actions are not.195 Religious conduct must yield to the law and its 

protection of all citizens.196

Marci A. Hamilton197

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C.198 brought the so-called 

“ministerial exception” doctrine to the Supreme Court for the first time. This First Amendment 

theory—originally articulated in the lower courts over fifty years ago—stands for the proposition 

that religious organizations have the right to determine the employment criteria for their clergy. 

The Court needed to address three questions to alleviate confusion among the lower courts: (1) is 

the ministerial exception a jurisdictional issue?; (2) does an employment decision, not motivated 

by religious belief, still receive the protections of the ministerial exception under the First 

Amendment?; and (3) when is an employee of a religious institution a “ministerial employee” for 

purposes of the ministerial exception? 

The best example of a case where the exception applies—and one that continuously resurfaced 

during the oral argument at the Supreme Court—is the Roman Catholic Church’s prohibition on 

women serving as priests. At oral argument in Hosanna-Tabor, the Justices and the attorneys on 

both sides all seemed to agree that the federal anti-discrimination laws certainly may not be used 

to strong-arm the Catholic Church into accepting women as priests. However, Hosanna-Tabor

itself involved a much trickier scenario. 

The Facts of the Hosanna-Tabor Case Before the Court 

The Hosanna-Tabor case involved Cheryl Perich, a teacher whose primary duties included the 

teaching of secular subjects, as well as some irregular religious teaching. She was originally 

hired as a teacher without being informed what the Church considered a “called” teacher. 

Subsequently, Perich enrolled in courses that qualified her to become a “called” teacher. 

Interestingly, her duties were identical before and after being “called.” 

While employed by the Church, Perich began to suffer from narcolepsy and took a leave for 

medical reasons. When she returned mere months later, the Church informed her that her 

position was no longer available. Perich threatened to sue under the Americans with Disabilities 

Act (“ADA”), alleging that the Church should have worked with her to accommodate her 

narcolepsy so she could continue to teach. The Church fired her and invoked the First 

 

195 Cantwell, 310 U.S. at 303-04. 

196 Id. at 304. 

197 Paul R. Verkuil Chair in Public Law and Benjamin N. Cardozo School of Law, Yeshiva University. 

198 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C, 132 S.Ct. 694 (2012). 
226 Peaceful Coexistence Report 

Amendment, alleging that it had a belief that disputes should be resolved peaceably between 

members through internal procedures, which precluded her filing of a federal lawsuit. Therefore, 

her failure to invoke internal procedures and the very filing of the civil rights lawsuit was the 

justification, according to the Church, for letting her go. Under an ordinary civil rights case, this 

was a classic, illegal retaliatory move. 

The record does not indicate how Perich would ever have known that she had to follow that 

procedure—as Justice Breyer forcefully noted at oral argument.199 She also did not know that, 

by working for the Church, she was expected to forego her rights under the anti-discrimination 

laws. She was playing a game she could not possibly win. When asked at oral argument by 

Justice Ginsburg if the Church handbook contained the information, the Church’s representative, 

Professor Douglas Laycock, dodged the question, saying most of the handbook was not in 

evidence. However, he never pointed to any aspect of the record substantiating that she would 

have known this was a belief until she invoked federal law and they responded.200 Thus, there 

was, without question, a troubling element of unfairness, largely because of our shared cultural 

expectations that employees are protected from arbitrary, invidious discrimination on the basis of 

disability (and race, gender, and alienage), and a sense that the Church’s purported belief in court 

avoidance might not have been sincere given that a woman they claimed was a “minister” did not 

even know it was a belief.

The Ministerial Exception Is Not a Jurisdictional Issue 

The Church advocated a categorical, jurisdictional rule: A teacher who teaches any religion 

course(s) is a “minister,” and any case involving employment decisions regarding a minister are 

beyond the very power of the courts; they simply may not invoke jurisdiction.201 Thus, the First 

Amendment would have forbidden the courts from considering any aspect of Perich’s case. 

Laycock repeatedly articulated this logic upon insistent questioning by the Justices.202

The Supreme Court rejected this extreme position and instead held that the First Amendment is a 

potential defense but courts must determine on a case-by-case basis whether an employee is a 

“minister.” 

 

199 Transcript of Oral Argument at 20, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C, 132 S.Ct. 

694 (2012) (No. 10-553) [hereinafter Hosanna-Tabor Oral Argument]. 

200 Id. at 20-21. 

201 See Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006); Gellington v. Christian Methodist 

Episcopal Church, 203 F.3d 1299 (11th Cir. 2000); Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940 (9th 

Cir. 1999); Young v. N. Illinois Conference of United Methodist Church, 21 F.3d 184 (7th Cir. 1994); Minker v. 

Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1356 (D.C. Cir. 1990). 

202 Hosanna-Tabor Oral Argument supra n. 199 at 3-26. 
Panelists’ Written Statements 227 

The Supreme Court also declined to embrace a “church autonomy doctrine.” The corollary to 

the jurisdictional argument was a theory that churches have “autonomy” from discrimination 

law. This theory has been endorsed by numerous church lawyers in a wide variety of settings, 

but as I explained in my amicus brief in this case on behalf of BishopAccountability.org, The 

Cardozo Advocates for Kids, Child Protection Project, The Foundation to Abolish Child Sex 

Abuse, Jewish Board of Advocates for Children, Inc., KidSafe Foundation, The National Black 

Church Initiative, The National Center for Victims of Crime, Survivors for Justice, and the 

Survivors Network of those Abused by Priests and below, the Supreme Court has never embraced 

or identified a “church autonomy doctrine,”203 and did not do so in this case. In fact, only two 

members of the Court, and two who rarely see eye-to-eye on any subject, Justices Alito and 

Kagan, endorsed an “autonomy” approach.204

The Hard Question Largely Left Unanswered: Who is a “Minister”? 

Because the Court did not side with the church’s argument in favor of a jurisdictional rule, but 

embraced the concept of a ministerial exception required by the First Amendment, it was forced 

to decide which employees of religious organizations qualify for the exception. One bright line 

would have been to limit it to ordained clergy, but the Court declined to limit the class of those 

employees affected to only those who are obviously ordained clergy. The Court also declined to 

hold that each and every employee of a religious institution is included. As usual, the hard part 

in a constitutional case is the line-drawing. 

The lower courts struggled with this same line-drawing, which is why, in the end, the Supreme 

Court took up the issue. Essentially the Court held that if an employee is a “minister,” he or she 

is excluded from the protections of federal civil rights law. Accordingly, if Perich were not a 

“minister,” she would have received the full protection of the ADA, Title VII, and every other 

federal, state, and local anti-discrimination law, despite the fact that her employer was religious. 

In a Supreme Court case, the most important argument that any litigant can offer is a workable 

test. Here, after the Court rejected the jurisdictional theory and a bright-line ordained clergy 

category, the test would need to resolve who is, and is not, a minister. Yet, no compelling test 

was put forward by either side in Hosanna-Tabor, or, in fact, the Court. For employees who are 

not ordained clergy, each case in the future will be based on the facts of that case. 

 

 

203 Brief of BishopAccountability.org et al. at 17, as Amici Curiae Supporting Petitioner, Hosanna-Tabor Evangelical 

Lutheran Church & Sch. v. E.E.O.C, 132 S.Ct. 694 (2012). 

204 Hosanna-Tabor, 132 S.Ct. at 711-716 (Alito, J., concurring). 
228 Peaceful Coexistence Report 

An Interesting Analogy: If “Religious” Beliefs Can Be Challenged In Court as Insincere, 

Why Can’t “Religious” Employment Decisions Be Challenged as Pretexts? 

I found most curious the failure of any of the lawyers or Justices to analogize the ministerial 

exception cases to the “sincerity” cases. It seemed to be a general assumption, at oral argument, 

that the courts may not question religious believers. But, in fact, courts—while they may not 

decide or determine religious doctrine—can certainly consider evidence as to whether someone, 

or some institution, sincerely holds a given belief. 

Indeed, free exercise cases routinely involve the question of whether the professed believer is 

sincere.205 The initially Baptist prisoner—who claims sudden conversion to Judaism to obtain 

the benefits of kosher food after he sees it is fresher and better than the other food offerings—

does not automatically get to demand a change in his meal options. The prison authorities can 

and do argue that a prisoner’s real purpose is secular (seeking fresher food) and not religious, 

and therefore avoid liability for false religious liberty claims. It is my view that the sincerity 

doctrine survives the Hosanna-Tabor decision. 

Perhaps some will argue that the prison cases are inapposite, even suggesting that it is absurd to 

parallel respected religious leaders with prisoners. Yet, sincerity analysis is standard and 

appropriate in every free exercise case. With all due respect, religious organizations and their 

leaders run the full spectrum of human fallibility. The First Amendment does not require courts 

to pretend that religious organizations and believers never err. That would be both nonsensical 

and counterfactual. 

The Hosanna-Tabor case did not directly address issues involving sincerity, but I assume that in 

future cases, if the religious organization is not sincere in arguing that an employee players the 

role of a minister or about its beliers, and the sincerity defense is raised, First Amendment 

doctrine will not bar consideration of the sincerity question. 

The Hosanna-Tabor Decision Is Narrow, and the Doctrine in This Area Will Need to Be 

Developed Further 

The Supreme Court reversed the Sixth Circuit, because Perich exercised enough religious 

obligations to cross the line from being a secular employee to a “minister.” The Court reasoned, 

“[t]he amount of time an employee spends on particular activities is relevant in assessing that 

employee's status, but that factor cannot be considered in isolation, without regard to the nature 

of the religious functions performed and the other considerations discussed above.”206 With 

respect to Perich, the Court reasoned, “[b]ecause Perich was a minister within the meaning of the 

 

205 Petruska v. Gannon University, 448 F.3d 615 (3d Cir. 2006), vacated, 2006 U.S. App. LEXIS 15088 (3d Cir. 

2006). See also Bollard, 196 F.3d at 947; McKelvey v. Pierce, 800 A.2d 840, 858 (N.J. 2002). 

206 Hosanna-Tabor, 132 S.Ct. at 709. 
Panelists’ Written Statements 229 

exception, the First Amendment requires dismissal of this employment discrimination suit 

against her religious employer.”207

The consequence is that, if an employee is found as a matter of fact on a case-by-case basis to be 

a “minister,” religious organizations can fire the minister based on disability, race, or gender, and 

the employee will not be able to sue their employer for invidious discrimination. Conversely, if 

the employee is found not to be a “minister,” the religious organization at issue will still have to 

deal with the ADEA, ADA, and Title VII, along with state civil rights statutes. 

The Limited Reach of the Hosanna-Tabor Decision 

One related question raised at the oral argument was whether certain categories of action by 

employees would be encompassed by the ministerial exception. For example, would religious 

institutions be immune under the First Amendment for retaliating against whistleblowers who 

report criminal or other bad behavior to the appropriate secular authorities (such as the EEOC, in 

the event of discrimination against a non-ministerial employee, or the police in the event of child 

sex abuse)? After all, Perich was fired because she invoked her rights under the ADA. That is a 

classic retaliation fact pattern. 

Early in the oral argument, Justice Sotomayor insisted that the Court could recognize no First 

Amendment right in cases involving retaliation for reporting the abuse of women and/or 

children.208 Here, she was apparently referring to the recent cases involving the Fundamentalist 

Church of Jesus Christ of Latter-Day Saints, polygamy, and child sex abuse. 

The Church’s lawyer was more than willing to agree to an exception for sex abuse or the 

protection of children, but he did not have an explanation as to how those cases, on his 

jurisdictional theory or an autonomy theory, could be decided by the courts. He merely 

reiterated several times that the protection of children is paramount. That principle of excluding 

certain actions between religious employers and ministers from the ministerial exception 

doctrine was explicitly noted. 

The Court’s opinion states, “[a]ccording to the EEOC and Perich, such an exception could 

protect religious organizations from liability for retaliating against employees for reporting 

criminal misconduct or for testifying before a grand jury or in a criminal trial.”209 But, the Court 

noted that even Hosanna-Tabor had not gone that far: 

Hosanna-Tabor responds that the ministerial exception would not in any way bar criminal 

prosecutions for interfering with law enforcement investigations or other proceedings. Nor, 

 

207 Id. 

208 Hosanna-Tabor Oral Argument supra n. 199 at 4-5. 

209 Hosanna-Tabor, 132 S.Ct. at 710. See also Petruska, 462 F.3d 294 (relating to gender discrimination). 
230 Peaceful Coexistence Report 

according to the Church, would the exception bar government enforcement of general laws 

restricting eligibility for employment, because the exceptions applies only to suits by or on 

behalf of ministers themselves.210

Thus, the Court concluded, “[t]he case before us is an employment discrimination suit brought 

on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that 

the ministerial exception bars such a suit. We express no view on whether the exception bars 

other types of suits, including actions by employees alleging breach of contract or tortious 

conduct by their religious employers.”211

The Court’s Bottom Line: Courts Cannot Establish Selection Criteria for Ministers

The Court therefore distinguished other potential legal disputes between clergy and religious 

organizations. The ministerial exception, it made clear, does not involve employees other than 

clergy, and may well not implicate a large range of legal disputes brought by clergy, e.g., a 

dispute over whether the religious organization paid the full salary and benefits expected in the 

employment contract. Standing even farther afield, and not mentioned by the Court, are cases 

that involve clergy or religious organizations, but that are brought by third parties, such as childsex-abuse victims. 

The bottom line is that the government may not establish selection or retention criteria for 

ministers. That means religious organizations are free, under the First Amendment, to 

discriminate by sex, disability, age, or race against their ministers. Further, they can fire a 

minister at will, without having to worry about the federal or state anti-discrimination laws. But 

the Court did not hold that religious organizations operate autonomously with respect to any 

body of law other than the federal anti-discrimination laws. 

The Court Laid to Rest the So-Called “Church Autonomy Doctrine” 

Before the Supreme Court took up the issue, some courts misnamed the ministerial exception 

issue as a “church autonomy doctrine.”212 In the same vein, some religious organizations have 

attempted to avoid institutional liability for sexual abuse, assault, and harassment by their clergy 

by arguing that their decisions regarding clergy—even when clergy engage in inappropriate 

sexual behavior—are protected by what they have styled a “church autonomy doctrine.” In fact, 

the Court had never employed “autonomy” to describe its Religion Clause doctrine.213

 

210 Hosanna-Tabor, 132 S.Ct. at 710. 

211 Id. 

212 Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 654 (10th Cir. 2002). 

213 Marci A. Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public Good, 2004 BYU L. REV. 1099, 

1112-13 (2004). See also Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory: 

Widespread Clergy Abuse and Institutional Cover-Up, 29 CARDOZO L. REV. 225 (2007). 
Panelists’ Written Statements 231 

As I explained in my amicus brief to the Court, “autonomy” is at odds with the Court’s 

longstanding doctrine of “ordered liberty,” and it should not be adopted for purposes of the 

ministerial exception the Court was inevitably going to embrace in one form or another. I 

pointed out that the lower courts have routinely rejected the so-called autonomy defense in 

clergy sexual misconduct cases. The United States Court of Appeals for the Second Circuit 

explained: 

Religious organizations come before us in the same attitude as other voluntary associations for 

benevolent or charitable purposes, and their rights of property, or of contract [or, we would add, 

their liability arising from the commission of a tort], are equally under the protection of the law, 

and the actions of their members subject to its restraints.214

In the Hosanna-Tabor decision, the majority never used the term “autonomy,” continuing the 

long tradition of never employing a “church autonomy doctrine.” In fact, only two members of 

the Court mentioned the term at all.215 Therefore, I think it is safe to say that there is no such 

doctrine under the First Amendment and those lower courts and litigants who have used it in the 

past need to adopt a more nuanced approach to First Amendment doctrine. 

RECOMMENDATION: There Is Still Room for Fairness in Employment for Ministers 

The Hosanna-Tabor decision clarified that the ministerial exception is not jurisdictional and that 

the right to discriminate extends beyond ordained clergy to other employees. However, the 

Court left the doctrine in such a way that every case, other than those involving ordained clergy, 

will have to be decided on a case-by-case fact basis. Perich was a “minister” for purposes of the 

Court’s analysis, but the next teacher in a religious school may not be. Right now, many 

 

214 Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 431-32 (2d Cir. 1999) (quoting Watson v. 

Jones, 80 U.S. 679, 714 (1871)). See also Bollard, 196 F.3d at 947-48; Sanders v. Casa View Baptist Church, 134 

F.3d 331, 337-38 (5th Cir. 1998), cert. denied, Baucum v. Sanders, 525 U.S. 868 (1998); In re Archdiocese of 

Milwaukee, 485 B.R. 385 (Bankr. E.D. Wis. 2013); Doe v. Liberatore, 478 F. Supp. 2d 742, 772 (M.D. Pa. 2007); 

Doe v. Archdiocese of Denver, 413 F. Supp. 2d 1187, 1194 (D. Colo. 2006); Dolquist v. Heartland Presbytery, 342 F. 

Supp. 2d 996, 1005 (D. Kan. 2004); Smith v. Raleigh Dist. of the North Carolina Conf. of the United Methodist 

Church, 63 F. Supp. 2d 694, 705-06 (E.D.N.C. 1999); Doe v. Hartz, 52 F. Supp. 2d 1027, 1078 (N.D. Iowa 1999); 

Smith v. O’Connell, 986 F. Supp. 73, 77 (D. R.I. 1997); Rashedi v. General Bd. of Church of the Nazarene, 54 P.3d 

349, 354 (Ariz. Ct. App. 2002); Moses v. Diocese of Colorado, 863 P.2d 310, 319-20 (Colo. 1993), cert. denied, 511 

U.S. 1137 (1994); Carnesi v. Ferry Pass United Methodist Church, 826 So. 2d 954 (Fla. 2002), cert. denied, 537 U.S. 

1190 (2003); Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436 (Tenn. 2012); Petrell v. Shaw, 

902 N.E.2d 401, 406 (Mass. 2009); Turner v. Roman Catholic Diocese of Burlington, 987 A.2d 960, 975-76 (Vt. 

2009); Roman Catholic Diocese v. Morrison, 905 So. 2d 1213, 1236-38 (Miss. 2005); Fortin v. Roman Catholic 

Bishop of Portland, 871 A.2d 1208, 1232 (Me. 2005); Malicki v. Doe, 814 So. 2d 347, 351 n.2, 360- 62 (Fla. 2002); 

Odenthal v. Minnesota Conference of Seventh-Day Adventists, 649 N.W.2d 426, 436 (Minn. 2002); C.J.C. v. Corp. 

of the Catholic Bishop, 985 P.2d 262, 277 (Wash. 1999); F.G. v. MacDonell, 696 A.2d 697, 701 (N.J. 1997); Strock 

v. Pressnell, 527 N.E.2d 1235, 1237 (Ohio 1988). 

215 Hosanna-Tabor, 132 S.Ct. at 711-716 (Alito, J., concurring). 
232 Peaceful Coexistence Report 

employees of religious schools do not know whether they are protected from invidious 

discrimination or not. 

From the perspective of the Civil Rights Commission, it is my view that the most troubling part 

of this doctrine should be the clash of cultures in which ministers now find themselves. As 

American citizens, they share in our cultural assumption that organizations, businesses, and the 

government may not engage in invidious discrimination. In all likelihood, they also likely 

presume, that a religious organization is less likely to engage in invidious discrimination, at least 

when the discrimination is not driven by theology. Thus, while a minister cannot be surprised 

that only men can be priests in the Catholic Church or rabbis in Orthodox Jewish congregations, 

he or she can be very surprised when they are fired based on race, disability, or age. 

I have spoken to a number of victims of discrimination by religious institutions, and they are 

invariably shocked that they had fewer rights against invidious discrimination in a religious 

institution than they did in a secular institution. They assumed not only that they did not shed 

their civil rights at the church door, but also that a religious institution simply would not engage 

in bare gender, race, disability, or age discrimination unconnected to theological tenets. Yet, 

cases that were brought prior to Hosanna-Tabor were decided alleging such discrimination in 

every category.216 When the employees lost these cases based on the ministerial exception, they 

felt wronged. 

The federal government has the authority and power to, at least, reduce the likelihood of such 

surprise and betrayal. It is my view that the federal (and state) civil rights laws should be 

amended to require that religious organizations must disclose before employment whether the 

employee is a “minister” for purposes of the ministerial exception and, therefore, whether the 

employee will be protected by or foreclosed from the state or federal civil rights laws. 

Religious organizations also should not be permitted to include in their employee materials for 

ministers a non-discrimination policy without consequences. Consistent with the HosannaTabor decision, suits based on fraud or misrepresentation should be available if religious 

organizations mislead applicants. The Internal Revenue Code also should be amended to provide 

that any religious organization that misleads employees regarding the availability of civil rights 

protections loses its tax-exempt status.217

 

216 See Rweyemau v. Cote, 520 F.3d 198 (2d Cir. 2006) (holding a provision discriminating based on race 

unconstitutional when applied to certain religions institutions); Petruska, 462 F.3d 294 (holding that, although Title 

VII prohibits gender discrimination, the Equal Protection Clause prevents the application of Title VII to ministerial 

functions within religious institutions); Coulee Catholic Sch. v. Labor & Indus. Review Comm'n, Dept. of Workforce 

Dev., 768 N.W.2d 868 (Wisc. 2009) (holding that the ministerial exception applies when a teacher at a religious 

elementary school brings an age discrimination claim); Hosanna-Tabor 132 S.Ct. 694 (holding that the ministerial 

exception barred a disability claim); McKelvey, 800 A.2d at 858 (holding that a genuine issue of fact existed as to 

whether sexual harassment claims could be brought without violating the First Amendment). 

217 Bob Jones Univ. v. United States, 461 U.S. 574 (1983). 
Panelists’ Written Statements 233 

I have no doubt that lawyers for religious organizations are likely to advise them that they should 

oppose any bill that requires them to disclose liability under the civil rights laws. But, as we 

have learned so well in the clergy sex abuse arena, many times a lawyer’s advice to religious 

organizations that includes a lack of transparency can later subject the organization to charges 

stemming from such immoral and self-serving behavior. Religious organizations need to pursue 

transparency and fairness in this arena, as well as the child protection arena to be able to demand 

respect and allegiance in the public square. 

Michael A. Helfand 

As expressed by the Commission, the focus of this briefing is to explore tensions between two 

competing values: non-discrimination and religious liberty. This discussion comes at a crucial 

time as we face a new set of debates over the role of religion in a liberal democracy. While 

many such debates have explored the extent to which government should grant religious 

individuals exemptions from generally applicable laws,218 a new wave of debates have 

increasingly focused on the unique role played by religious institutions in our constitutional 

order. Indeed, at the center of many of these new debates stand competing views regarding the 

extent to which religious institutions and organizations should be afforded constitutional 

exemptions from statutes and public policies that protect individuals from various forms of 

discrimination. Such constitutional protections - often referred to collectively under the umbrella 

of the “church autonomy doctrine”219 - generally provide religious institutions with a right to 

direct their own internal affairs free from government interference.220 However, critics worry 

that granting religious institutions with unbridled discretion might lead to wide-ranging 

discrimination and misconduct.221

 

218 Debates regarding exemptions for religious individuals continue to play an important role in the general discussion 

over the role of religion in the United States. See, e.g., Elane Photography, LLC v. Willock, No. 30,203 (N.M. Ct. 

App. May 31, 2012) (holding a photographer liable under New Mexico’s Human Rights Law for refusing to 

photograph a same-sex marriage). 

219 See, e.g., Skrzypczak v. Roman Catholic Diocese, 611 F.3d 1238 (10th Cir. 2010) (referencing the “church 

autonomy doctrine”); Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (same). The phrase “church 

autonomy doctrine” is typically associated with Douglas Laycock who famously deployed the term in his seminal 

article Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations 

and the Right to Church Autonomy, 81 COLUM. L. REV. 1373 (1981). However, Laycock has noted that he did not 

coin the phrase, but instead borrowed it from the title of Paul G. Kauper’s Church Autonomy and the First 

Amendment: The Presbyterian Church Case, 1969 SUP. CT. REV. 347. See Douglas Laycock, Church Autonomy 

Revisited, 7 GEO.J.L. & PUB. POL’Y 253, 254 (2009). 

220 See, e.g., Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 115 (1952); Watson v. 

Jones, 80 U.S. 679, 728-29 (1872). 

221 See, e.g., Leslie C. Griffin, The Sins of Hosanna-Tabor, 88 IND. L.J. (forthcoming 2013), available at 

http://ssrn.com/abstract=2026046; Caroline Mala Corbin, Above the Law? The Constitutionality of the Ministerial 

Exemption from Antidiscrimination Law, 75 FORDHAM L. REV. 1965, 2004-05 (2007); Marci A. Hamilton, Religious 

Institutions, the No-Harm Doctrine, and the Public Good, 2004 BYU L. REV. 1099 (2004). 
234 Peaceful Coexistence Report 

Within the larger framework of this briefing, I would like to address the more narrow issue of 

church autonomy, outlining four points about how we might think about questions related to 

religious institutions going forward by considering (1) the constitutional value of religious 

institutions in a liberal democracy, (2) the appropriate limits on the constitutional protections 

afforded religious institutions, (3) the relationship between misconduct and religious 

discrimination, and (4) how we might leverage the value of religious institutions to address 

conflicts between law and religion. 

In summary, I believe that as a liberal democracy we must provide religious institutions with the 

strongest of protections to decide matters of religious faith and doctrine. Religious institutions 

are afforded such protections by the First Amendment because they provide an infrastructure for 

individuals to pursue matters of faith in concert with others. And to the extent individuals join 

religious institutions in order to pursue matters of faith, such institutions should be afforded 

constitutional protection in order to make rules and develop doctrine geared to accomplish those 

goals. 

(1) The Value of Religion and Religious Institutions in a Liberal Democracy 

To address the scope and limits we place on religious freedom requires that we articulate the core 

value of religion and religious institutions in a liberal democracy. Stripped to its essentials, a 

liberal democracy must affirm the right of individuals to develop and revise their own vision of 

what it means to live, as the philosophers say, the good life. This right ensures that individuals 

can lead sincere and authentic lives, making their own decisions on matters of faith and identity 

free from government intrusion. 

Of course, thinking through who we are and what we believe is not something typically done in 

isolation. We invariably work through these deeply personal questions of faith and identity 

while in conversation, often embracing values and ideals shared by others. More narrowly, 

many people conclude that they can only accomplish their religious goals by joining with others 

who share their core faith commitments. In fact, the Supreme Court has long recognized that the 

value of religious institutions is premised on their importance to the faith of individual 

citizens,222 focusing on how religious institutions provide the infrastructure that allows 

individuals to pursue their deeply held religious objectives.223

 

222 Watson v. Jones, 80 U.S. 679, 728-29 (1872) (“The right to organize voluntary religious associations to assist in 

the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted 

questions of faith within the association, and for the ecclesiastical government of all the individual members, 

congregations, and officers within the general association, is unquestioned.”). 

223 See Richard W. Garnett, Do Churches Matter: Towards an Institutional Understanding of the Religion Clauses, 53

VILL. L. REV. 273 (2008). 
Panelists’ Written Statements 235 

This is precisely why the Supreme Court originally understood the value of religious institutions 

as based upon the “implied consent” of their membership.224 The argument was quite 

straightforward. Because individuals voluntarily join religious institutions to pursue religious 

objectives in concert with others, the institution is granted “implied consent” by the membership 

to make rules and develop doctrine that promotes those goals. In turn, individuals can utilize 

religious institutions as a resource to develop their own vision of what it means to live a good 

life. 

Of course, religious institutions can provide this infrastructure only so long as they can speak on 

matters of religious faith, doctrine and practice free from government intervention. The Supreme 

Court captured this core intuition in 1952, endorsing a “freedom for religious organizations, an 

independence from secular control or manipulation - in short, power to decide for themselves, 

free from state interference, matters of church government as well as those of faith and 

doctrine.”225 The Supreme Court returned to this core constitutional commitment in HosannaTabor v. EEOC, where the Court emphasized that the First Amendment “gives special solicitude 

to the rights of religious organizations.”226

In sum, a liberal democracy protects religion so citizens can decide who they want to be and 

what they want to believe. And a liberal democracy values religious institutions because they 

provide the necessary infrastructure to enable individuals to achieve their religious goals. This is 

precisely why we protect religious institutions; individuals implicitly consent to empower 

religious institutions to make rules and develop doctrine that promote their shared religious 

objectives. Accordingly, both religious individuals and religious institutions must be protected 

from governmental attempts to hijack decisions over substantive religious matters such as faith 

and doctrine. 

(2) Providing Limits on the Rights of Religious Institutions 

It is one thing to say that government should not interfere with the right of religious institutions 

to develop their own religious faith and doctrine. It is quite another to say that all decisions 

made by religious institutions should be shielded from any form of government oversight. 

Indeed, if we protect religious institutions because they promote the religious objectives of their 

membership, then such protection should end where religious institutions engage in conduct that 

fails to promote such objectives. 

 

224 Watson v. Jones, 80 U.S. 679, 729 (1872) (“All who unite themselves to such a body do so with an implied 

consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total 

subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts 

and have them reversed.”). 

225 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 115 (1952). 

226 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694, 697 (2012). 
236 Peaceful Coexistence Report 

This is precisely the limitation on religious institutional autonomy the Supreme Court advocated 

in the early half of the 20th century. In 1929, for example, the Supreme Court noted that it would 

not defer to the decisions of religious institutions where they evinced “fraud, collusion or 

arbitrariness.”227 Such a limitation made quite a lot of sense given the reasons why we value 

religious institutions. Individuals ask religious institutions to make rules and develop doctrine 

that help their membership achieve lofty religious objectives like faith and salvation. But 

individuals do not ask religious institutions to make decisions premised on fraud or collusion. 

When religious institutions engage in such conduct they cease to have constitutional protection. 

The Supreme Court, however, has expressed unwillingness to impose these side constraints on 

religious institutions.228 The worry here is that reviewing the decisions of religious institutions 

for fraud or collusion would require courts to investigate matters of internal religious doctrine 

and practice in violation of the Establishment Clause of the First Amendment. But it may be 

high time to revisit that conclusion, especially given the damaging impact of this judicial 

reluctance.229 For example, claims of discrimination leveled by employees against religious 

institutions often boil down to accusations of pretext; the religious institution claims to have 

terminated an employee on the basis of protected religious considerations, while the employee 

claims that the religious considerations are simply a pretextual ploy to disguise prohibited forms 

of discrimination. While courts typically refuse to address claims of pretext on the grounds that 

resolving them would lead to judicial entanglement in questions of religious doctrine, such 

refusals are based on an over-expansion of the Establishment Clause, which should only prevent 

judicial intervention where a religious institution makes decisions on the basis of religious 

doctrine and not where religious doctrine is simply a pretext for other forms of discrimination.230

In sum, religious institutions should be afforded the strongest of protections when they make 

sincere and authentic decisions about religious matters, such as faith, doctrine and practice. Such 

substantive religious decisions must remain beyond the reach of government except under the 

most extreme and compelling of circumstances. However, if we value religious institutions 

because of how they promote religious objectives then we need a method for determining when 

they engage in conduct which undermines those very goals. And courts are far better suited to 

engage in that inquiry than we currently allow. 

(3) Preventing the Slide Towards Religious Discrimination 

 

227 Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1929). 

228 See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); see also Church of Scientology Flag Serv. 

v. City of Clearwater, 2 F.3d 1514, 1541 (11th Cir. 1993) (noting that “[i]n Serbian Diocese ... the Court cast doubt 

upon the continuing vitality of the Gonzalez dictum”). 

229 For my extended argument on this point, see Michael A. Helfand, Religion’s Footnote Four: Church Autonomy as 

Arbitration, 97 MINN. L REV. (forthcoming 2013), available at http://ssrn.com/abstract=2141510. 

230 See Michael A. Helfand, Litigating Religion, 93 B.U. L. REV. (forthcoming 2013), available at 

http://ssrn.com/abstract=2022560. 
Panelists’ Written Statements 237 

There is a tendency, unfortunately, to contemplate issues of religious freedom by focusing 

exclusively on these instances of fraud or collusion. On one level, this is understandable as some 

institutions, under the cloak of religion, have engaged in conduct so reprehensible that it 

becomes difficult to look at the larger picture. But focusing exclusively on the bad is 

problematic not simply because it pushes policymakers to throw out the proverbial baby with the 

bathwater, but because it has also led to a resurgence in proposed policies that seem to be 

infected with a significant dose of anti-religious discrimination. 

Here I have in mind, for example, recent attempts in San Francisco to ban circumcision. While 

the proposal itself provides little evidence of animus, the cartoon series “Foreskin Man” - 

published by one of the very organizations promoting the circumcision ban231- tells quite a 

different story. To quote from Los Angeles Times columnist Mitchell Landsberg, “The image of 

a bearded, black-hatted Jew with an evil grin and a bloody blade seems straight out of the annals 

of classic European anti-Semitism.”232 Reconsidered in this light, one cannot help but worry that 

initiatives to ban circumcision are simply well-disguised attempts to discriminate against 

religious practices. 

In a similar vein, consider the recent wave of anti-Sharia legislation in the United States. While 

sometimes couched in neutral terms, the goal of such legislation has been to undermine the 

religious infrastructure of the American Muslim community by prohibiting courts from 

considering Islamic law. A recent Kansas court actually deployed the state’s newly enacted antiSharia law to void an Islamic prenuptial agreement because doing otherwise, claimed the court, 

would perpetuate Islamic law’s “basic denial of due process” that grants the husband unilateral 

power to effectuate a divorce. Of course, the court deftly avoided explaining how refusing to 

enforce an agreement that required the husband to pay a substantial sum to the wife further 

perpetuated an allegedly discriminatory system whereby the husband exercised too much 

authority. 

Such logical gaps begin to make one worry that what motivates some legislative enactments and 

judicial opinions is not protecting the weak from discrimination, but targeting religion - 

especially minority religions - for prejudicial treatment on the basis of unfounded animus. Such 

proposals have gained traction precisely because advocates are able to focus popular attention on 

the very worst of religion. But while we must respond swiftly and unapologetically to all forms 

of religious misconduct, we cannot allow religious misconduct to drive the conversation. Doing 

so too easily arms those who would capitalize on instances of misconduct to fuel their 

discriminatory agenda. 

 

231 Matthew Hess, Monster Mohel, FORESKIN MAN 1(2) (MGMbill 2010), available at

http://www.foreskinman.com/no2panel02.htm. 

232 Mitchell Landsberg, Campaign Against Circumcision Evokes Images of Anti-Semitism, LOS ANGELES TIMES (June 

4, 2011), available at http://articles.latimes.com/2011/jun/04/local/la-me-circumcision-20110604. 
238 Peaceful Coexistence Report 

(4) Applying Implied Consent 

Notwithstanding these worries of growing religious discrimination, we must also avoid 

caricaturing all laws that restrict religious conduct as discriminatory. In many instances, laws 

that promote important public policies clash with the desire of individuals to act in accordance 

with their own religious conscience. Instances of true conflict between competing values are not 

a cause for embarrassment. Instead, they require that we mine the underlying logic of the 

constitutional protections afforded religious institutions so as to properly balance the competing 

values at stake. 

By way of example, consider the Department of Health and Human Services promulgation of the 

so-called “contraception mandate,”233 which laudably protects the reproductive rights of women 

by requiring covered employers to include contraception methods in employees’ insurance 

policies.234 However, in enacting this policy, the Department of Health and Human Services has 

provided limited exemptions to religious institutions and organizations who believe complying 

with the mandate will require them to violate the religious consciences.235 Accordingly, this 

debate pits two competing and important values against each other: enhancing reproductive 

rights and protecting religious conscience. 

Evaluating the requests of religious employers for exemption from the contraception mandate 

requires that we extend the underlying logic behind the constitutionally protected autonomy 

granted religious institutions. Religious institutions provide the infrastructure to many religious 

individuals to pursue religious objectives in concert with others. To achieve these religious 

objectives, individuals join religious institutions and, via “implied consent,” grant those 

 

233 42 U.S.C. § 300gg-13(a)(4) (Supp. 5 2011) (“A group health plan and a health insurance issuer offering group or 

individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing 

requirements for— ... (4) with respect to women, such additional preventive care and screenings ... as provided for in 

comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this 

paragraph.”). 

234 See Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan 

Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/ (Guidelines outlining the “contraception 

mandate”). See also Health Resources and Services Administration, Affordable Care Act Ensures Women Receive 

Preventive Services at No Additional Cost (Aug. 1, 2011), available at 

http://www.hhs.gov/news/press/2011pres/08/20110801b.html (press release detailing the Guidelines). 

235 45 C.F.R. § 147.130(a)(iv)(A) (2012) (“In developing the binding health plan coverage guidelines ... the Health 

Resources and Services Administration ... may establish exemptions from such guidelines with respect to group health 

plans established or maintained by religious employers and health insurance coverage provided in connection with 

group health plans established or maintained by religious employers with respect to any requirement to cover 

contraceptive services under such guidelines.”); see also 45 C.F.R. § 147.130(a)(iv)(B) (2012) (defining a “religious 

employer” for purposes of the regulation). The Department of Health and Human Services has subsequently 

proposed new rules for public comment that expand the scope of religious exemptions provided. See Coverage of 

Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8,456, 8,458-9, 8,474 (Feb. 6, 2013) (to be 

codified at 45 C.F.R. § 147.131). 
Panelists’ Written Statements 239 

institutions authority to make rules and develop doctrine that promotes those shared religious 

goals. 

Now the very idea that individuals implicitly grant authority to a religious institution to make 

decisions on religious matters is predicated on a basic assumption: the individuals must know the 

institution is religious and understand that the institution’s purpose is to achieve religious 

objectives. Applied in the context of the contraception mandate, determining which employers 

should receive exemptions as “religious employers” requires us to consider to what extent 

employees were cognizant of their employer’s religious objectives and therefore impliedly 

consented to the authority of their employer to make rules to achieve those objectives. 

Adopting such an approach provides wider protection to companies, organizations and 

institutions that openly and obviously incorporate religion into their day-to-day operations. In 

such instances, employees can be assumed to understand the primary goal of their employer - to 

achieve religious objectives such as faith in salvation in concert with others. And in such 

circumstances, joining the institution can constitute implied consent to the institution’s authority 

over matters touching upon religious faith and doctrine. By contrast, institutions that do not 

make their religious objectives clear to others cannot claim to have constitutionally protected 

autonomy predicated on the implied consent of their employees. Employees that do not know of 

their employers religious objectives cannot be presumed to have consented to the institution’s 

authority over such matters. 

The key to an “implied consent” analysis is that it focuses on the factual context of each 

employer, asking whether religion is truly part and parcel of the institutional culture. What such 

an analysis eschews is the inflexible criteria adopted by the Department of Health and Human 

Services to determine what employers receive exemptions as religious employers.236 Most 

notably, an “implied consent” approach wholly rejects the categorical claim that for-profit 

organizations cannot be exempted from the contraception mandate on the assumption that such 

organizations do not “exercise religion.”237 Instead, using “implied consent” as our guide, we 

should inquire whether a particular employer - whether a non-profit or a for-profit - openly and 

obviously pursues religious objectives in a manner clear to its employees. Indeed, some small 

 

236 45 C.F.R. § 147.130(a)(iv)(B). As noted above, the Department of Health and Human Services has subsequently 

proposed new rules for public comment that expand the scope of religious exemptions provided. See 

http://www.gpo.gov/fdsys/pkg/FR-2013-02-06/pdf/2013-02420.pdf. 

237 This is the argument the government has made in some of its briefs in the course of litigating claims for 

preliminary injunctions against the contraception mandate. See, e.g., Defendants’ Memorandum in Opposition to 

Plaintiffs’ Motion for Preliminary Injunction at 2-3, Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 

(W.D. Okla. 2012) (No. CIV-12-1000-HE) (“Hobby Lobby is a for-profit, secular employer, and a secular entity by 

definition does not exercise religion.”); Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction at 2, 

Tyndale House Publishers., Inc. v. Sebelius, Civ.A. 12-1635 RBW, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) 

(“Tyndale is a for-profit employer that cannot “exercise religion” under RFRA and the Free Exercise Clause.”). 
240 Peaceful Coexistence Report 

corporations and institutions - such as schools238 or companies239 - may pursue religious 

objectives such as faith and salvation as their primary goal. And, in so doing, they seek to 

incorporate religion into the day-to-day operations of their institution - a fact that should give us 

significant pause before we dismiss their claims of religious conscience and impose rules that 

require violating their core religious commitments. 

To be sure, just because institutions “exercise religion” does not mean that such exercise of 

religion should always win the day. Indeed, some values are simply too important - and simply 

too compelling - to provide religious institutions exemptions. To determine what values qualify 

as compelling requires careful consideration and thoughtful balancing. But all such inquiries 

demand that we adopt nuanced evaluation of the claims at stake to ensure that we arrive at the 

best judgment possible so as to maximize the rights of all individuals. 

John D. Inazu 

Thank you for the invitation to address the Commission on the important issue of civil liberties 

and antidiscrimination principles. 

I am an associate professor of law and political science at Washington University in St. Louis. 

My research and scholarship focuses on the First Amendment rights of speech, religion, and 

assembly.240

I’d like to begin by calling attention to the punctuation in the Commission’s title for this briefing: 

“Peaceful coexistence?” The question mark—a kind of qualification—helpfully points us to the 

limits of politics, to the recognition that our most difficult laws and policies unavoidably trade 

costs and benefits. That is certainly the case with the subject of today’s briefing. On the one 

hand, our government is formally committed to equality of opportunity for all citizens, regardless 

of characteristics like race, gender, and sexual orientation. On the other hand, our constitutional 

tradition displays a vibrant and longstanding commitment to the right of individuals to form and 

participate in private groups of their choosing, free from state orthodoxy and coercion. 

Significant constitutional values are at stake on both sides, and whether these values can 

peacefully coexist is not a foregone conclusion. 

I would like to focus on three points in my testimony: (1) the constitutional importance of 

 

238 Anna Bitong, Church Files Suit Against Dismissed Teachers, THOUSAND OAKS ACORN (Feb. 7, 2013), available 

at http://www.toacorn.com/news/2013-02-07/Front_Page/Church_files_federal_suit_against_dismissed_teache.html. 

239 Tyndale House Publishers, Inc. v. Sebelius, Civ.A. 12-1635 RBW, 2012 WL 5817323, at *7 (D.D.C. Nov. 16, 

2012) (noting how the plaintiff seeking an injunction against the contraception mandate holds a voluntary “weekly 

chapel service for its employees”). 

240Portions of this testimony draw from John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (2012). 
Panelists’ Written Statements 241 

groups; (2) the importance of specifying the harms caused by groups and the costs of addressing 

those harms; and (3) the dangers of the “all-comers” logic endorsed by Christian Legal Society v. 

Martinez.241

1. The Constitutional Importance of Groups 

We value groups for many reasons, but we value them constitutionally—under the First 

Amendment—because we believe that they help secure self-realization, self-governance, and 

dissent from majoritarian politics. Most of us believe the groups that we form (or at least some 

of them) are for us and not for the state to control—they are, in a sense, private. And we control 

our private groups by deciding for ourselves on their meaning and value. We are rightly 

skeptical of the government’s ability to interpret the significance of the practices of our groups—

too often, what looks like a public disturbance is a civil rights protest, what sounds like a wail is 

a prayer, what tastes like bread is a Eucharistic celebration. 

We guard against uncharitable interpretations of the internal practices of private groups by 

creating and enforcing strong pluralist protections for our ability to form and gather as groups. 

This pluralist vision draws upon our constitutional text and the history that informs it. We see it 

embedded in the Madisonian notion of faction.242 It is captured in debates in the First Congress 

over the language of the First Amendment.243 It embraces Justice Jackson’s challenge that: 

 

241 Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971, 2980 (2010). The relevant facts of Martinez will likely be set 

forth in other testimony in this briefing, but I will rehearse them briefly in this footnote. The litigation leading up to 

Martinez began in 2004, when the Christian Legal Society (“CLS”) chapter at the University of California, Hastings 

College of the Law in San Francisco sought to become a recognized student organization. Hastings typically granted 

“official recognition” to private student groups, making clear that it “neither sponsor[ed] nor endorse[d]” the views of 

those groups and insisting that they inform third parties that they were not sponsored by the law school. Hastings 

withheld recognition from CLS because the group’s Statement of Faith violated the religion and sexual orientation 

provisions of the school’s Nondiscrimination Policy. Specifically, CLS required that its members adhere to a 

theological creed, which included a belief in Christianity and compliance with a sexual conduct code that limited 

sexual activity to marriage between a man and a woman. Because of these views, the school denied CLS travel funds 

and funding from student activity fees. It also denied them the use of the school’s logo, use of a Hastings email 

address, the opportunity to send mass emails to the student body, participation in the annual student organizations fair, 

and the ability to reserve meeting spaces on campus. Hastings subsequently asserted that its denial of recognition 

stemmed from an “accept-all-comers” policy that required student organizations to accept any student who desired to 

be a member of the organization. CLS filed a federal lawsuit asserting violations of expressive association, free 

speech, free exercise of religion, and equal protection. On appeal, a divided Supreme Court rejected these arguments. 

Justice Ginsburg’s majority opinion asserted that CLS’s speech and association claims “merged,” which allowed her 

to resolve the dispute entirely within a free speech limited-public-forum analysis. She concluded that Hastings’ allcomers policy was “a reasonable, viewpoint-neutral condition on access to the student-organization forum.” Detailed 

citations are available in John D. Inazu, “Justice Ginsburg and Religious Liberty,” 63 Hastings Law Journal 1213 

(2012). 

242See James Madison, Federalist No. 10.

243See generally, Inazu, Liberty’s Refuge, at 21-25 (describing debates over the First Amendment’s assembly clause). 
242 Peaceful Coexistence Report 

We apply the limitations of the Constitution with no fear that freedom to be intellectually and 

spiritually diverse, or even contrary, will disintegrate the social organization. . . . Freedom to 

differ is not limited to things that do not matter much. That would be a mere shadow of freedom. 

The test of its substance is the right to differ as to things that touch the heart of the existing 

order.244

This pluralist vision confronts the façade of the well-ordered and stable society that thrives on an 

imagined consensus. It reveals that our politics are dynamic rather than static and that the 

complexities of living together are always contingent and open-ended. 

The private groups of civil society foster communities of meaning that enable individuals to 

challenge, and even to reject, prevailing consensus norms. This dissenting function sustains 

critiques of state-enforced orthodoxy. The alternative sphere of meaning created by dissenting 

groups has played a central role in many of the country’s most important social movements, 

including the abolitionist, suffragist, labor, and civil rights movements. While the ideals of these 

movements fit comfortably within contemporary political discourse, in their time they posed 

significant threats to prevailing norms and state orthodoxy. 

As these movements demonstrate, the emergence and development of our dynamic political 

ideals depends upon strong constitutional protections for private groups. This insight is 

recognized in our own era as well. Kenneth Karst insists that “one of the points of any freedom 

of association must be to let people make their own definitions of community.”245 William 

Galston suggests that “liberalism requires a robust though rebuttable presumption in favor of 

individuals and groups leading their lives as they see fit, within a broad range of legitimate 

variation, in accordance with their own understanding of what gives life meaning and value.”246 

And David Richards reflects: “the best of American constitutional law rests, I have come to 

believe, on the role it accords resisting voice, and the worst on the repression of such voice.”247

Religious groups have often exemplified this pluralist vision. As Michael McConnell has noted, 

religious freedom embodies “counter-assimilationist” ideals that allow people “of different 

religious faiths to maintain their differences in the face of powerful pressures to conform.”248 

 

244West Virginia Board of Education v. Barnette, 319 U. S. 624, 641-642 (1943). 

245Kenneth L. Karst, “The Freedom of Intimate Association,” 89 Yale Law Journal 629, 688 (1980). See also Roberts 

v. United States Jaycees, 468 U.S. 609, 633 (1984) (O’Connor, J., concurring) (“Protection of the association’s right 

to define its membership derives from the recognition that the formation of an expressive association is the creation of 

a voice, and the selection of members is the definition of that voice.”). 

246Wiliam A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice 3 

(2002). 

247David A. J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat 

to Democracy 13 (2010). 

248Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” 57 University of Chicago Law 

Review 1109, 1139 (1990). 
Panelists’ Written Statements 243 

Professor McConnell has also observed that “genuine pluralism requires group difference, and 

maintenance of group difference requires that groups have the freedom to exclude, as well as the 

freedom to dissent.”249 Secretary of State Hillary Clinton recently reinforced this same idea: 

Religious freedom is not just about religion. It’s not just about the right of Roman Catholics to 

organize a mass or Muslims to hold a religious funeral or Baha’is to meet in each other’s homes 

for prayer, or Jews to celebrate high holy days together. As important as those rituals are, 

religious freedom is also about the right of people to think what they want, say what they think 

and come together in fellowship without the state looking over their shoulder.250

This pluralist vision requires that we extend broad protections not only to formal, political, 

expressive groups but also to groups that are informal, pre-political, and organized for other than 

expressive purposes. Without these protections, the grand experiment of permitting genuine 

political difference comes to an end. Because while some political expressions occur 

spontaneously, most do not. Most expressions flow out of groups of people who gather to eat 

and talk and share and pray long before they make political speeches or enact agendas. Indeed, 

almost every important social movement in our nation’s history began not as an organized 

political party but as an informal group that formed as much around ordinary social activity as 

extraordinary political activity.251

2. Underspecifying Rights and Harms 

Given the significant constitutional values at stake, our laws and policies should specify 

compelling reasons for coercively imposing consensus norms upon private groups and account 

honestly for the rights and values that would be sacrificed by the imposition of those norms. To 

be sure, the autonomy of private groups will sometimes yield to important antidiscrimination 

goals. The norms and laws that arose during the Civil Rights Era led to significant advances in 

equality of opportunity (though that goal is far from fully realized). Employment discrimination 

and public accommodations laws played an important role in these developments. The social 

 

249Michael W. McConnell, “The New Establishmentarianism,” 75 Chicago-Kent Law Review 453, 466 (2000). 

250Hillary Rodham Clinton, Address to Carnegie Endowment for Peace (July 30, 2012). See also Corp. of Presiding 

Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 342 (1987) (Brennan, J., concurring) 

(“For many individuals, religious activity derives meaning in large measure from participation in a larger religious 

community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a 

mere aggregation of individuals.”).

251See, e.g., John Hope Franklin and Alfred A. Moss Jr., From Slavery to Freedom: A History of African Americans 

377 (1994) (describing “moments of informality” spread across clubs, literary parties, and other events that created “a 

cohesive force” among the leaders of the Harlem Rennaisance); Linda Lumsden, Rampant Women: Suffragists and 

the Right of Assembly 3 (1997) (describing suffragist gatherings organized around banner meetings, balls, swimming 

races, potato sack races, baby shows, meals, pageants, and teatimes); Brief of Gays & Lesbians for Individual Liberty 

as Amicus Curiae in Support of Petitioner at 11, Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971 (2010) (No. 08-

1371) (describing “gay social and activity clubs, retreats, vacations, and professional organizations” that fostered 

“exclusively gay environments in which to feel safe, to build relationships, and to develop political strategy.”). 
244 Peaceful Coexistence Report 

changes enabled by and reflected in these laws helped to break coercion in public and 

commercial spaces. With respect to racial integration during the Civil Rights Era, the law also 

broke the segregationist hold in some private spaces, including private educational institutions. 

But the social changes connected with antidiscrimination norms do not by themselves justify the 

application of those norms across all groups and institutions. 

The Supreme Court has sometimes failed to specify the values at stake in cases pitting 

antidiscrimination norms antidiscrimination norms against the constitutional value of pluralism, 

most recently in Christian Legal Society v. Martinez.

252 Let me address first the problem of 

underspecifying the harms caused by private group autonomy. Martinez never detailed the 

particular harms caused by exclusion from membership in this small group of Christian law 

students. It never explained why those harms approximated the political, economic, and social 

harms addressed by civil rights legislation and precedent. Such harms could, of course, exist. 

For example, I have argued in my scholarship that antidiscrimination laws might justifiably limit 

the autonomy of private noncommercial groups when exclusion from membership meaningfully 

curtails access to broader social or economic participation.253 If membership in the Christian 

Legal Society at Hastings College of the Law was a prerequisite to the most desirable legal 

jobs—a feather in the cap surpassing even membership on the Hastings Law Journal—then the 

Christian Legal Society might well lose its constitutional protections. 

But these situations will be exceedingly rare among the private noncommercial groups in civil 

society today, and it is hard to imagine that they were at play with a small Christian group at a 

public law school in San Francisco. The state’s reasons for constraining these groups should be 

defended with precision rather than with broad platitudes. Equality of opportunity is a crucial 

part of our constitutional ethos, but it is not self-justifying in all of its applications. Moreover, 

equality of opportunity ought to focus on genuine access to power and resources, not on the 

 

252Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971, 2980 (2010). 

253See Inazu, Liberty’s Refuge, at 166-175. 
Panelists’ Written Statements 245 

important but distinct interests in dignity and self-respect.254 Even very real injuries to dignity 

and self-respect seldom trump the First Amendment.255

Martinez not only failed to specify the harms caused by exclusion from membership in the 

Christian Legal Society; it also failed to account for the constitutional values at stake in the 

group’s right to exist on its own terms in the public forum. In this regard, it is useful to highlight 

with some precision the facts underlying Martinez. In addition to withholding modest funding 

and the use of its logo, Hastings College of the Law denied the Christian Legal Society the 

opportunity to send mass e-mails to the student body, to participate in the annual student 

organizations fair, and to reserve meeting spaces on campus.256 These activities do not amount 

to sponsorship or state support. They are means of participation in the free exchange of ideas.257 

As the Supreme Court noted in an earlier case: 

If an organization is to remain a viable entity in a campus community in which new students 

enter on a regular basis, it must possess the means of communicating with these students. 

Moreover, the organization’s ability to participate in the intellectual give and take of campus 

debate, and to pursue its stated purposes, is limited by the denial of access to the customary 

media for communicating with the administration, faculty members, and other students. Such 

impediments cannot be viewed as insubstantial.258

 

254Nor did the Christian Legal Society at Hastings College of the Law threaten to undermine the democratic theory of 

free speech advanced by Owen Fiss and others. See, e.g., Owen M. Fiss, The Irony of Free Speech 16 (1996) 

(expressing concern for private expression that would “make it impossible for ... disadvantaged groups even to 

participate in the discussion.”). In fact, given the prevailing orthodoxies at Hastings and in San Francisco, the 

democratic theory of free speech may well have been best served by protecting rather than constraining the Christian 

Legal Society. See Catholic League for Religious and Civil Rights v. City and County of San Francisco, 624 F.3d 

1043 (2010) (en banc) (discussing San Francisco resolution calling the Catholic position on the adoption of children 

by gay couples “absolutely unacceptable,” “hateful and discriminatory,” “both insulting and callous,” showing “a 

level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors”). 

255See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (speech may not be restricted “because [it] may have 

an adverse emotional impact on the audience”); Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2670 (2011) (“Speech 

remains protected even when it may stir people to action, move them to tears, or inflict great pain.” (quoting Snyder v. 

Phelps, 131 S.Ct. 1207, 1220 (2011)). See also Village of Skokie v. National Socialist Part of America, 373 N.E.2d 

21, 24 (Ill. 1978) (permitting the wearing of swastikas in parade through village with high concentration of Holocaust 

survivors) (“We do not doubt that the sight of [the swastika] is abhorrent to the Jewish citizens of Skokie, and that the 

survivors of the Nazi persecutions, tormented by their recollections, may have strong feelings regarding its display. 

Yet it is entirely clear that this factor does not justify enjoining defendants’ speech.”). 

256The monetary subsidy to the Christian Legal Society at Hastings totaled $250 in travel funds, which were financed 

by vending machine sales commissions. Joint Stipulation of Facts for Cross-Motions for Summary Judgment 37, 

Christian Legal Soc’y Chapter of Univ. of Cal. v. Kane, No. C 04-04484 JSW, 2006 WL 997217 (N.D. Cal. May 19, 

2006). 

257See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 840 (1995) (“Student life in its many 

dimensions includes the necessity of wide-ranging speech and inquiry and that student expression is an integral part 

of the University’s educational mission.”). 

258Healy v. James, 408 U.S. 169, 181-82 (1972). 
246 Peaceful Coexistence Report 

As the Court stressed in that case, “the college classroom, with its surrounding environs, is 

peculiarly the ‘marketplace of ideas.’”259 The university ought to be about inquiry, not 

orthodoxy. 

These core ideas of the public forum doctrine were not the only constitutional values ignored in 

Martinez. Neither free exercise nor association rights offered any protection to the religious 

group. The practical irrelevance of these two rights in Martinez cannot be overstated—in each 

case, it wasn’t that the Christian Legal Society lost on a balancing analysis; rather, the Court 

didn’t even bother to apply the analysis. 

3. The All Comers Logic 

My comments thus far have focused on general constitutional principles and values. But it is 

important in the context of this briefing to highlight the particular dangers of the “all-comers” 

policy that requires recognized student groups to accept any student who wants to be a member 

of the group. As a practical matter, most groups will have little problem with such a policy.260 

The Black Law Students Association, the Women’s Law Students Association, and the Law 

School Republicans can generally agree to open membership policies because their membership 

largely self-selects. Nothing in their organizational documents requires that they maintain a 

formal exclusionary position. But groups that require a commitment to certain beliefs or 

practices for membership—groups like conservative religious organizations—will face 

significant consequences. Because these groups will be unwilling to alter their commitments, the 

all-comers policy will operate against them like a classic prior restraint—ensuring that they are 

forced out of the forum before their ideas and values ever manifest.261 When implemented at 

public universities, the all-comers policy undermines the fundamental principles of the public 

forum doctrine. 

 

259Healy v. James, 408 U.S. 169, 180 (1972). 

260It is true that the litigation surrounding the all-comers policy occasionally invoked arguments and 

counterarguments about “takeover” scenarios in which a majority of students hostile to a group’s mission would flood 

its membership and destroy the group—Republican students would take over the Democratic student group, prochoice students would take over the pro-life group. But those scenarios, while not impossible, are largely 

implausible. Most people have better things to do with their time, and in a genuine public forum, interest groups 

coalesce most naturally and most efficiently around more constructive goals. 

261There is, of course, one other kind of student group that is obviously vulnerable under an “all-comers” policy: 

fraternities and sororities that make membership decisions on the basis of gender. But champions of all-comers 

policies across the country have usually exempted these groups. Vanderbilt University’s policy is illustrative—it has 

successfully forced a number of conservative religious groups out of its student forum, while exempting fraternities 

and sororities from the restriction on gender-based discrimination. See “Schools Work to Balance Gay, Religious 

Rights,” Wall Street Journal (February 22, 2012). Vanderbilt’s policy is described at 

http://vanderbilt.edu/about/nondiscrimination/faq.php. It is critiqued in a short video, “Exiled from Vanderbilt,” 

produced by the Foundation for Individual Rights in Education. The video features strong critiques from Vanderbilt 

Law Professor Carol Swain, country music star Larry Gatlin, and journalist Jonathan Rauch. The trio includes a gay 

man and an African-American woman—the all-comers policy doesn’t just threaten straight white men. 
Panelists’ Written Statements 247 

The consequences of the all-comers rationale are spreading. Two recent Ninth Circuit opinions 

echo its logic. In Truth v. Kent, the court concluded that a high school Bible club violated a 

school district’s nondiscrimination policies because the club’s requirement that its members 

“possess a ‘true desire to . . . grow in a relationship with Jesus Christ’ inherently excludes nonChristians.”262 Four years later, the Ninth Circuit relied on Martinez in Alpha Delta v. Reed to 

suggest that a public university might deny official recognition to Christian student groups that 

limit “their members and officers [to those who] profess a specific religious belief, namely, 

Christianity.”263 The entire California State University system has instituted the all-comers 

policy blessed by Martinez.

264 And the “neutrality” rationale is spreading to other contexts as 

well: the Second Circuit has recently upheld a ban on religious worship as “viewpoint neutral” 

under the public forum doctrine.265

Conclusion 

The balance between the liberty of private, noncommercial groups and antidiscrimination 

principles may never reach a “peaceful coexistence.” But our constitutional commitments give 

us better and worse ways of attempting to strike that balance. At the very least, we should expect 

a constitutional discourse that openly acknowledges the various interests at stake in such 

decisions. But we should also hope for the robust constitutional protection of pluralism that 

allows private groups to flourish and holds open the possibility of genuine political difference. 

Thank you for the opportunity to offer these comments. 

 

262Truth v. Kent. Sch. Dist., 542 F.3d 634 (9th Cir. 2008). 

263Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 795-96 (9th Cir. 2011), cert denied, 132 S.Ct. 1743 (2012). 

264See Memorandum from Chancellor Charles B. Reed, December 25, 2011 available at

http://www.calstate.edu/eo/EO-1068.html (mandating all-comers policy for all campuses in the California State 

University system). It is worth noting that the California policy, like Vanderbilt’s policy, exempts fraternities and 

sororities (“The prohibition on membership policies that discriminate on the basis of gender does not apply to social 

fraternities or sororities or other university living groups.”). Unlike Vanderbilt, the California State University system 

is a government actor and subject to the constraints of the First Amendment. The exemption of fraternities and 

sororities likely makes the policy vulnerable to a free exercise challenge by student religious groups in spite of 

Martinez and even under the attenunated free exercise framework established by Employment Division v. Smith, 494 

U.S. 872 (1990). For a roadmap for this kind of free exercise challenge, see Amicus Brief of Constitutional Law 

Professors in Support of Appellees (November 21, 2012) in Stormans v. Selecky (United States Court of Appeals for 

the Ninth Circuit, Nos. 12-35221, 12-35223). 

265Bronx Household of Faith v. Board of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (upholding public 

school board policy prohibiting use of school property for “religious worship services”). The Supreme Court has 

elsewhere imposed questionable limits on the predicate question of what constitutes a public forum. See Locke v. 

Davey, 540 U.S. 712, 715 (2004) (state-run scholarship program is not a public forum). But cf. Rosenberger v. Rector 

and Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995) (public forum principles apply with equal force to fora that 

are “metaphysical,” as opposed to “spatial or geographic.”); Putnam Pit v. City of Cookeville, 221 F.3d 834 (6th Cir. 

2000) (applying public forum analysis to a website). 
248 Peaceful Coexistence Report 

Ayesha N. Khan 

Chairman Castro, Vice-Chairman Thernstrom, and other esteemed members of the Commission, 

thank you for the invitation to address you on legal issues concerning the intersection between 

religious liberties and nondiscrimination principles. 

My name is Ayesha Khan. I am the Legal Director of Americans United for Separation of 

Church & State, a nonprofit organization based here in Washington, DC. At Americans United, 

I lead a seven-lawyer team in litigating cases around the country. Our litigation program is 

designed to advocate for a healthy separation between religion and government, in the belief that 

this separation fulfills the vision of our nation’s Founders and serves as a linchpin of our 

democratic government. 

In keeping with this principle, we have an active amicus curiae practice, submitting more than a 

dozen friend-of-the-court briefs every year in important cases pending before the federal courts of 

appeals and state supreme courts. My organization submitted amicus briefs in both HosannaTabor Evangelical Lutheran Church and School v. EEOC,

266 and Christian Legal Society v. 

Martinez,

267 cases that are of special interest to this panel. 

Today, I will start by summarizing the positions that Americans United advanced, and the decisions 

that the Supreme Court rendered, in those cases. I will then take a step back and discuss the 

broader landscape in which religious individuals and organizations have sought to obtain 

exemptions from legal requirements. Finally, I will close with a discussion of how social and 

legal norms are subject to considerable evolution in this area. 

Christian Legal Society v. Martinez 

In Christian Legal Society, Americans United joined with the American Jewish Committee and the 

Union for Reform Judaism in submitting an amicus brief in defense of the Hastings College of Law’s 

decision to require university-approved student groups to admit all students—regardless of their race, 

gender, religion, or sexual orientation—as a condition of obtaining law-school funds, using the law 

school’s name and logo, and receiving various other benefits. 

We argued that universities have a strong interest in barring exclusionary practices by recognized 

on-campus students’ organizations because a principal purpose of providing these organizations 

with meeting space and financial assistance is to enable students to experience an on-campus 

educational laboratory for democratic values in action. Opportunities to participate in the 

organizational life of these students groups, alongside people of different races, genders, and 

religions, teach students critical interpersonal and leadership skills that are both necessary for 

 

266 132 S.Ct. 694 (2012). 

267 130 S.Ct. 2971 (2010). 
Panelists’ Written Statements 249 

participation in a democratic society and helpful to a student’s career and professional 

opportunities. 

We argued that this interest of the university was especially important because these educational 

opportunities have historically been denied to many students on account of their race, religion, 

gender, or sexual orientation. We recounted how America’s institutions of higher learning have a 

long, sad history of excluding racial and religious minorities. From the 1920s to the late 1940s, 

for example, many universities imposed admissions quotas on Jews; Princeton totally excluded 

blacks; and Harvard and Yale admitted only a handful of each.268 And the minority students 

who were admitted to study were then often denied access to extracurricular organizations and 

social clubs.269 Given this history, we argued, it made eminent sense for Hastings to decline 

to extend official recognition and funding to student groups that seek to discriminate on account 

of religious faith. 

The United States Supreme Court agreed, upholding the law school’s policy by a 5-4 vote. The 

Court explained—with Justice Ginsburg writing, and the ever-important Justice Kennedy 

joining—that Hastings, through its nondiscrimination policy, “is dangling the carrot of subsidy, not 

wielding the stick of prohibition.”270 The Court concluded that the law school’s policy was 

reasonable given the special characteristics of the school environment: the all-comers requirement 

ensured that all students had access to all leadership, educational, and social opportunities 

afforded by the law school, including by its officially recognized and subsidized student groups; 

the requirement allowed the law school to avoid making intrusive inquiries into—or judgments 

about—any student group’s motivation for excluding members; the policy served the law school’s 

educational objective to bring together individuals with diverse backgrounds and beliefs, 

thereby encouraging tolerance and cooperation; and it allowed the law school to avoid 

subsidizing discriminatory conduct that the people of California have determined to be 

unacceptable for public institutions.271

The Court also took comfort in the fact that the Christian Legal Society retained substantial 

alternative channels to meet and communicate. It could still gain access to school facilities to 

conduct meetings, and could use chalkboards and generally available bulletin boards to advertise 

events. And the group did, in fact, host a variety of activities, and even increased its members, 

the year after the law school denied it official recognition.272

 

268 MARCIA GRAHAM SYNNOTT, THE HALF-OPENED DOOR: DISCRIMINATION AND 

ADMISSIONS AT HARVARD, YALE, AND PRINCETON, 1900-1970, at xviii (1979). 

269 Id. 

270 Christian Legal Soc’y, 130 S.Ct. at 2986. 

271 Id. at 2989-91. 

272 Id. at 2991. 
250 Peaceful Coexistence Report 

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 

In Hosanna-Tabor, the issue was whether a parochial school’s termination of a teacher’s 

employment was governed by the Americans with Disabilities Act. The school sought to 

take advantage of the “ministerial exception,” a court-created doctrine that exempts religious entities 

from nondiscrimination statutes under the theory that religious institutions should be able to 

select their ministers and other key personnel without governmental involvement. Before 

Hosanna-Tabor, the lower courts had employed a variety of tests for ascertaining whether an 

employee was covered by the exception. 

We submitted a brief—joined by the American Civil Liberties Union, the National Council of 

Jewish Women, the Sikh Council on Religion and Education, and the Unitarian 

Universalist Association—arguing that the ministerial exception should shield employment 

decisions that are religiously driven, but should not pave the way for discrimination unmoored 

from religious tenets. Drawing that distinction would not embroil the courts in religious 

questions, we argued, as the pretext inquiry is familiar to American courts, and in most cases 

requires no analysis of religious doctrine. If, in a particular situation, a pretext inquiry would 

require consideration of religious doctrine, the court could abstain; but that possibility does not 

justify blanket abstention even when pretext can be divined without entanglement. 

The Court did not adopt our approach. Rather, it declined to adopt any precise legal formula for 

when the ministerial exception will shield an employment decision from legal scrutiny. Instead, 

the Court issued a case-specific ruling: On the basis of “the formal title given [the teacher] by 

the Church, the substance reflected in that title, her own use of that title, and the important 

religious functions she performed for the Church—we conclude that [the teacher] was a minister 

covered by the ministerial exception.”273

The Broader Arena 

Hosanna-Tabor and Christian Legal Society present only the tip of the vast iceberg of situations in 

which religious groups and individuals have sought to evade antidiscrimination provisions. 

Landlords—in Alaska, California, Massachusetts, and elsewhere—have refused to rent 

property to persons living together out of wedlock, claiming the right to an exemption from antidiscrimination ordinances prohibiting discrimination on the basis of marital status.274

Many businesses that normally provide their services to the general public have declined to 

comply with antidiscrimination statutes protecting gay people. A medical provider refused to 

 

273 Hosanna-Tabor Evangelical Lutheran Church & Sch., 132 S.Ct. at 708. 

274 Thomas v. Anchorage Equal Rights Comm’n, 102 P.3d 937 (Alaska 2004); Smith v. Fair Emp’t & Hous. 

Comm’n, 12 Cal. 4th 1143 (Cal. 1996); Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994). 
Panelists’ Written Statements 251 

provide fertility treatments to a lesbian.275 A photography company refused to photograph a samesex commitment ceremony.276 And a physician in Kentucky refused to hire gay people, in 

violation of an ordinance that prohibits employers from discriminating in hiring on the basis of 

sexual orientation.277

Students enrolled in public-university counseling programs have sought exemptions from the 

American Counseling Association’s ethical code’s prohibition on discrimination against gay 

people.278

In these situations, as in Christian Legal Society and Hosanna-Tabor, the antidiscrimination statutes 

did not themselves provide an exemption, so the courts were obliged to ascertain whether an 

exemption was required by another state or federal statutory or constitutional provision. 

But several antidiscrimination statutes do in fact provide exemptions. For example, Title VII 

exempts religious organizations from complying with the prohibition against religious 

discrimination.279 So does the federal Fair Housing Act.280

Some of these exemptions go beyond the prohibition against religious discrimination; like the 

ministerial exception, they allow religious organizations to discriminate on any grounds, religious 

or otherwise. Washington State’s human rights law, for instance, exempts all religious 

nonprofits from all antidiscrimination requirements.281 Religious nonprofits are likewise wholly 

exempt from California’s Fair Employment & Housing Act, and are therefore permitted to 

discriminate on any basis.282 Litigation arises only when an antidiscrimination statute does not 

authorize exemptions, or when a religious group or individual seeks an exemption beyond that 

provided by the statute. 

Religious individuals and entities have sought exemptions not just from antidiscrimination statutes, 

but from a wide range of other legal and ethical requirements: 

The issue frequently arises in the context of women’s reproductive freedom. Pharmacies and 

pharmacists have refused to dispense medications to which they are religiously opposed, 

 

275 N. Coast Women’s Care Med. Grp., Inc. v. San Diego Superior Court, 44 Cal. 4th 1145 (Cal. 2008). 

276 Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. Ct. App. 2012), cert. granted, 2012- NMCERT-8 

(N.M. Aug. 16, 2012). 

277 Hyman v. City of Louisville, 53 F. App’x 740 (2002). 

278 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012); Keeton v. Anderson-Wiley, 664 F.3d 865 (11th Cir. 2011). 

279 Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). 

280 Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 657 F.3d 988 (9th Cir. 2011). 

281 Ockletree v. Franciscan Health Sys., No. 11-cv-05836-RBL, 2012 WL 6146673 (W.D. Wash. Dec. 11, 2012). 

282 Methodist Hosp. of S. Cal. v. Superior Court, No. B134748, 2002 WL 479750 (Cal. Ct. App. Mar. 29, 2002) 

(unpublished); Kelly v. Methodist Hosp. of S. Cal., 22 Cal. 4th 1108 (Cal. 2000). 
252 Peaceful Coexistence Report 

despite local ordinances requiring pharmacies to dispense all prescribed medications.283 

Religious nonprofits have sought religious exemptions from state statutes requiring the 

provision of insurance coverage for contraception to the same extent that other prescription 

medications are covered.284 And both for-profit and nonprofit entities have sought exemptions 

from the Affordable Care Act’s requirement that women be provided with coverage for 

contraception.285

Muslim taxicab drivers in Minnesota have sought an exemption that would allow them to 

decline passengers who are carrying alcohol.286

Muslim women have sought to avoid being photographed without a veil for their driver’s 

license, and to wear a veil while testifying in court (thereby affecting a jury’s ability to rely on 

facial expressions to assess credibility).287

Religious businesses and organizations have sought exemptions from health and safety codes, labor 

laws, zoning requirements, and other regulatory schemes.288

Individuals have sought religion-based exemptions from the nation’s drug laws—the most 

famous such case being Employment Division v. Smith, in which the Supreme Court declined to 

grant such an exemption under the Free Exercise Clause.289

And parents have sought to avoid criminal or civil liability for harms that result from their 

decisions to heed a religious requirement to rely on spiritual rather than medical care for the 

treatment of their children’s illnesses. 

Parents also seek exemptions from school-related requirements: 

In Wisconsin v. Yoder, the Amish won the right to an exemption from state compulsoryeducation laws.290

 

283 See, e.g., Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). 

284 See, e.g., Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527 (Cal. 2004). 

285 See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012), denying injunction 

pending appeal, 133 S.Ct. 641 (2012); Legatus v. Sebelius, — F. Supp. 2d —, No. 12-12061, 2012 WL 5359630 

(E.D. Mich. Oct. 31, 2012). 

286 Metropolitan Airports Comm’n Meeting Minutes 4-5, Apr. 16, 2007, available at http://metroairports.org/ 

mac/appdocs/meetings/Fc/Minutes/FC_M_782.pdf (last visited Mar. 11, 2013). 

287 Council on American-Islamic Relations v. Callahan, No. 09-13372, 2010 WL 1754780 (E.D. Mich. Apr. 29, 2010); 

Muhammad v. Paruk, 553 F. Supp. 2d 893 (E.D. Mich. 2008); Freeman v. State, No. 2002-CA-2828, 2003 WL 

21338619 (Fla. Cir. Ct. June 6, 2003). 

288 See, e.g., Univ. of Great Falls v. N.L.R.B., 278 F.3d 1335 (D.C. Cir. 2002); Affordable Recovery Hous. v. City of 

Blue Island, No. 12-cv-4241, 2012 WL 2885638 (N.D. Ill. July 13, 2012). 

289 494 U.S. 872 (1990). 
Panelists’ Written Statements 253 

Parents of public-school students have sought to have their children excused from attending 

classes or school programs in which religiously objectionable information is included in the 

curriculum.291

Parents have likewise sought religious exemptions from statutes that require their children to 

receive certain vaccinations as a condition of attending public school.292

And employees regularly invoke Title VII’s reasonable-accommodation requirement in seeking 

religious exemptions from workplace requirements: 

Police officers seek exemptions from performing certain activities, such as guarding abortion 

clinics, to which they are religiously opposed.293

And there are scores of cases in which employees—such as police officers, correctional 

officers, and mass-transit employees—have sought exemptions from clothing and grooming 

requirements on religious grounds.294

In each of these situations, the courts have evaluated the facts, the relevant statutory and 

constitutional provisions, the burdens imposed by the regulation in question, any harm that would 

result to third parties if an exemption were to be granted, and other criteria pertinent to the particular 

situation. In the end, the sought-after exemption has been granted in some cases; in others, it has 

been denied. And rightfully so: it is simply untenable to rely on a one-size-fits-all approach in 

circumstances as varied as these. 

 

 290 406 U.S. 205 (1972). 

291 See, e.g., Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) (public-school curriculum intended to encourage 

respect for gay persons and couples did not violate parents’ or students’ free-exercise rights); Leebaert v. Harrington, 

332 F.3d 134 (2d Cir. 2003) (rejecting plaintiff’s religious objections to health curriculum that included family-life 

instruction and AIDS education; curriculum satisfied rational-basis review); Brown v. Hot, Sexy & Safer Prod., Inc., 

68 F.3d 525 (1st Cir. 1995) (public high school’s mandatory AIDS-awareness assembly did not violate plaintiffs’ freeexercise rights), abrogated on other grounds by Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010). 

292 See, e.g., Hadley v. Rush Henrietta Cent. Sch. Dist., No. 05-CV-6331T, 2007 WL 1231753 (W.D.N.Y. Apr. 

25, 2007); Boone v. Boozman, 217 F. Supp. 2d 938 (E.D. Ark. 2002); Huffman v. State, 204 P.3d 339 (Alaska 2009). 

293 See Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998) (city reasonably accommodated police officer’s 

religious objection to guarding an abortion clinic when it provided him the opportunity to transfer, without 

reduction in pay or benefits, to a district without an abortion clinic); see also Endres v. Ind. State Police, 349 F.3d 922 

(7th Cir. 2003) (state police did not violate Title VII or Free Exercise Clause for terminating officer who refused, on 

religious grounds, to work at casino); Fields v. City of Tulsa, No. 11-cv-115-GKF-TLW, 2012 WL 6214578 (N.D. 

Okla. Dec. 13, 2012) (police department did not violate First Amendment when it disciplined an officer who refused to 

attend, or to order subordinates to attend, a community event at the Islamic Society of Tulsa); Endres v. Ind. State 

Police, 794 N.E.2d 1089 (Ind. Ct. App. 2003) (police officer’s discharge for refusing to work as riverboat gaming 

agent did not materially burden religious freedom), vacated in part, 809 N.E.2d 320 (Ind. 2004). 

294 Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004) (upholding prohibition on employees’ body 

piercings). 
254 Peaceful Coexistence Report 

The Role of Evolving Social, Religious, and Legal Norms295

The courts’ decisions in these cases have been influenced not just by the facts and law pertinent to 

any given situation, but also by evolving social, religious, and legal norms. 

For example, as mentioned above, parents of today’s public-school students often seek exemptions 

on religious grounds from curricula that include objectionable content.296 But in earlier 

years, litigants did not seek exemptions; they sought to have the challenged material stricken 

altogether.297 When that failed, parents turned their sights to obtaining opt-outs. 

Litigants’ arguments have also been greatly influenced by changes in religious norms. The 

evolution of religious and social thought—and its concomitant effect on judicial decisionmaking—is particularly notable in the civil-rights arena. As formerly targeted minority groups 

have gained greater public acceptance, religious thought, and litigants’ positions, have evolved 

accordingly. Courts have likewise shown sensitivity to the dynamic relationship between 

social norms and religious thought. 

Racial Discrimination. From the colonial period until the ratification of the Thirteenth Amendment, 

supporters of slavery frequently relied on scripture to argue that slavery was not only justified, but 

required, by religious doctrine.298 Slavery’s supporters argued that “‘the Negro was a heathen and 

a barbarian, an outcast among the peoples of the earth, a descendant of Noah’s son Ham, cursed 

by God himself and doomed to be a servant forever on account of an ancient sin.’”299 A related 

belief was that “negroes were human but that unlike whites they were not created in the image of 

God and [were] one of several inferior races created by God after Adam.”300 Defenders of 

slavery also emphasized “that God’s Chosen (Abraham, Isaac, and Jacob) owned slaves and 

 

295 Much of the discussion in this section is taken from an amicus curiae brief submitted by Americans United and 

various other groups in Hollingsworth v. Perry, No. 12-144, a case currently pending before the U.S. Supreme Court. 

The brief was principally written by Christopher Handman and his team at Hogan Lovells US LLP, in Washington, 

DC—a team that rightfully gets the credit for anything of value, but not the blame for any errors, contained in this 

portion of my testimony. 

296 See supra note 292 and accompanying text. 

297 See, e.g., Smith v. Bd. of Sch. Comm’rs, 827 F.2d 684 (11th Cir. 1987) (rejecting argument that home economics, 

history, and social studies textbooks advanced secular humanism or inhibited theistic religion in violation of 

Establishment Clause); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528 (9th Cir. 1985) (public-school board’s 

refusal to remove book from sophomore English curriculum did not violate Free Exercise Clause or constitute an 

establishment of religion). 

298 William N. Eskridge Jr., Noah’s Curse: How Religion Often Conflates Status, Belief and Conduct to Resist 

Antidiscrimination Norms, 45 GA. L. REV. 657, 666-67 (2011). 

299 DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW 

AND POLITICS 12 (1978) (quoting GUNNAR MYRDAL ET AL., AN AMERICAN DILEMMA: THE 

NEGRO PROBLEM AND MODERN DEMOCRACY 85 (1944).

300 JOHN D. SMITH, THE BIBLICAL AND “SCIENTIFIC” DEFENSE OF SLAVERY XXV-VI (1993). 
Panelists’ Written Statements 255 

that Leviticus required the Israelites to secure ‘bondsmen’ from among the ‘heathen’ surrounding 

Israel” that were to be “inherit[ed] . . . for a possession.”301

These scriptural justifications were not embraced by extremist sects alone. They reflected 

the dominant viewpoint of nearly every major religious group in the United States at the time. In 

fact, when abolitionists began to mount challenges to slavery, clergy of all denominational stripes 

were among the institution’s most ardent defenders.302 Following Lincoln’s Emancipation 

Proclamation, ninety-six religious leaders from eleven different denominations issued a 

proclamation of their own, entitled “An Address to Christians Throughout the World,” demanding 

the preservation of slavery.303

The biblical defense of slavery took hold in the courts as well. For example, in Scott v. Emerson, 

the Missouri Supreme Court counseled: 

When the condition of our slaves is contrasted with the state of their miserable race in Africa; 

when their civilization, intelligence, and instruction in religious truths are considered . . . we are 

almost persuaded, that the introduction of slavery amongst us was, in the providence of God ... a 

means of placing that unhappy race within the pale of civilized nations.304

Even the United States Supreme Court accepted a religiously rooted notion of African-Americans 

as inferior, noting that this inferiority “was regarded as an axiom in morals as well as in politics, 

which no one thought of disputing.”305

When slavery was outlawed by the Thirteenth Amendment, those opposed to equal rights for former 

slaves simply modified their reading of scripture: If the Bible no longer could be read to condone 

slavery, it could at least be read to mandate segregation.306 And just as with slavery, these 

arguments gained widespread acceptance, including within the judiciary. In West Chester & 

Philadelphia Railroad Co. v. Miles, the Pennsylvania Supreme Court opined that “following the 

order of Divine Providence, human authority ought not to compel these widely separated races to 

intermix.”307 Thus the legal basis for segregation: “When, therefore, we declare a right to 

maintain separate relations, as far as is reasonably practicable, but in a spirit of kindness and 

charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of 

 

301 Eskridge, supra n. 298 at 667 (emphasis added). 

302 Id. at 669. 

303 Id.

304 15 Mo. 576, 587 (Mo. 1852). 

305 Dred Scott v. Sandford, 60 U.S. 393, 407 (1856), superseded by constitutional amendment, U.S. CONST. amend. 

XIV. 

306 Eskridge, supra n. 298 at 673-74. 

307 55 Pa. 209, 213 (Pa. 1867). 
256 Peaceful Coexistence Report 

any kind, but simply to suffer men to follow the law of races established by the Creator himself . . 

. .”308 Other courts repeatedly relied on this passage in upholding Jim Crow laws.309

But as laws supporting segregation began to fall, the arguments shifted again: they began to focus 

more on religious liberty and the associational freedom of white Christians not to associate with nonwhites.310 After the Supreme Court struck down the “separate but equal” doctrine in Brown v. 

Board of Education, Southern churches created religious academies so that white Christians would 

not have to attend desegregated schools.311 When the Treasury Department rescinded those 

private schools’ tax-exempt status, Southern fundamentalists protested that the government was 

infringing on their religious liberty to run segregated schools as the Bible demanded.312

As late as 1983, Bob Jones University made the same argument before the United States 

Supreme Court in defending its segregationist admissions policy.313 As you undoubtedly know, 

the Court rejected the university’s position. Around that same time, the Court referred to Dred 

Scott as one of the three worst decisions in history.314

Gender Discrimination. Similar arguments grounded in religion and morality have been advanced 

to support laws discriminating against women.315 As one scholar has noted: “There is assumed 

to be a literal scriptural foundation for a patriarchal family governance structure of husband as 

‘head’ of the household,” with his “wife as caregiver/homemaker and submissive or 

deferential to the husband’s authority.”316

As with race, this belief structure influenced judicial decision-making. In Bradwell v. Illinois, for 

example, a member of the United States Supreme Court opined that Illinois could deny women 

admission to the state bar because “[t]he natural and proper timidity and delicacy which belongs to 

the female sex evidently unfits it for many of the occupations of civil life.”317 That God 

 

308 Id. at 214. 

309 See, e.g., Berea Coll. v. Commonwealth, 94 S.W. 623, 628 (Ky. 1906); Bowie v. Birmingham Ry. & Elec. Co., 125 

Ala. 397, 409 (Ala. 1900); State v. Gibson, 36 Ind. 389, 405 (Ind. 1871). 

310 Eskridge, supra n. 298 at 672-75. 

311 U.S. COMM’N ON CIVIL RIGHTS, DISCRIMINATORY RELIGIOUS SCHOOLS AND TAX EXEMPT 

STATUS 1 (1982). 

312 See Tax Exempt Status of Private Schools: Hearing Before the Subcomm. on Taxation and Debt Management 

Generally of the S. Comm. on Finance, 96th Cong. 18 (1979). 

313 See Bob Jones Univ. v. United States, 461 U.S. 574, 602-03 (1983). 

314 See South Carolina v. Regan, 465 U.S. 367, 412 (1984). 

315 Angela L. Padilla & Jennifer J. Winrich, Christianity, Feminism, and the Law, 1 COLUM. J. GENDER & 

L. 67, 75-86 (1991). 

316 Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 

FORDHAM L. REV. 1617, 1643 (2001). 

317 83 U.S. 130, 141 (1872) (Bradley, J., concurring in the judgment). 
Panelists’ Written Statements 257 

ordained women to be homemakers, not lawyers, provided the key justification for this view: 

“The constitution of the family organization, which is founded in the divine ordinance, as well as 

in the nature of things, indicates the domestic sphere as that which properly belongs to the 

domain and functions of womanhood. . . . The paramount destiny and mission of woman are to 

fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”318

Over time, however, many religious groups modified their views and some even embraced the 

precise opposite of their old approach to women’s rights issues. Many Protestant churches, for 

example, now ordain women and embrace gender-neutral policies,319 and have introduced 

programs to address discrimination against women within the church.320

And in largely parallel fashion over the past four decades, the United States Supreme Court has 

rejected earlier, religiously based views regarding the place of women in society. In Mississippi 

University for Women v. Hogan, for example, the Court held that any test for determining the validity 

of gender-based classifications “must be applied free of fixed notions concerning the roles and 

abilities of males and females.”321 And in Frontiero v. Richardson, the Court, repudiating 

Justice Bradley’s concurrence in Bradwell, noted the “long and unfortunate history of sex 

discrimination” in America.322

Sexual-Orientation Discrimination. Until recently, many religions vehemently opposed 

homosexuality and homosexual behavior—and the law followed suit. Between 1879 and 1961, 

most American states and the federal government adopted statutes criminalizing sodomy and 

imposing civil disabilities on gay people.323 These laws were premised, at least in part, on the view 

that same- sex sodomy is a carnal sin and contrary to biblical purity rules.324

The anti-gay rhetoric, and action, only intensified as the gay-rights movement began to emerge. 

In 1965, “the Roman Catholic Church . . . almost single-handedly blocked sodomy reform in New 

York based upon the Church’s view that sodomy is a carnal sin.”325

In 1972, Mormon activists in Idaho convinced that state to reverse course and reinstate a sodomy 

ban it had just repealed.326 In 1986, the President of the Southern Baptist Convention preached that 

 

318 Id. 

319 See Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. REV. 1, 44 (2011). 

320 See Elisabeth S. Wendorff, Employment Discrimination and Clergywomen: Where the Law Has Feared to Tread, 

3 S. CAL. L. & WOMEN’S STUD. 135, 147-48 (1993). 

321 458 U.S. 718, 724-25 (1982). 

322 411 U.S. 677, 684 (1973). 

323 Eskridge, supra n. 298 at 689. 

324 Id. at 689-90. 

325 Id. at 690. 
258 Peaceful Coexistence Report 

“God Himself created AIDS to show His displeasure with homosexuality.”327 And two years 

later, Southern Baptists adopted a formal resolution condemning homosexuality as an 

“abomination in the eyes of God.”328

But more recently, religious teachings have shifted—some quite dramatically.329 In 1978, less 

than a decade after the Stonewall Riots ushered in the gay-rights movement, the Presbyterian 

Church issued a comprehensive statement concluding, after reexamining scripture, that the “Sin of 

Sodom” was rape (rather than gay sex) and that “St. Paul’s condemnations refer to dissolute 

behaviors rather than to any and all homosexual relations.”330 By 1986, most mainstream 

Protestant denominations had decided that the Bible does not support criminal sanctions 

against consensual same-sex relations.331

Some religious denominations have gone much further. During the last three decades, most 

mainstream Protestant denominations, including the Presbyterian Church, the Episcopal Church, the 

United Methodist Church, the Quakers, the Unitarian Universalist Association, the American 

Lutheran Church, the United Church of Christ, and the Disciples of Christ have announced that 

LGBT people are entitled to equal treatment and have issued statements beseeching their members 

not to reject LGBT congregants.332 During this same period, Reform Jews, Unitarians, and the 

United Church of Christ began ordaining openly gay rabbis and ministers.333 The Episcopal 

Church followed suit in 1989.334

Indeed, even some groups that previously resisted gay rights have embraced a more tolerant stance 

of late. In 1994, the Vatican issued a statement that LGBT persons “must be accepted with 

respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be 

avoided.”335 And the Southern Baptist Convention has questioned the vehemence of its earlier 

condemnations. In 2009, the editor of the Baptist Standard asserted that expelling LGBT 

 326 Id. at 692. 

327 Id. at 695. 

328 Id. at 695-96 (quoting ORAN P. SMITH, THE RISE OF BAPTIST REPUBLICANISM app. D, at 221 

(1997)). 

329 See generally Eskridge, supra n. 298 at 693-704. 

330 Id. at 700-01. 

331 Id. at 699. 

332 Id. at 699-700. 

333 Id. at 707. 

334 Id.

335 Eskridge, supra n. 298 at 704 (quoting CATECHISM OF THE CATHOLIC CHURCH, No. 2358, at 566 (1994)). 
Panelists’ Written Statements 259 

members from the church was not “redemptive” because it singles out one sin while turning a 

blind eye to others.336

The United States Supreme Court’s rulings have tracked this evolution. In Bowers v. Hardwick, 

the Court upheld Georgia’s criminal prohibition on oral and anal sex as valid under the Due 

Process Clause.337 The majority opinion held that moral disapproval of homosexuality provided 

a rational basis for the law. Rejecting the argument that “the presumed belief of a majority of the 

electorate in Georgia that homosexual sodomy is immoral and unacceptable” was “an inadequate 

rationale to support the law,” the Court wrote: “The law, however, is constantly based on notions 

of morality, and if all laws representing essentially moral choices are to be invalidated under the 

Due Process Clause, the courts will be very busy indeed.”338 Chief Justice Burger’s concurring 

opinion added citations to religious condemnation of same-sex relations and forceful 

statements that “[c]ondemnation of [homosexual conduct] is firmly rooted in Judeo-Christian 

moral and ethical standards.”339

Bowers, of course, did not last long. The Court presaged its demise just ten years later in Romer 

v. Evans.

340 There, the Court held that a Colorado constitutional amendment that would have 

removed all legal protections for gay men and lesbians as a class had no “legitimate governmental 

purpose.”341 The Court reached that conclusion without so much as mentioning Bowers or 

the supposedly legitimate interest in enshrining the community’s moral and religious views 

that Bowers had endorsed, and that the Romer dissent insisted should control the case.342

Finally, in Lawrence v. Texas, the Supreme Court squarely rejected Bowers in the strongest possible 

terms.343 In striking down Texas’s criminal ban on same-sex intercourse, the Court directly 

rejected any argument that moral and religious disapproval could suffice as a rational basis for 

Texas’s law. “[R]eligious beliefs, conceptions of right and acceptable behavior, and . . . . 

ethical and moral principles . . . . do not answer the question before us,” it explained.344 “The 

issue is whether the majority may use the power of the State to enforce these views on the 

 

336 Id. at 705-06 (quoting Marv Knox, Editorial, It’s Time to Talk About Homosexuality, BAPTIST STANDARD 

(July 11, 2009), http://www.baptiststandard.com/opinion/editorial/9802-editorial-its 

-time-to-talk-about-homosexuality). 

337 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). 

338 Bowers, 478 U.S. at 196. 

339 Id. at 196-97 (Burger, C.J., concurring). 

340 517 U.S. 620 (1996). 

341 Id. at 635. 

342 See id. at 636, 640-43 (Scalia, J., dissenting). 

343 539 U.S. at 564-78 (stating that “Bowers was not correct when it was decided, and it is not correct today”). 

344 Id. at 571. 
260 Peaceful Coexistence Report 

whole society through operation of the criminal law.”345 Ultimately, the Court concluded that 

“[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the 

personal and private life of the individual.”346

This trajectory can also be seen in the context of gay marriage. To be sure, for the Catholic 

Church, Mormons, Southern Baptists, and some other groups, marriage equality has become 

“the new Maginot Line for homosexuality.”347 But moral and religious condemnations of samesex marriage have otherwise waned in recent years. A number of groups, including the 

Episcopal Church, the United Assembly of Hebrew Congregations (Reform Jews), the Unitarian 

Universalist Church, the United Church of Christ, and the Quakers, now embrace marriage 

equality.348

Other groups have taken more incremental approaches. In 2004, the Presbyterian General 

Assembly passed a resolution supporting laws recognizing same-sex relationships.349 In 2009, the 

Evangelical Lutheran Church in America voted by a substantial majority to “commit to finding 

ways to allow congregations that choose to do so to recognize, support and hold publicly 

accountable, lifelong, monogamous, same-gender relationships.”350

Of course, “the shift of religious discourse toward acceptance of gay people has continued at 

different paces for different denominations.”351 Change has not come overnight, but neither did 

the abolition of slavery, desegregation, or women’s rights. The bottom line is that “the tension 

between equal rights for gay people and liberty for religious people has been obliterated for a 

good many denominations and reduced for others,” and “the evolution continues.”352

I mention this history not to suggest that the Christian Legal Society and the Hosanna-Tabor 

Evangelical Lutheran Church and School are akin to litigants who have advanced religious 

arguments to justify slavery, segregation, gender discrimination, and homophobia. I offer it 

simply to illustrate that religious, social, and legal norms about discrimination are far from static. 

 

345 Id. 

346 Id. at 578 (emphasis added). 

347 Eskridge, supra n. 298 at 708. 

348 Faith Positions, HUMAN RIGHTS CAMPAIGN, available at http://www.hrc.org/resources/entry/faithpositions (last visited Mar. 11, 2013). 

349 Stances of Faiths on LGBT Issues: Presbyterian Church (USA), HUMAN RIGHTS CAMPAIGN, available 

at http://www.hrc.org/resources/entry/stance-of-faiths-on-lgbt-issues-presbyterian-church-usa (last visited Mar. 11, 

2013). 

350 Stances of Faiths on LGBT Issues: Evangelical Lutheran Church in America, HUMAN RIGHTS 

CAMPAIGN, available at http://www.hrc.org/resources/entry/stances-of-faiths-on-lgbt-issues-evangelicallutheran-church-in-america (last visited Mar. 11, 2013) (quotation marks omitted). 

351 Eskridge, supra n. 298 at 704-05. 

352 Id. at 709. 
Panelists’ Written Statements 261 

So the kinds of exemptions that we consider necessary today may be deemed impermissible, 

and even morally repugnant, tomorrow. 

Conclusion 

In sum, the courts have done a reasonably competent job of rendering fair-minded, case-specific 

decisions about whether an exemption is appropriate in any given situation. Their conclusions 

have been influenced not just by pertinent facts and law, but also by changing religious and social 

norms. And that is as it should be. 

Daniel Mach 

Members of the Commission, thank you for the invitation to participate in today’s briefing. I am 

honored to be here on behalf of the ACLU to address issues of religious liberty and civil rights. 

I am pleased to submit this written statement for the record. 

The American Civil Liberties Union (ACLU) is an organization with over half a million 

members, countless additional supporters and activists, and fifty-three affiliates nationwide. The 

ACLU is a nonprofit, nonpartisan organization working daily in the courts, Congress, state 

legislatures, and communities across the country to defend and preserve the principles embodied 

in the Constitution and our nation’s civil rights laws. 

The issues addressed by the Commission today lie at the heart of the ACLU’s mission. For nearly 

a century, the ACLU has fought to safeguard religious liberty. We work ardently to bolster the 

two complementary protections enshrined in the Religion Clauses of the First Amendment, 

defending the free exercise right to religious belief and expression,353 and promoting the 

Establishment Clause guarantee that government not play favorites with faith. At the same time, 

the ACLU has stood firm in opposing discrimination in this country, fighting for decades to 

secure civil rights and equality for all. 

You have invited me to address two recent Supreme Court decisions that touch upon the 

intersection of these fundamental rights and liberties, Hosanna-Tabor Evangelical Lutheran 

Church and School v. EEOC354 and Christian Legal Society v. Martinez.

355 Although doctrinally 

distinct, each involves claims by religiously affiliated organizations seeking an affirmative 

constitutional right to act, pursuant to deeply held beliefs, in a way that would otherwise be 

barred by governmental antidiscrimination rules. In Hosanna-Tabor, the Court reiterated what 

every lower court to address the issue had already concluded - namely, that the First Amendment 

 

353 See www.aclu.org/defendingreligion. 

354 132 S.Ct. 694 (2012). 

355 130 S.Ct. 2971 (2010). 
262 Peaceful Coexistence Report 

gives houses of worship and affiliated institutions wide latitude when selecting their ministers. In 

Christian Legal Society, on the other hand, the Court rejected a student group’s claimed 

constitutional exemption to a public university’s nondiscrimination policy, holding that state 

entities have broad discretion not to affiliate with and fund discrimination. Taken together, the 

decisions evince a respect for both religious liberty and civil rights. 

Hosanna-Tabor v. EEOC

In Hosanna-Tabor, the Supreme Court ruled that churches may assert a legal defense, called the 

“ministerial exception,” in response to employment discrimination claims brought by their 

ministers. The case involved a lawsuit under the Americans with Disabilities Act (ADA) filed by 

the Equal Employment Opportunity Commission (EEOC) and Cheryl Perich, a teacher at a 

private religious school operated by the Hosanna-Tabor Evangelical Lutheran Church. Perich 

and the EEOC claimed that the school illegally fired Perich after she took a leave of absence to 

treat her narcolepsy and in retaliation for asserting her ADA right to be free from disability-based 

discrimination. The Court held, however, that Perich was a minister of the church and that her 

discriminatory termination claim was therefore barred by a constitutionally mandated ministerial 

exception. According to the Court, this exception exists to “ensure[] that the authority to select 

and control who will minister to the faithful - a matter strictly ecclesiastical - is the church’s 

alone.”356

Describing the sources of the ministerial exception, the Supreme Court explained that “[t]he 

Establishment Clause [of the First Amendment] prevents the Government from appointing 

ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious 

groups to select their own.”357 These dual protections ensure that religious entities enjoy 

considerable autonomy in the choice of ministers - that is, the selection of leaders who can 

perform the requisite religious functions in accordance with the faith’s beliefs, teachings, and 

mission. Such judicial deference over matters of doctrine is critical to ecclesiastical 

independence and, therefore, to religious liberty as a whole. 

Although the ACLU would have drawn slightly different lines, we fully embrace these basic 

principles underlying the Hosanna-Tabor decision, recognizing that a constitutionally grounded 

ministerial exception serves crucial religious-liberty interests. 

In assessing the exception, however, it is important to understand its reach and limits. These are 

evident from the Hosanna-Tabor decision itself, the special constitutional concern for religious 

autonomy in the choice of ministers recognized by the Court, and the particular facts of Perich’s 

situation. 

 

356 132 S.Ct. at 709 (internal quotation marks and citation omitted). 

357 Id. at 703. 
Panelists’ Written Statements 263 

First, the Court emphasized that “the exception applies only to suits by or on behalf of ministers 

themselves.”358 Religious institutions cannot assert the ministerial exception as a defense to 

lawsuits brought by employees who are not ministers. The Court’s ruling in Hosanna-Tabor 

does not, therefore, give religious institutions a blank check to discriminate against employees 

who are not ministers. 

Second, while the “ministerial exception is not limited to the head of a religious congregation,” it 

plainly does not cover every employee of a religious institution, many of whom have no duties 

that relate to ministering to the flock.359 Whether an employee qualifies as a minister for 

purposes of this exception is based on a combination of factors relating to the nature of the 

employee’s position, duties, and responsibilities. In Hosanna-Tabor, the Court relied on the fact 

that the church held Perich out as a minister, and she considered herself to be one. She 

undertook religious training and education to gain the position, and she was then “commissioned 

as a minister only upon election by the congregation, which recognized God’s call to her to 

teach.”360 In addition, Perich’s “job duties reflected a role in conveying the Church’s message 

and carrying out its mission,” including teaching religion, leading prayer, and occasionally 

leading chapel services.361 The Court noted that each of these considerations, taken alone, may 

have been insufficient grounds upon which to invoke the ministerial exception, but found the 

combination of factors to be persuasive evidence that Perich was a minister. This multi- factor, 

nuanced analysis ensures that religious institutions may not skirt employment discrimination 

laws simply by giving all employees the title of “minister” or assigning each employee a few 

religious duties. 

In fact, the Supreme Court expressly reaffirmed in Hosanna-Tabor that “[t]he interest of society 

in the enforcement of employment discrimination statutes is undoubtedly important.”362 In light 

of that interest, the Court’s decision is crafted to honor the vital relationship between church and 

minister, while protecting the vast majority of employees from the type of discrimination that is 

antithetical to American values. Religious institutions that violate time-honored statutory 

protections against employment discrimination may (like all other employers) still be held 

accountable in court by most employees. 

Third, religious institutions may assert the ministerial exception only as a defense in employment 

discrimination cases. The exception does not grant churches blanket immunity from all other 

legal claims brought against them. Indeed, the Supreme Court declined to recognize wholesale 

 

358 Id. at 710. 

359 Id. at 707. 

360 Id. 

361 Id. at 708. 

362 Id. at 710. 
264 Peaceful Coexistence Report 

immunity for other claims, such as breach of contract or tortious conduct, that might be brought 

by ministers against their religious employers.363

Fourth, the ministerial exception does not shield houses of worship from enforcement of all other 

laws. For example, as the church in Hosanna-Tabor itself conceded, “the ministerial exception 

would not in any way bar criminal prosecutions for interfering with law enforcement 

investigations or other proceedings” or “government enforcement of general laws restricting 

eligibility for employment,” such as child-labor laws.364

Ultimately, while the Hosanna-Tabor decision embraces an essential component of religious 

liberty - the right of churches to select their religious leaders - it signals no dramatic shift in the 

legal landscape. In confirming the existence of a constitutionally grounded ministerial 

exception, the Supreme Court broke scant new ground, following the unanimity of opinion in the 

federal courts of appeals, all of which had previously recognized some version of the ministerial 

exception.365 As to the subsidiary question about which the lower courts had, to some extent, 

disagreed - the question of who qualifies as a “minister” to trigger the exception - the Supreme 

Court provided little concrete guidance.366 The lower courts are still in the early stages of 

applying Hosanna-Tabor,

367 and the decision’s legacy remains uncertain. In the end, it should 

stand as a vital, albeit limited, guarantee of church autonomy that leaves intact the government’s 

constitutional ability to protect the health, safety, and welfare of its citizens. 

Christian Legal Society v. Martinez

 

363 Id. See also, e.g., Second Episcopal Dist. African Methodist Episcopal v. Prioleau, 49 A.3d 812, 816-18 (D.C. 

2012) (declining to dismiss breach of contract claim by pastor against church, where claim could be decided using

“neutral principles of law”).

364 Hosanna-Tabor, 132 S.Ct. at 710. 

365 Id. at 705 (noting that “the Courts of Appeals have uniformly recognized the existence of a ‘ministerial exception,’ 

grounded in the First Amendment, that precludes application of [employment discrimination] legislation to claims 

concerning the employment relationship between a religious institution and its ministers.”). 

366 Id. at 707 (expressly declining to “adopt a rigid formula,” instead reviewing a variety of factors in the case and

concluding that “the exception covers Perich, given all the circumstances of her employment”). 

367 In the year since the Supreme Court’s decision, litigants have invoked Hosanna-Tabor in a variety of 

circumstances, with mixed results: Claims brought by employee plaintiffs with duties and responsibilities similar to

Perich’s typically have been dismissed, see, e.g., Temple Emanuel of Newton v. Mass. Comm’n, 975 N.E.2d 433,

443-44 (Mass. 2012) (dismissing age discrimination claims by teacher of religious subjects at religious school);

Herzog v. St. Peter Lutheran Church, 884 F. Supp. 2d 668, 673-64 (N.D. Ill. 2012) (dismissing suit by “called” 

teacher at Lutheran school); Kirby v. Lexington Theological Seminary, No. 2010-CA-001798-MR, -- S.W.3d ---, 2012 

WL 3046352, at *5 -*6 (Ky. App. July 27, 2012) (dismissing discrimination claims by “called” teacher who served 

as instructor of Church and Society), while actions brought on behalf of clearly non-ministerial employees have been 

allowed to proceed, see, e.g., Dias v. Archdiocese of Cincinnati, No. 1:110CV-00251, 2013 WL 360355, at *4 (S.D. 

Ohio Jan. 30 , 2013) (allowing computer technology coordinator to sue archdiocese school for pregnancy 

discrimination). 
Panelists’ Written Statements 265 

In Christian Legal Society v. Martinez (CLS), the Supreme Court considered whether a public 

university - the University of California’s Hastings College of the Law - could be compelled to 

provide official recognition and benefits to student clubs that violate the school’s 

nondiscrimination policy. 

Unlike in Hosanna-Tabor, the Court in CLS addressed not whether religious groups have a 

constitutional right to discriminate in the selection of leaders and members, but rather whether 

such groups have an affirmative right to do so with government money and support. The Court 

rejected the claimed right, holding that a public university has the constitutional authority to lend 

its name and funds only to those groups or activities that are open to all students.368

Hastings, like a number of other public and private schools, grants official recognition only to 

student groups that agree not to discriminate in membership, a requirement known as an “allcomers” policy. Officially recognized groups enjoy a variety of benefits unavailable to other 

private organizations, including eligibility for school funding, the use of the law school’s name, 

preferential access to classroom space for meetings, and access to the school’s student activities 

fair. The Hastings nondiscrimination policy was challenged by the Christian Legal Society, a 

student club that excludes from membership and leadership positions any students who do not 

share CLS’s religious beliefs or who engage in “unrepentant homosexual conduct.”369 CLS 

alleged that the policy infringed its First Amendment rights of speech, association, and religion. 

CLS surely had every right to expect the university to apply its nondiscrimination policy in an 

evenhanded way; indeed, had there been evidence that Hastings officials had held CLS to a higher 

standard than other student groups by allowing other groups to violate the all-comers policy with 

impunity, the Supreme Court likely would have found in CLS’s favor. But CLS could not make 

such a showing, and CLS was left seeking “not parity with other organizations, but a preferential 

exemption from Hastings’ policy.”370 That is, CLS claimed a right to the benefits of official 

recognition, without having to comply with the nondiscrimination rules applicable to every other 

recognized student group. The First Amendment, the Court reasoned, conferred no such right on 

CLS. 

To be sure, as the Supreme Court recognized, CLS - like any group of students at a public 

university - does enjoy significant First Amendment rights, but under Hastings’ policy CLS had 

ample opportunity to meet on campus, gain access to campus facilities, and use bulletin boards 

and other means of communicating with students.371 And, in fact, CLS had continued to exist as 

an unofficial student organization at Hastings, expressing its views, recruiting members, holding 

 

368 CLS, 130 S.Ct. at 2978. 

369 Id. at 2980. 

370 Id. at 2978. 

371 Id. at 2991. 
266 Peaceful Coexistence Report 

regular meetings and other events on campus, and excluding whomever it wished. But CLS was 

asking for more, and the Court found no basis for mandating a special exemption from the 

Hastings policy. “The First Amendment shields CLS against state prohibition of the 

organization’s expressive activity, however exclusionary that activity may be,” the Court 

concluded, “[b]ut CLS enjoys no constitutional right to state subvention of its selectivity.”372

Because the Hastings policy conditioned the denial of benefits on certain conduct (the act of 

discriminating against certain members of the law school community) and not merely on 

expression (the views of the student groups) the Court held the policy was viewpoint-neutral.373 

This was true, the Supreme Court reasoned, even if the policy ultimately affected some groups 

more than others. As the Court explained, “[e]ven if a regulation has a differential impact on 

groups wishing to enforce exclusionary membership policies, ‘[w]here the [State] does not target 

conduct on the basis of its expressive content, acts are not shielded from regulation merely 

because they express a discriminatory idea or philosophy.’”374

The Court also found the nondiscrimination rule to be a reasonable one, declining CLS’s 

invitation to second-guess the university’s policy decisions. Among other things, the policy 

promotes the basic principle of equality and fairness, in the crucial context of a public 

university.375 Because of the central role that access to education plays in personal and 

professional development, eliminating discrimination in education has long been recognized as a 

government interest of the utmost importance.376 As the Supreme Court had noted in an earlier 

case, “ensuring that public institutions are open and available to all segments of American society 

. . . represents a paramount government objective,” and “nowhere is the importance of such 

openness more acute than in the context of higher education.”377

Again, it is important to remember that the Hastings policy furthered these goals not by silencing 

exclusionary groups like CLS, not by driving them off campus, but rather by choosing not to 

subsidize them. When a public university decides that the advantages associated with official 

recognition should be granted only to those organizations that do not discriminate, it furthers a 

compelling interest in preventing government resources from being used to perpetuate inequality. 

 

372 Id. at 2978. 

373 Id. at 2994. 

374 Id. (quoting R.A.V. v. St. Paul, 505 U.S. 377, 390 (1992)). 

375 Id. at 2989 (“[T]he open-access policy ‘ensures that the leadership, educational, and social opportunities afforded 

by [recognized student organizations] are available to all students.”’) (quoting Brief for Hastings at 32, and citing Brief 

for American Civil Liberties Union at 11). 

376 See, e.g., Norwood v. Harrison, 413 U.S. 455, 469 (1973) (holding that Mississippi could not give textbooks to

students attending racially segregated private schools because “discriminatory treatment exerts a pervasive influence 

on the entire educational process”); see also, e.g., Bob Jones Univ. v. U.S., 461 U.S. 574, 604 (1983) (“[T]he 

Government has a fundamental, overriding interest in eradicating racial discrimination in education.”). 

377 Grutter v. Bollinger, 539 U.S. 306, 331-32 (2003) (internal citations and quotation marks omitted). 
Panelists’ Written Statements 267 

It also secures equal rights and opportunities for its students. As the Court recognized, polices 

like the one challenged in CLS “ensure [] that no Hastings student is forced to fund a group that 

would reject her as a member.”378

While the Hastings policy requires recognized groups to admit “all comers,” some other colleges 

and universities have more traditional nondiscrimination policies that prohibit recognized groups 

from denying membership based on a list of protected characteristics such as race, sex, religion, 

sexual orientation, gender identity, disability, or veteran status. Although the CLS case 

expressly addressed only the Hastings all-comers policy, the decision suggests that the traditional 

nondiscrimination policies should readily pass constitutional scrutiny, as well. As Justice 

Stevens noted in his concurrence, such a policy, like the all-comers policy, is “plainly legitimate”: 

It is “content and viewpoint neutral,” restricting official recognition on the basis of student 

groups’ conduct, not “on the basis of their convictions.”379

In fact, in Alpha Delta Chi-Delta Chapter v. Reed,

380 the only post-CLS decision to address the 

issue, the U.S. Court of Appeals for the Ninth Circuit upheld San Diego State University’s 

traditional nondiscrimination policy.381 A Christian fraternity and sorority challenged that 

policy, which conditions funding and various other benefits on student groups’ agreement not to 

discriminate on the basis of race, religion, national origin, ethnicity, color, age, gender, marital 

status, citizenship, sexual orientation, or disability. Closely following the Supreme Court’s 

reasoning in CLS and finding no material difference between an all-comers policy and a more 

traditional one, the court of appeals in Alpha Delta Chi rejected the plaintiffs’ First Amendment 

claims. That the challenged policy incidentally burdens some groups more than others, the 

court held, is of no moment: “San Diego State’s nondiscrimination policy does not ‘target 

speech or discriminate on the basis of its content,’ but instead serves to remove access barriers 

imposed against groups that have historically been excluded.”382 And, as in CLS, San Diego 

State’s policy did not require student organizations to accept unwanted members and leaders, but 

merely conditioned school benefits on the agreement not to discriminate. Echoing the Supreme 

Court, the court of appeals concluded, “Plaintiffs are free to express any message they wish, and 

may include or exclude members on whatever basis they like; they simply cannot oblige the 

university to subsidize them as they do so.”383

 

378 CLS, 130 S.Ct. at 2989. 

379 Id. at 2996 (Stevens, J., concurring). 

380 648 F.3d 790 (9th Cir. 2011). 

381 Although the court of appeals rejected a facial challenge to the policy, it remanded the case to the district court to 

determine whether, in practice, the university had selectively enforced the policy against the plaintiffs. Id. at 803-04. 

382 Id. at 801. 

383 Id. at 803. 
268 Peaceful Coexistence Report 

In the wake of CLS, several state legislatures have considered,384 and in some cases passed,385

laws intended to undo the Supreme Court’s decision. Such legislation typically strips 

universities of the ability to adopt nondiscrimination policies of the sort upheld by the Supreme 

Court. In so doing, the bills undermine the many important interests recognized by the Court, 

forcing colleges and universities to underwrite discriminatory acts and limiting the educational 

opportunities available to students. In light of the pernicious history of discrimination in 

education and related opportunities in this country, universities should continue to have the 

right386 to refuse to lend their sponsorship and resources, including funding, to groups that 

exclude other members of the university community. 

Conclusion 

Viewed in tandem, the Supreme Court’s decisions in Hosanna-Tabor and CLS help delineate the 

nature and scope of some of our most cherished rights. In Hosanna-Tabor, the Court recognized 

a vital, if cabined, sphere of church autonomy in the selection of ministers and the setting of 

doctrine. The fundamental right of religious liberty demands that America’s religious 

communities enjoy considerable independence in these areas. In CLS, on the other hand, the 

Supreme Court reiterated that religious freedom is not unlimited and does not, for example, 

confer a right to have the government support and subsidize a group’s exclusionary conduct. A 

contrary result would undermine our nation’s longstanding commitment to equality and civil 

rights. 

Any efforts to expand Hosanna-Tabor beyond its confines, or to circumvent CLS through 

legislation, should be met with deep skepticism. Without a doubt, religious liberty is a 

fundamental and defining feature of our national character: In the United States, we have the 

right to a government that neither promotes nor disparages religion generally, nor any faith in 

particular; we have the absolute right to believe what we want about God and the universe, right 

and wrong; and we have the right to act on those beliefs - but not when those actions harm the 

rights and well-being of others. 

 

384 See, e.g., S.B. 802, 108th Gen. Assemb., Reg. Sess. (Tenn. 2013); H.B. 534, 108th Gen. Assemb., Reg. Sess. 

(Tenn. 2013); H.B. 360, 2013 Leg., 83d Reg. Sess. (Tex. 2013). 

385 See Ohio Rev. Code Ann. § 3345.023 (2011); Va. Code Ann. § 23-9.2:12 (2013). 

386 The Supreme Court has recognized the fundamental importance of academic freedom to the survival of a free

society. “This means the exclusion of governmental intervention in the intellectual life of a university.” Sweezy v.

New Hampshire, 354 U.S. 234, 262 (1957) (Frankfurter, J., concurring). “It is the business of a university to 

provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in 

which there prevail ‘the four essential freedoms' of a university-to determine for itself on academic grounds who 

may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Id. at 263 (internal

quotation marks and citations omitted). And as the Court recently acknowledged, “[a] college’s commission—and

its concomitant license to choose among pedagogical approaches—is not confined to the classroom, for

extracurricular programs are, today, essential parts of the educational process.” CLS, 130 S.Ct. at 2988-89.
Panelists’ Written Statements 269 

Religious freedom, while essential, does not confer an unfettered right to ignore 

antidiscrimination laws. In the past, religious beliefs have been invoked to support differential 

treatment on the basis of race387 and gender,388 for example. While those beliefs may no longer 

be common, there is no doubt that they were once as sincerely held as those asserted in many of 

the conflicts we see today. In the earlier struggles, the courts understood that respect for church 

autonomy to set doctrine and select faith leaders is fully compatible with rigorous enforcement 

of civil rights protections. The Supreme Court’s recent decisions in these areas again recognize 

that due regard for ecclesiastical independence does not require wholesale religious exemptions 

from antidiscrimination laws and principles. 

Edward Whelan 

Thank you for inviting me to testify before this Commission on the important topic of the 

conflict between non-discrimination principles and civil liberties. 

I offer my views in my capacity as president of the Ethics and Public Policy Center and as 

director of EPPC’s program on The Constitution, the Courts, and the Culture. I am testifying on 

my own behalf, and my statements are not to be imputed to EPPC as an institution. 

The title of this hearing asks whether non-discrimination principles and civil liberties can 

peacefully co-exist. I respectfully submit that, by its very nature, the imposition of a nondiscrimination principle on nongovernmental actors intrudes, at least to some degree, on civil 

liberties. At the simplest level, the embodiment in law of the principle that, in performing lawful 

Action A—say, providing a service or hiring an employee—a person should not discriminate on 

the basis of Category X means that the person no longer has the full liberty to perform Action A 

as she pleases. 

 

387 See, e.g., Bob Jones Univ. v. United States, 468 F. Supp. 890, 897 (D.S.C. 1978) (“The religious belief involved is

plaintiff’s conviction that the Bible forbids interracial dating and marriage and that God has cursed any acts in

furtherance thereof.”), rev’d in part, 461 U.S. 574 (1983); Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 944 

(D.S.C. 1966) (noting restaurant owner’s argument that Civil Rights Act “violates his freedom of religion under the 

First Amendment ‘since his religious beliefs compel him to oppose any integration of the races whatever’”), aff’d in 

part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 

400 (1968); Loving v. Virginia, 388 U.S. 1, 3 (1967) (“‘Almighty God created the races white, black, yellow, malay 

and red, and he placed them on separate continents. And but for the interference with his arrangement there would be 

no cause for [interracial] marriages. The fact that he separated the races shows that he did not intend for the races to 

mix.’”) (quoting trial court opinion). 

388 See, e.g., Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1391 (4th Cir. 1990) (holding that a religious school 

that gave extra payments to married male teachers, but not married women, based on the religious belief that men 

should be “heads of households” could be held liable under equal pay laws); E.E.O.C. v. Fremont Christian Sch., 781 

F.2d 1362, 1364 (9th Cir. 1986) (holding that a religious school that gave male employees family health benefits but 

denied such benefits to similarly situated women because of the sincerely held belief that men are the “heads of 

households” violated Title VII).
270 Peaceful Coexistence Report 

As I trust is obvious, this elementary observation says nothing about whether the imposition of a 

particular non-discrimination restriction on how a person performs a particular type of action is 

justified. Nor does it speak to whether the resulting intrusion on liberty is trivial or significant. It 

merely points out the inevitable conflict. 

As a guide to thinking through whether and when non-discrimination principles ought to apply, I 

offer these considerations: 

1. Traditional liberalism distinguishes between the rules that the government must follow and 

the rules that apply to the conduct of ordinary citizens. It is one thing to impose a regimen of 

“fair” conduct on the government and on governmental actors, which do not have any 

countervailing civil liberties at stake. It is a very different matter to impose the same regimen on 

ordinary citizens, whose civil liberties include religious liberty, free speech, freedom of 

association, and a general autonomy to act, within broad bounds, as they see fit, without 

interference from the government. 

The flourishing of civil society depends on recognizing and respecting this distinction between 

the norms applicable to the government and the norms applicable to the citizenry. By contrast, 

the failure to recognize and respect this distinction leads to what one critic has fairly labeled 

“totalitarian liberalism”—a liberalism that seeks to occupy the totality of human affairs and that 

“tends to imply that institutions such as the family, the Church, and other agencies exist only 

with the permission of the state, and, to exist lawfully, must abide by the dictates or norms of the 

state.” Philip Tartaglia, “At the Door of the Temple: Religious Freedom and the New 

Orthodoxy,” Public Discourse (June 27, 2012). 

2. “That’s discrimination!” seems to have become for many Americans an observation that 

stifles more careful thinking about what line-drawing is legitimate and about the proper limits on 

the application of non-discrimination norms. But, as law professor Richard W. Garnett points 

out, “discrimination” is “just another word for decision-making, for choosing and acting in 

accord with or with reference to particular criteria.” Richard W. Garnett, “Confusion About 

Discrimination,” Public Discourse (Apr. 5, 2012). Thus, we speak approvingly of someone with 

“discriminating tastes”—someone, that is, who values the true, the good, and the beautiful over 

the false, the bad, and the ugly. 

A threshold question (a necessary but not sufficient condition) in deciding whether to adopt a 

norm of nondiscrimination is whether and when a particular form of discrimination is wrongful 

or invidious. 

3. The paradigmatic case of a wrongful basis of discrimination is race. We abhor discrimination 

on the basis of race because we recognize that a person’s race does not detract from (or add to) 

his stature as a being made in the image and likeness of God or (in more secular terms) his equal 

dignity as a human being. We especially abhor racial discrimination against African-Americans 

because we recognize, and grieve over, our nation’s ugly legacy of slavery and of state-enforced 
Panelists’ Written Statements 271 

racial segregation. 

It is worth emphasizing, however, that our legal system’s condemnation of discrimination on the 

basis of race is far from absolute. In particular, under the rubric of “affirmative action,” our legal 

system currently allows and encourages racial discrimination, both by the government and by 

private actors, against non-Hispanic whites and against Asian Americans in educational 

admissions and against non-Hispanic whites in employment. To a much lesser extent, there are 

some job assignments—e.g., an FBI agent infiltrating a group of racist terrorists—for which race 

may well be regarded as a permissible criterion. 

My point at this hearing is neither to defend nor dispute these departures from the norm of nondiscrimination on the basis of race, but merely to highlight that our legal system’s ban on racial 

discrimination has some significant exceptions. 

4. Other bases of discrimination commonly prohibited under federal law are qualitatively 

different from race. 

Take sex, for example. For various reasons, we regard sex-segregated restrooms, sex-segregated 

athletic competitions, and single-sex schools very differently from race-segregated restrooms, 

race-segregated athletic competitions, and single-race schools. Most of us don’t disapprove of a 

woman who wants to be part of a women-only book club or of a boy who wants to join the Boy 

Scouts. 

If the increasingly common disparagement of traditional religious believers is any indication, it 

would also seem that, for many Americans, discrimination on the basis of religion does not carry 

the same moral stigma as discrimination on the basis of race. The fact that a person is free to 

choose and change her religious beliefs in a way that she is not free to change her race may well 

account for some of the difference. But a growing hostility against traditional religion would also 

seem an important factor. 

5. Insofar as the social attitudes that sustained invidious discrimination have evolved, 

prohibitions on discrimination may be a very costly way of achieving very little. Employers, for 

example, will generally harm themselves when they engage in irrational discrimination. Thus, as 

one leading scholar puts it, “Competitive markets with free entry offer better and more certain 

protection against invidious discrimination than any anti-discrimination law.” Richard Epstein, 

Forbidden Grounds: The Case Against Employment Discrimination Laws 9 (Harvard University 

Press 1992). Similarly, thanks in part to advances in technology, customers for goods and 

services enjoy an increasingly broad range of available providers and incur much lower search 

costs in choosing among providers. 

Further, as many scholars have argued, prohibitions on discrimination may well have unintended 

consequences that undermine their objectives. For example: 
272 Peaceful Coexistence Report 

By making it harder to fire certain workers, employment discrimination law tends to make these 

workers less attractive prospects at the hiring stage. An employer would prefer to hire someone 

who can be easily fired (should that prove necessary) than an otherwise identical applicant 

whose firing would be subject to legal scrutiny. Thus, protection against discriminatory firing 

acts as a kind of tax on hiring those to whom it is extended. 

Ian Ayres & Peter Siegelman, “The Q-Word as Red Herring: Why Disparate Impact Liability 

Does Not Induce Hiring Quotas,” 74 Tex. L. Rev. 1487, 1487-1488 (1996). 

I do not contend that it is a simple or uncontroversial matter to translate the general 

considerations that I have outlined into a set of non-discrimination norms, and I will not attempt 

to do so here. Instead, I would like to explore more concretely the clash between nondiscrimination principles and civil liberties. Let’s look at a real-life case: 

Elaine Huguenin and her husband Jonathan own Elane Photography, a business providing 

photography services, in Albuquerque, New Mexico. Elane Photography has a policy against 

photographing events that communicate messages inconsistent with the Huguenins’ Christian 

beliefs. In 2006, Ms. Huguenin received an e-mail from a potential customer, Vanessa Willock, 

inquiring about photography for Ms. Willock’s upcoming same-sex commitment ceremony. Ms. 

Huguenin informed Ms. Willock that Elane Photography would not provide the service. 

Ms. Willock then filed a discrimination claim with the New Mexico Human Rights Commission. 

That agency found that Elane Photography had violated state law by discriminating on the basis 

of sexual orientation, and it ordered Elane Photography to pay Ms. Willock more than $6,600 in 

attorney fees and costs. More than six years later, Elane Photography’s appeal of that order is 

now pending before the New Mexico supreme court. 

Let’s consider at the same time a hypothetical variant: 

Assume now that the owner of the photography business is a gay man, John Doe, who will 

photograph same-sex commitment ceremonies but who refuses to photograph male-female 

weddings. Mr. Doe therefore informs a potential customer, Jane Poe, that he won’t photograph 

her wedding. Ms. Poe files a discrimination claim with the New Mexico Human Rights 

Commission, which finds that Mr. Doe violated state law by discriminating on the basis of 

sexual orientation and which orders him to pay Ms. Poe more than $6,600 in attorney fees and 

costs. 

Do these results make any sense? Consider: 

1. As First Amendment expert Eugene Volokh has explained, event photography “involves a 

substantial degree of artistic judgment and expression on the photographer’s part,” and the 

photographer’s creative expression is protected by the First Amendment. Further, “the right to be 

free from compelled speech includes the right not to create First-Amendment-protected 
Panelists’ Written Statements 273 

expression ... that you disagree with.” Eugene Volokh, “Wedding Photographer May Be 

Required (on Pain of Legal Liability) to Photograph Same-Sex Commitment Ceremonies,” 

Volokh Conspiracy (June 4, 2012). In other words, both Elane Photography (and the Huguenins) 

and the hypothetical John Doe have a strong free-speech claim under the First Amendment to 

discriminate, on the basis of sexual orientation or on other bases, against potential customers for 

whom they would prefer not to exercise their expressive capacities. 

2. Elane Photography’s policy against photographing same-sex commitment ceremonies reflects 

the religious beliefs of its owners, the Huguenins. Whether or not the Huguenins have an 

enforceable religious-liberty right (under the Free Exercise Clause of the First Amendment, 

under New Mexico’s Religious Freedom Restoration Act, or under some other provision of law), 

there can be no question that imposing on them an obligation to photograph same-sex 

ceremonies intrudes on their religious beliefs. 

The same, of course, might well be true for Mr. Doe—if, that is, his own practice is driven by his 

religious beliefs. 

3. No sensible person seeking artistic photographic services for an event would want a 

photographer who is hostile to the event. The potential customers, Ms. Willock and Ms. Poe, 

would likely have been worse off if the photographers had concealed their objections and 

grudgingly provided their services. Because there are alternative providers of photography 

services, the customers were instead able to find willing and able substitutes. 

4. To be sure, in addition to the trivial inconvenience of an e-mail exchange, Ms. Willock and 

Ms. Poe each incurred what might be called the dignitary injury of being told that the 

photographer had a policy against photographing her event. But in our pluralistic society, it 

should be no surprise that nearly everyone will be disapproved of by some of the people some of 

the time. As a general rule, it is difficult to see how the desire to avoid encountering disapproval 

would justify imposition of a regime in which customers dragoon unwilling providers rather than 

a regime in which customers obtain the services they want from willing providers. It is also 

difficult to see why it is better to reward thin-skinned plaintiffs for running to court (or, even 

worse, to a “human rights commission”) than to encourage the healthy growth of thicker skin. 

In his famous Memorial and Remonstrance of 1785, James Madison celebrated that the 

“American Theatre” had discovered the “true remedy” for the “disease” of “Religious discord” 

that had so afflicted the “old world” of Europe: “equal and compleat” religious liberty. In a 

warning that resonates across the centuries, Madison declaimed: “If with the salutary effects of 

this system [of “equal and compleat” liberty] under our own eyes, we begin to contract the 

bounds of Religious freedom, we know no name that will too severely reproach our folly.” 

The clash between non-discrimination principles and religious liberty in particular has been 

exacerbated by the Obama administration’s hostility to a robust conception of religious liberty 
274 Peaceful Coexistence Report 

and by its determination to subordinate religious liberty to its ideology of sexual absolutism. The 

so-called HHS contraception mandate provides a prime example. 

In implementing President Obama’s signature health-care legislation, the Department of Health 

and Human Services announced in January 2012 that it will require many employer-provided 

health-insurance plans to include in the preventive services that they cover all FDA-approved 

forms of contraception, including those contraceptives that sometimes operate as abortifacients, 

and sterilization services. For those employers who have religious objections to providing some 

or all of the mandated coverage, this HHS contraception mandate clearly violates their rights 

under the 1993 federal Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause 

of the First Amendment. Even worse, it displays an illiberal contempt for the religious views of 

those whom it seeks to coerce. 

The case against the HHS mandate under RFRA is quite simple. Under RFRA, the federal 

government “may substantially burden a person’s exercise of religion only if it demonstrates that 

application of the burden to the person (1) is in furtherance of a compelling governmental 

interest; and (2) is the least restrictive means of furthering that compelling governmental 

interest.” Let’s consider the italicized elements in logical order.389

It is clear that an employer is engaged in an exercise of religion when she, for religious reasons, 

refuses to provide health insurance that covers contraceptives or abortifacients. RFRA itself 

defines exercise of religion broadly to mean “any exercise of religion, whether or not compelled 

by, or central to, a system of religious belief.” Further, RFRA was adopted against a backdrop of 

prominent Supreme Court cases in which the exercise of religion consisted of abstentions like 

not working on the Sabbath (Sherbert v. Verner (1963)), not sending one’s children to high 

school (Wisconsin v. Yoder (1972)), and not taking part in the production of armaments (Thomas 

Review Board (1981)). 

It is equally clear that the HHS mandate substantially burdens objecting employers’ exercise of 

religion. An employer who violates the HHS mandate incurs an annual penalty of roughly $2000 

per employee—vastly more than the five-dollar fine that substantially burdened the religious 

rights of the fathers in Yoder who refused to send their children to high school. Under the 

Supreme Court case law that RFRA incorporates, that penalty for noncompliance with the HHS 

 

389 For a fuller version of the case I outline here, together with citations to supporting authorities, see my Notre Dame

Law Review essay “The HHS Contraception Mandate vs. the Religious Freedom Restoration Act,” 87 Notre Dame L. 

Rev. 2179 (2012). 
Panelists’ Written Statements 275 

mandate puts the same kind of burden on religious rights as a direct fine for holding religious 

beliefs against contraceptives or abortifacients.390

The question whether the government can demonstrate that application of the burden to the 

objecting employer is in furtherance of a compelling governmental interest involves a more 

complicated analysis, but the answer in the end is clearly no. For starters, by HHS’s own 

account, there is already widespread access to contraceptives, via pre-existing employer-based 

insurance plans, community health centers, and public clinics (as well as the countless 

pharmacies and doctors who dispense contraceptives). No one can seriously maintain that there 

is a general problem of lack of access to contraceptives. Just as the Supreme Court has recently 

declared that “the government does not have a compelling interest in each marginal percentage 

point by which its goals are advanced,”391 it surely does not have a compelling interest in each 

marginal employer by which its goal of increased provision of contraceptives is advanced. 

Indeed, the Obama administration effectively concedes this point by exempting so many 

employers from the HHS mandate for purely secular reasons. For example, employers offering 

so-called “grandfathered” plans, estimated to cover nearly 100 million Americans in 2013, are 

not subject to the HHS mandate. Nor are the many businesses which employ fewer than 50 fulltime employees and which decline to provide them group health insurance. It is absurd for 

anyone to contend that the Obama administration has a compelling interest in imposing the 

mandate on objecting religious employers when it obviously perceives no such interest in 

imposing it on all these other employers. 

The HHS mandate also clearly flunks the least restrictive means test. (In order to satisfy RFRA, 

it would have to meet both the compelling governmental interest test and the least restrictive 

means test.) The question under this test is whether imposing the HHS mandate on an employer 

who has religious objections to providing insurance coverage for contraceptives or abortifacients 

furthers the government’s interest in increasing access to contraceptives via the means that is 

least restrictive of the religious liberty of the objecting employer. 

The question virtually answers itself. There are lots of alternative means by which the 

government could increase access to contraceptives without conscripting objecting employers: 

for example, direct government provision of contraceptives, government payment to third-party 

 

390 There should be no dispute that making an exercise of religion illegal and subjecting it to massive fines imposes a

substantial burden on that exercise of religion. But in muddled and convoluted reasoning, the minority of courts that,

in addressing RFRA challenges to the HHS mandate on the merits, have rejected those challenges have purported to

do so on the ground that the mandate does not impose a substantial burden. In reality, what those courts have done, in 

violation of governing Supreme Court precedent, is to impose their own views of the range of permissible religious 

beliefs about what constitutes improper complicity in immoral conduct and to disqualify the challenger’s exercise of 

religion from any protection under RFRA for being beyond that range. 

391 Brown v. Entertainment Merchants Ass’n, 564 U.S. 1, 16 n. 9 (2011). The Court’s statement might be better 

understood to mean that the government cannot be presumed to have a compelling interest in each marginal

percentage point by which its goals are advanced. The difference is immaterial here. 
276 Peaceful Coexistence Report 

providers, mandates on contraceptive providers, and tax credits or deductions or other financial 

support for contraceptive users. Instead of pursuing any of these alternatives, the Obama 

administration has adopted the single means that is most restrictive of the religious liberty of 

objecting employers. 

The HHS mandate also violates the Free Exercise Clause. The HHS mandate is not neutral and 

generally applicable, and therefore does not qualify for the low bar of Employment Division v. 

Smith, because (as I discuss above) employers are exempt from it for purely secular reasons.392 

The HHS mandate is therefore subject under the Free Exercise Clause to the same standard that 

RFRA imposes, and it fails for the same reasons. 

Even more troubling than the Obama administration’s violations of RFRA and the Free Exercise 

Clause is the fact that its conduct was willful and deliberate. Before it finalized the HHS 

mandate, the administration received thousands and thousands of comments explaining the 

impact that the mandate would have on employers who had religious objections to providing 

insurance coverage for contraceptives or abortifacients. Without conducting any review of the 

legality of the mandate under RFRA and the First Amendment, the administration bulldozed 

ahead. At the very least, it did so despite the mandate’s impact on objectors. But there is ample 

reason to believe that the Obama administration found it desirable to trample the consciences of 

many Americans, as the HHS mandate is part of a broader pattern of the Obama administration’s 

hostility to religious liberty and of its determination to subordinate religious liberty to its 

ideology of sexual absolutism. For example: 

 In the international arena, the administration has reduced religious liberty to a shriveled 

concept of individual religious worship and has instead aggressively promoted its LGBT 

initiative at the expense of religious liberty. See, e.g., Thomas F. Farr, “Religious Freedom 

Under the Gun,” Weekly Standard, July 16, 2012. 

 In Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), the Department of 

Justice contested the very existence of a “ministerial exception” to federal anti- discrimination 

laws, despite the fact that that exception had been uniformly recognized by the federal courts of 

appeals. According to the Obama Department of Justice, religious organizations, in selecting 

their faith leaders, are limited to the same freedom-of- association right that labor unions and 

social clubs have in choosing their leaders. At oral argument, even Justice Kagan called DOJ’s 

position “amazing,” and in its unanimous ruling the Court emphatically rejected DOJ’s 

“remarkable view that the Religion Clauses have nothing to say about a religious organization’s 

freedom to select its own ministers.” 

 

392 See, e.g., Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012) (a rule is not neutral and generally applicable for

purposes of Employment Division v. Smith if it is “riddled with exemptions” or “permit[s] secular exemptions but not 

religious ones”). 
Panelists’ Written Statements 277 

 Despite the fact that its own independent review board ranked the U.S. Conference of 

Catholic Bishops far above other applicants for a grant to assist victims of human trafficking, 

HHS political appointees denied the grant because USCCB won’t refer trafficking victims for 

contraceptives and abortion. See Jerry Markon, “Health, abortion issues split Obama 

administration and Catholic groups,” Washington Post, Oct. 31, 2011. 

 Against the backdrop of an escalating clash between gay rights and religious liberty, the 

Obama administration irresponsibly abandoned its duty to defend the federal Defense of 

Marriage Act. When President Obama finally cast aside his professed opposition to redefining 

marriage, he opened the way for an intensification of the vitriolic attacks on traditional religious 

believers (and others) who continue to hold the position that he had so recently claimed to 

embrace. 

The administration’s hostility to religious liberty is part of its broader “progressive” vision. In 

that vision, the moral propositions associated with traditional religious beliefs are dismissed as 

irrational and bigoted, and religious institutions and believers are deemed to have value, and to 

be tolerated, only insofar as they serve the interests of the state and conform themselves to its 

norms. In the progressive dystopia, in the name of diversity everyone must be the same. 

By dragooning employers to be the vehicle for increasing access to contraceptives and 

abortifacients, the Obama administration is putting many Americans to a grave test of 

conscience—and it is doing so gratuitously, for an end that could be easily accomplished through 

other means. The American tradition of broad religious liberty has operated to minimize the 

instances in which Americans have understood their religious identities and duties to be in 

conflict with their identities and duties as citizens. But in defiance of Madison’s warning, 

President Obama has chosen to “contract the bounds of Religious freedom” of those who object 

to providing coverage for contraceptives or abortifacients. 

As Madison would recognize, the HHS mandate is a folly that deserves the severe reproach of all 

Americans. 

The spread of same-sex marriage also threatens to sharply exacerbate the conflict between 

nondiscrimination policies and religious liberty.393

A scholarly consensus has emerged that the redefinition of marriage to include same-sex couples 

will generate widespread clashes between existing laws that bar discrimination on the basis of 

sex/gender, marital status, or sexual orientation (most of which were never designed to reach 

claims by parties to same-sex marriages) and religious liberty. See, e.g., Same-Sex Marriage and

 

393 With the permission of The Becket Fund for Religious Liberty, this part of my testimony draws heavily (including

in extensive verbatim passages) from the amicus brief that it submitted in the pending marriage cases in the Supreme

Court. See Brief Amicus Curiae of The Becket Fund for Religious Liberty, submitted in Hollingsworth v. Perry, No.

12-144, and United States v. Windsor, No. 12-307. 
278 Peaceful Coexistence Report 

Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello Jr. & Robin 

Fretwell Wilson eds. 2008). 

An episode just two weeks ago illustrates the potential severity of that clash: Responding to 

complaints that a civil-unions bill failed to provide any meaningful protection for religious 

objectors, Colorado state senator Pat Steadman displayed his contempt for religious liberty by 

declaring: 

“So, what to say to those who say religion requires them to discriminate. I’ll tell you what I’d 

say. Get thee to a nunnery and live there then. Go live a monastic life away from modern 

society, away from people you can’t see as equal to yourself, away from the stream of commerce 

where you may have to serve them.” 

Vincent Carroll, “Civil unions or a nunnery? Please,” Denver Post, Feb. 13, 2013. 

Unless robust protections for religious liberty are adopted and maintained, religious people and 

institutions will face a wave of private civil litigation under anti-discrimination laws. Consider, 

for example, the litigation that can reasonably be threatened under public-accommodation laws, 

housing-discrimination laws, and employment-discrimination laws. 

Public-accommodation laws. Religious institutions often provide a broad array of programs and 

facilities to their members and to the general public, such as hospitals, schools, adoption 

services, and marital counseling. Religious institutions have historically enjoyed wide latitude in 

choosing what religiously motivated services and facilities they will provide, and to whom they 

will provide them. This wide latitude has both protected liberty of conscience and maximized the 

number of organizations that can provide for the needs of society. But giving legal recognition to 

same-sex marriage without robust conscience exemptions will restrict that freedom in at least 

two ways. 

First, most states include gender, marital status, or sexual orientation as protected categories 

under public accommodation laws.394 Second, religious institutions and their related ministries 

are facing increased risk of being declared places of public accommodation, and thus being 

subject to legal regimes designed to regulate secular businesses. For example, some laws 

require church halls be treated as public accommodations if they are rented to non-members. 

This risk is greatest for those religious organizations that serve people with different beliefs. 

Unfortunately, the more a religious organization seeks to minister to the general public (as 

opposed to just co-religionists), the greater the risk that the service will be regarded as a public 

accommodation giving rise to liability. 

 

394 See Appendix to Becket Fund Amicus, at 1a-101a (listing state laws). 
Panelists’ Written Statements 279 

Some of the many religiously motivated services that could be subjected to public 

accommodation laws are health-care services, marriage counseling, family counseling, job 

training programs, child care, gyms and day camps, life coaching, schooling, adoption services, 

and the use of wedding ceremony facilities. 

Religious business owners face the same risks, as my discussion of Elane Photography 

illustrates. 

Housing-discrimination laws. Religious colleges and universities frequently provide student 

housing and often give special treatment to married couples. Legally married same-sex couples 

could reasonably be expected to seek these benefits, but many religious educational institutions 

would conscientiously object to providing similar support for same-sex unions. Housing 

discrimination lawsuits would result. 

Under federal law, gender discrimination in housing is prohibited. See 42 U.S.C. § 3604. There 

are some limited exemptions for religious institutions, see 42 U.S.C. § 3607, but they would not 

automatically cover all conflicts triggered by legal recognition of same-sex marriage—and 

determining their scope would require costly litigation. Similarly, state and local housing laws 

ban discrimination on the basis of gender, marital status, and sexual orientation—and the 

religious exemptions are also limited. 

In several states, courts have required landlords to facilitate the unmarried cohabitation of their 

tenants, over strong religious objections. If unmarried couples cannot be discriminated against in 

housing due to marital status protections, legally married same-sex couples would likely have 

even stronger protection. 

Employment-discrimination laws. Religious organizations that object to same-sex marriage 

may also face private lawsuits when one of their employees enters into a civilly-recognized 

same-sex marriage. For many religious institutions, an employee’s entering a same-sex marriage 

would constitute a public repudiation of the institution’s core religious beliefs in a way that less 

public relationships do not. Some employers will respond by changing the terms of employment 

for those employees. These employees may then sue under laws prohibiting gender, sexual 

orientation, or marital status discrimination in employment. If the employee is a “minister,” or 

the relevant statute includes an exemption, then the defendant religious employer could raise an 

affirmative defense. But where the employee does not qualify as a minister and no legislative 

exemption is in place, the employer will be exposed to liability for any alleged adverse 

employment action. 

Moreover, if same-sex marriage is adopted without protections, religious employers who provide 

insurance for spouses of employees may be automatically required to provide insurance for all 

legal spouses—both opposite-sex and same-sex—to comply with anti-discrimination laws. Thus, 

after the District of Columbia passed a same-sex marriage law without strong conscience 
280 Peaceful Coexistence Report 

protections, the Catholic Archdiocese of Washington saw no choice but to stop offering spousal 

benefits to any of its new employees. 

Adoption of same-sex marriage will also subject religious people and institutions to a variety of 

penalties imposed by the federal, state, and local governments: 

Exclusion from government facilities and fora. Religious institutions that object to same-sex 

marriage will face challenges to their ability to access a diverse array of government facilities 

and fora. This is borne out in the reaction to the Boy Scouts’ requirement that members believe 

in God and not advocate for, or engage in, homosexual conduct. Because of this requirement, the 

Boy Scouts have had to fight to gain equal access to public after-school facilities.395 They have 

lost leases to city campgrounds and parks,396 a lease to a government building that served as their 

headquarters for 79 years,397 and the right to participate in a state-facilitated charitable payroll 

deduction program.398 All of this has happened despite the Supreme Court’s decision in Boy 

Scouts v. Dale (2000) recognizing that the Boy Scouts have a constitutional right, under the First 

Amendment, to maintain their policies. If same-sex marriage is adopted without robust 

protections for conscientious objectors, religious organizations that object to same-sex marriage 

could expect to face similar penalties, notwithstanding any constitutional rights that they may 

have. 

Loss of licenses or accreditation. A related concern exists with respect to licensing and 

accreditation decisions. In Massachusetts, for example, Boston Catholic Charities, a large and 

longstanding religious social-service organization, faced the loss of its state license to operate as 

an adoption agency because it refused on religious grounds to place foster children with samesex couples. Rather than violate its religious beliefs, Catholic Charities shut down its adoption 

services. This sort of licensing conflict would only increase after judicial recognition of samesex marriage, since many governments would require all civil marriages to be treated identically. 

Similarly, religious colleges and universities have been threatened with the loss of accreditation 

because they object to sexual conduct outside of opposite-sex marriage. In 2001, for example, 

the American Psychological Association, the accrediting body for professional psychology 

programs, threatened to revoke the accreditation of religious colleges that prefer co-religionists, 

in large part because of concerns about codes of conduct that prohibit sex outside of marriage 

 

395 Boy Scouts of America v. Till, 136 F. Supp. 2d 1295 (S.D. Fla. 2001) (challenge to Boy Scouts’ use of school

facilities). 

396 Evans v. City of Berkeley, 129 P.3d 394 (Cal. 2006) (equal access to boat berths denied to Scouts). 

397 Cradle of Liberty Council, Inc. v. City of Philadelphia, 851 F. Supp. 2d 936, 939 (E.D. Pa. 2012). 

398 Boy Scouts of Am. v. Wyman, 335 F.3d 80 (2d Cir. 2003) (Boy Scouts could be excluded from state’s workplace

charitable contributions campaign). 
Panelists’ Written Statements 281 

and homosexual behavior. Where same-sex marriage is adopted without strong religious 

protections, religious colleges and universities that oppose same-sex marriage will likely face 

similar threats. And the same issue will also affect licensed professionals. 

Disqualification from government grants and contracts. Religious universities, charities, 

hospitals, and social service organizations often serve secular government purposes through 

contracts and grants. For instance, religious colleges participate in state-funded financial aid 

programs, religious counseling services provide marital counseling and substance abuse 

treatment, and religious homeless shelters care for those in need. 

Many contracts and grants require recipients to be organized “for the public good” and forbid 

recipients to act “contrary to public policy.” If same-sex marriage is recognized without specific 

accommodations for religious organizations, those organizations that refuse to approve, 

subsidize, or perform same-sex marriages could be found to violate such standards, thus 

disqualifying them from participation in government contracts and grants. For example, religious 

universities that oppose same-sex marriage could be denied access to government programs 

(such as scholarships, grants, or tax-exempt bonds) by governmental agencies that adopt an 

aggressive view of applicable anti-discrimination standards. 

Religious organizations opposed to same-sex marriage also face the loss of government social 

service contracts. After the District of Columbia adopted same-sex marriage, Catholic Charities 

stopped providing foster care services for the city because it had to choose between continuing 

its program and violating its religious beliefs regarding the recognition of same-sex marriages. 

And in Illinois, a state court held that Catholic Charities was required to place children for 

adoption with couples in civil unions or forgo its annual contracts with the state. If same-sex 

marriage is given legal recognition without accommodation for religious objectors, many 

religious organizations will be forced either to extend benefits to same-sex spouses or to stop 

providing social services in partnership with government. 

Loss of state or local tax exemptions. Most religious institutions have charitable tax-exempt 

status under federal, state and local laws. But without conscience protections, that status could be 

stripped away, based solely on a religious institution’s conscientious objection to same-sex 

marriage. Whether the First Amendment could provide an effective defense to this kind of 

penalty is an open question. 

Loss of educational and employment opportunities. Individual religious believers would also 

face an array of penalties. In Vermont, individual town clerks may be fired if they seek to avoid 

issuing civil union licenses to same-sex couples for religious reasons, and at least twelve justices 

of the peace in Massachusetts lost their jobs because they could not facilitate same-sex 

marriages. The situation is particularly acute for state-employed professionals like social workers 

who face a difficult choice between their conscience and their livelihood. 
282 Peaceful Coexistence Report 

Students in counseling programs at public universities face similarly stark choices. When Julea 

Ward, a Master’s in Counseling student in her final semester at Eastern Michigan University, 

told her professors that she had no problem counseling individual gay and lesbian clients but 

could not in good conscience assist them with their same-sex relationships, she was expelled for 

violating the school’s anti-discrimination policy. See Ward v. Polite, 667 F.3d 727 (6th Cir. 

2012) (reversing grant of summary judgment against Ward on her First Amendment claims). 

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. 

Lori H. Windham 

Chairman Castro, Vice-Chair Thernstrom, and other esteemed members of the Commission. 

Thank you for your consideration of this issue and for inviting me to speak today. 

I am here today representing The Becket Fund for Religious Liberty, where I serve as 

Senior Counsel. At the Becket Fund, we protect religious freedom for all religious traditions, 

including Buddhists, Christians, Hindus, Muslims, Jews, and others. We have defended a 

mosque facing discrimination from its neighbors in Tennessee, a Santeria priest banned 

from animal sacrifice in Texas, a synagogue forbidden from expanding in California, and 

Amish homebuilders facing jail time for their religious practices in New York. We also 

represented a Lutheran church before the Supreme Court in Hosanna-Tabor v. EEOC. We 

believe that the legal protections at stake in that case are critical to the preservation of religious 

freedom in our nation. 

Today’s discussion asks whether civil liberties and anti-discrimination norms can be 

reconciled. The answer is yes—in most cases, greater religious freedom and greater freedom 

of speech further the same interests as our anti-discrimination laws. They allow small and 

politically weak groups to maintain their missions and their voices. Cases like Hosanna-Tabor 

v. EEOC demonstrate how we can protect both our constitutional freedoms and our diverse 

society. 

That’s probably not the response you’ll hear from everyone today, and the decision has come 

under sharp criticism in some quarters. But the Supreme Court did not vote 9-0 in HosannaTabor because none of the justices care about our anti- discrimination laws. They did so 

because the balance between the two has already been struck; it has been struck by our First 

Amendment. And for 40 years under this particular legal doctrine, that balance has worked 

well. 
Panelists’ Written Statements 283 

In Hosanna-Tabor, the Solicitor General’s office attempted to upset that balance by arguing the 

ministerial exception did not exist. Justice Kagan criticized that attempt at oral argument, 

calling it “amazing.” She joined her eight colleagues in rejecting that argument in a unanimous 

opinion. 

The lesson of Hosanna-Tabor is not that religious freedom is absolute, nor that antidiscrimination laws are unimportant. The lesson of that unanimous decision is this: if the 

separation of church and state means anything, it means that the government should not 

be picking ministers. And so in the special relationship between a religious body and its 

ministers, the government’s interest is at its weakest, and religious freedom is at its 

peak.399 When we begin to look at other relationships, other positions, other actions, the 

conversation will necessarily be different. I’m sure the Commission will be hearing a great 

deal about those situations today, and I would like to touch on them briefly at the end of my 

statement. 

I. Hosanna-Tabor and the Protection of Religious Freedom

By now, I am sure you’re aware of the background of the Hosanna-Tabor decision. The case 

was a conflict between a Lutheran church and school, Hosanna- Tabor, and one of the teachers 

at that school, Cheryl Perich. Ms. Perich taught both secular and religious subjects and was 

charged with transmitting the faith to the students in her care. She was a commissioned 

minister of the church, a qualification required to teach at the school, unless no qualified 

commissioned ministers were available. Hosanna-Tabor terminated Ms. Perich by a vote of 

the congregation to rescind her “call” as a commissioned minister. 

The church terminated her for insubordination and refusal to use the church’s dispute 

resolution mechanism. One of the church’s religious teachings, common to many religious 

groups, is that church members should settle their disputes within the church.400 Thus, although 

the termination was made for religious reasons, Ms. Perich claimed that the religious reasons 

 

399 I’m using the terms “church” and “minister” because they are terms the Supreme Court uses. In this situation, 

both are terms of art and not limited to Christian denominations. As Justices Alito and Kagan explained in 

their concurrence, “The term ‘minister’ is commonly used by many Protestant denominations to refer to 

members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or 

Buddhists. In addition, the concept of ordination as understood by most Christian churches and by Judaism has 

no clear counterpart in some Christian denominations and some other religions. Because virtually every 

religion in the world is represented in the population of the United States, it would be a mistake if the term 

‘minister’ or the concept of ordination were viewed as central to the important issue of religious autonomy that 

is presented in cases like this one. Instead, courts should focus on the function performed by persons who 

work for religious bodies.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694, 711 

(2012). 

400 The religious basis for this teaching among many Christian denominations, including The Lutheran 

Church—Missouri Synod, is found in 1 Corinthians 6:1-7: “If any of you has a dispute with another, dare he 

take it before the ungodly for judgment instead of before the saints?” 
284 Peaceful Coexistence Report 

were pretextual. She sued the church for retaliation under the Americans with Disabilities Act, 

claiming that the termination was retaliation for her threat to bring a disability discrimination 

claim, since prior to the termination she had been on medical leave. Perich asked for back pay, 

frontpay, attorneys’ fees, and reinstatement.401 In response, the church argued that the federal 

courts were not fit to adjudicate the claim. For the past 40 years, the federal appellate courts 

have recognized what is known as the ministerial exception, a doctrine stating that the 

civil courts should not interfere in employment disputes between churches and their ministers. 

The Supreme Court unanimously ruled in the church’s favor. Surveying the history of 

the religion clauses, the Court concluded that the First Amendment prohibits the 

government from selecting ministers. Perich, because of the religious nature of her work and 

religious qualifications required for that work, was a minister, and therefore the courts lack 

the power to decide whether or not the church had a good reason for removing her from that 

religious position. The ministerial exception prohibits the courts from reinstating ministers who 

have been terminated, and also from penalizing churches for the selection or termination of a 

particular minister.402

The idea that the ministerial exception exists is not controversial, a fact demonstrated by the 

unanimity of the Supreme Court’s decision. As we said to the Court, “This case is about 

institutional separation—the least controversial core of separation of church and state. The 

government cannot control the internal affairs of churches any more than churches can control 

the institutions of government.”403 Every organization represented on this panel recognizes 

that the exception should exist in some form.404 The disagreement lies in its extent and its 

substance. 

The Supreme Court demonstrated that it is not necessary—indeed, it is not constitutionally 

permissible—to sacrifice religious freedom in order to preserve anti- discrimination laws. 

Hosanna-Tabor does not teach that the interests served by anti-discrimination laws are 

unimportant—the Supreme Court, both as a unanimous body and as individual justices, have 

emphasized the importance of antidiscrimination laws again and again. Hosanna-Tabor does 

 

401 Perich abandoned her reinstatement claim at the Supreme Court, but still sought frontpay, compensatory 

damages, punitive damages, and other remedies. Hosanna-Tabor, 132 S.Ct. at 709. 

402 See Hosanna-Tabor, 132 S.Ct. at 709. Monetary penalties, such as those sought in Hosanna-Tabor, can be 

particularly worrisome for minority faith groups, whose congregations may be quite small and religious 

tenets unfamiliar to judges and juries asked to determine their claims. See infra at 8. 

403 Hosanna-Tabor v. EEOC, Reply Br. 10 (“Reply Br.”) (citing Hosanna-Tabor v. EEOC, Brief amici curiae 

of Professor Eugene Volokh, et al. 5-27). 

404 See Brief amici curiae of Professor Eugene Volokh, et al. 2-5 (amici, including Christian Legal Society, 

arguing for strong conception of the ministerial exception rooted in history); Brief amici curiae of Americans 

United for Separation of Church and State, et al. 5-6 (amici, including American Civil Liberties Union, stating 

that ministerial exception is rooted in “important religious-liberty concerns,” but “should be no broader than 

necessary”). 
Panelists’ Written Statements 285 

teach that the selection of ministers is a matter of religious, rather than government, concern 

and expertise.405 As the Supreme Court explained, “The purpose of the exception is not to 

safeguard a church’s decision to fire a minister only when it is made for a religious reason. 

The exception instead ensures that the authority to select and control who will minister to the 

faithful—a matter ‘strictly ecclesiastical’—is the church’s alone.”406

Again, this is neither a new nor minority view—it is the view that ten state supreme courts 

and twelve federal circuit courts took in the last 40 years,407 and it is the view of a unanimous 

U.S. Supreme Court. It is an understanding of our laws and our constitution steeped in 

history. As the Supreme Court’s decision explains, one of the primary concerns underlying 

both religion clauses was Americans’ desire to appoint their own ministers and not revert to 

the European systems they had fled, where such positions were filled by the national 

government. 

Seemingly the only group not to recognize the ministerial exception was the EEOC. Before the 

Supreme Court, the solicitor general’s office argued that no ministerial exception existed, and 

that, despite the religion clauses, churches had no more constitutional protections than labor 

unions or social clubs.408

For some, this idea might be acceptable. Some will doubtless reject the notion that religious 

organizations should have any unique protection, over and above the free speech and 

associational rights that every group enjoys. But for religious believers of many different faiths, 

the idea that they would not have such rights is unthinkable. That is not only because 

religious freedom is singled out for special protection in our Constitution, but also because, for 

many, religion is a fundamental and organizing principle of life, commanding conscience and 

informing moral choices. To say that religious exercise has no unique freedoms, that religious 

bodies are accorded no special rights of their own, is to plunge our government into the

business of regulating religious bodies, and to strongly curtail the rights of those for whom 

religion directs life decisions, both personal and public, individual and collective.409

 

405 As we explained to the Supreme Court: “Claims of discrimination in selection of ministers are necessarily 

claims that churches applied impermissible criteria, or misapplied acceptable criteria, to inherently religious 

decisions. The government can have no compelling interest in a church’s criteria for choosing ministers. This is

simply a matter beyond the authority of government . . . . This case turns on the government’s alleged interest 

in the criteria for choosing religion teachers; that interest is nil.” Reply Br. 13. 

406 Hosanna-Tabor, 132 S.Ct. at 709 (internal citation omitted). 

407 All circuits to address the question agreed that the “ministerial exception” existed, based upon Supreme Court 

precedent. They disagreed on how that exception should be interpreted, the circuit split which prompted Supreme 

Court review. See Hosanna-Tabor v. EEOC, Pet. for a writ of certiorari 11-25. 

408 The Supreme Court criticized this argument directly in its opinion. Hosanna-Tabor, 132 S.Ct. at 706. 

409 For a more in-depth discussion of this problem, see Stephen L. Carter, God’s Name in Vain: The Wrongs 

and Rights of Religion in Politics (2000). 
286 Peaceful Coexistence Report 

By respecting the balance struck by our First Amendment, we protect the best of the American 

tradition. We allow our religious organizations and our religious individuals to be free. 

In doing so, we strengthen society and support our commitments to both freedom and 

diversity. 

II. Hosanna-Tabor and the Protection of Religious Diversity

It is far too narrow to view Hosanna-Tabor as a conflict between the First Amendment 

and anti-discrimination law. It is instead a case where the protection of religious freedom 

promotes religious diversity. 

At the heart of the ministerial exception lies the freedom for religious groups to select which 

voices will carry their message. As justices Kagan and Alito explained in their concurrence, 

“religious bodies have been the preeminent example of private associations that have ‘act[ed] 

as critical buffers between the individual and the power of the State.’”410 That critical 

function would be lost if the state were permitted to interfere in the selection of a religious 

group’s leaders, or second-guess the selection of its speakers. 

By permitting religious groups, small and large, to control their message, we permit them to 

join our public discourse and to share their own religious teachings. Such protections may be 

especially important for new, small or unfamiliar groups, who do not have the public 

goodwill or political notice that larger groups may enjoy.411

Without the right recognized in Hosanna-Tabor, many fundamental and longstanding 

religious practices would be unlawful. As we told the Supreme Court, “Without constitutional 

protection, federal, state, and local employment laws would prohibit many common religious 

practices—including the all-male clergy among Catholics and Orthodox Jews, rules about 

ethnicity and descent in some branches of Judaism, Islam, Hinduism, Zoroastrianism, and 

Native American religions, and in states that prohibit marital-status discrimination, celibacy 

rules. Although some anti-discrimination laws contain exemptions that allow religious 

organizations to hire on the basis of religion,

412 these exemptions do not protect hiring on the 

basis of any other protected category. And they do not prevent ministers willing to claim 

discrimination on the basis of other categories from demanding that courts second- guess the 

 

410 Hosanna-Tabor, 132 S.Ct. at 712. 

411 Similar concerns prompted Congress to pass the Religious Freedom Restoration Act, protecting religious 

individuals and groups from general laws that infringe upon their faith, and the Religious Land Use and 

Institutionalized Persons Act, which protects religious individuals and groups in cases involving land use and 

prisoners’ rights. See infra at 9-10. 

412 42 U.S.C. §12113(d) (Supp. 2009) (Americans with Disabilities Act); 42 U.S.C. §2000e-1(a), §2000e-2(e) 

(2) (2006) (Title VII). 
Panelists’ Written Statements 287 

church’s assessment of their religious qualifications. The constitutional ministerial exception 

is thus essential to the right of churches to choose their own ministers.”413

The ministerial protection has protected a wide variety of religious groups, including Orthodox 

Jews, the African Methodist Episcopal Church, the Salvation Army, Seventh-Day Adventists, 

and practitioners of traditional Native American spirituality.414 Without that protection, each 

of these groups, and many others, would be subject to intrusive government oversight of their 

minister selection and overwhelmed with litigation. 

There are difficult cases on the other side of the equation, too—I’m sure we will hear some 

today—where religious groups make seemingly questionable decisions and claim the shield 

of the ministerial exception. But just as we understand that free speech means occasionally 

tolerating speech we would prefer to silence, so, too, free exercise means occasionally 

permitting actions that we would rather prohibit. Our constitutional rights will not protect us 

for long if they are designed to target the worst offenders, rather than to protect the freedom of 

each citizen. 

Despite the occasional hard case, the answer is not to pit religious freedom against antidiscrimination norms, but to recognize that supporting religious freedom promotes diversity. 

It allows opposing viewpoints to thrive, dissenting voices to call our leaders to account, and 

religiously inspired people to bring about social change. 

We have a proud tradition of such movements in the United States. These go back to our 

earliest days. And protections for minority religious groups—both the ministerial exception, 

and protections for conscientious objectors to general laws—have paid great dividends. During 

the colonial era, many Americans harbored deep suspicions of Quakers, who criticized the 

religious practices of others, refused to swear allegiance to the new nation, and did not bear 

arms in an era where every able-bodied man was expected to contribute to the common 

defense. Quakers, with their refusal to take oaths and their refusal to take up arms, provided 

some colonies with their first introduction to religious dissent. Some governments reacted 

badly—Quakers often paid for their refusal with jail time—but the nation gradually came 

around to the idea that those willing to risk jail for their principles were likely to make better 

 

413 Hosanna-Tabor, Pet’r’s Opening Br. 18-19. 

414 See, e.g., Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (4th Cir. 2004) (applying 

ministerial exception to selection of kosher supervisor at Orthodox Jewish nursing home); Rayburn v. 

General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985) (applying ministerial exception 

to hiring decisions for an internship and associate minister position); McClure v. Salvation Army, 460 F.2d 553 

(5th Cir. 1972) (applying ministerial exception to case involving former minister); Hopkins v. DeVeaux, 781 F. 

Supp. 2d 1283 (N.D. Ga. 2011) (applying ministerial exception to AME Church in case by former minister); 

Stately v. Indian Cmty. Sch. of Milwaukee, Inc., 351 F. Supp. 2d 858 (E.D. Wis. 2004) (applying 

ministerial exception to case involving school based on Native American spiritual principles). 
288 Peaceful Coexistence Report 

citizens, not worse ones.415 Colonies gradually began to accept the notion of religious 

protections for Quakers, and George Washington showed mercy to Quakers who refused to 

bear arms in the Revolutionary War.416 This protection for the Quakers would benefit our 

nation later—the Quakers went on to play a public and prominent role in the abolitionist 

movement, and have continued to fight for civil rights and social justice to this day. And 

the Quakers are not alone—religious groups have been active in many important, and initially 

unpopular, social causes. Religious groups were active in the abolitionist movement, 

served as a central organizer of the civil rights movement, and continue to provide social

services and act as a voice for the disadvantaged.417

Religious groups, including small and unpopular religious groups, have existed in and served 

our nation throughout its history, and continue to do so today. “[V]irtually every religion in 

the world is represented in the population of the United States.”418 Most individual 

congregations are small—half the churches in America have fewer than 50 regularly 

participating adults.419 Judges and juries cannot be expected to be familiar with the teachings 

and makeup of each of these groups, and that unfamiliarity can cost a small congregation 

dearly. This is one of reasons why disputes over theological matters and the selection of 

ministers should not be entrusted to the judicial system. The modern ministerial exception is 

both a consequence of and a protection for religious diversity. 

This idea is at work in the Hosanna-Tabor decision, and it should also apply to less formal 

religious groups such as student groups organizing on college campuses. Without the right to 

govern their membership policies and select their own leaders, they cannot guarantee that their 

leaders will embody their message. We may not always like the messages such groups send, 

but our First Amendment does not ask whether people say things we agree with, only whether 

they possess a fundamental right to do so. If the First Amendment allowed us to interfere 

with unpopular speech we disagreed with, we could never even get to the point where we 

could discuss same-sex marriage as a society, and the civil rights movement would have faced 

even more arduous barriers. 

 

415 This description is drawn from the longer account in Kevin Seamus Hasson, The Right to Be Wrong 45-67 

(2005). 

416 Id.; see also Margaret Hope Bacon, The Quiet Rebels: the Story of Quakers in America 73 (1969). 

417 See, e.g., Carter, supra, at 83-98 (describing religious participation in social movements); John T. Noonan, 

Jr., The Believer and the Powers that Are 169-93 (1987) (discussing religious roots of Abolitionist movement); 

id. at 449-53 (discussing the history of the civil rights movement, including the importance of the SCLC and 

contributions from the American Friends Service Committee); American Friends Service Committee: Our Work, 

available at http://afsc.org/our-work (last visited Mar. 8, 2013) (describing organization’s work to promote peace 

and social justice). See also Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the 

Dawn of the Rights Revolution (2000) (describing the group’s great contribution to civil liberties). 

418 Hosanna-Tabor, 132 S.Ct. at 711 (Alito, J., concurring). 

419 See Mark Chaves, Congregations in America 18 (2004). 
Panelists’ Written Statements 289 

Hosanna-Tabor might at first blush appear to be a conflict between religious freedom and 

anti-discrimination laws. But our Constitution, by protecting religious freedom, fosters both 

individual rights and diversity. As the unanimous Supreme Court said: “The interest of 

society in the enforcement of employment discrimination statutes is undoubtedly important. 

But so too is the interest of religious groups in choosing who will preach their beliefs, 

teach their faith, and carry out their mission. When a minister who has been fired sues 

her church alleging that her termination was discriminatory, the First Amendment has struck

the balance for us. The church must be free to choose those who will guide it on its way.” 

III. Lessons from Hosanna-Tabor and Other Conflicts

Although I am here to address Hosanna-Tabor v. EEOC, the lessons drawn from this case can 

apply to other situations. As I mentioned above, the ministerial exception is distinct from the 

larger question of religious exemptions from general laws, but both are critical and historically 

important protections for religious freedom. We have seen an increase in the conflicts between 

religious freedom and government regulation. These conflicts take many forms. At the 

Becket Fund, we have defended Amish farmers facing charges because their traditional home 

building methods, although they have stood the test of time, do not meet modern building 

codes geared for technological innovation. We have asked the Supreme Court to hear a 

case for a Hutterite community in Montana which was specifically targeted by a state law 

mandating unemployment insurance coverage for its members—even though no member had 

ever filed a claim and the community holds all its property in common and takes care of its sick 

and injured itself. 

Protection for religious freedom, even when it conflicts with otherwise applicable law, is an 

important part of our nation’s history.420 Such protections help religious groups, including 

minority faiths, to thrive. Without such protections, the Amish could be forced to give up 

 

420 See, e.g., Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 

103 Harv. L. Rev. 1409 (1990). 
290 Peaceful Coexistence Report 

their way of life,421 Jehovah’s Witnesses could be forced to bear arms,422 Seventh-Day 

Adventists and Jews could face a choice between their livelihood and keeping the Sabbath.423

These are not hypothetical issues; each is based upon a well-known case. Nor are they isolated 

problems. We have seen local laws abused to prohibit unpopular religious practices, such 

as when a Texas city tried to stop our client, a Santeria priest, from carrying out animal 

sacrifice. We have seen it in national laws, such as the HHS Mandate, which requires 

religious colleges, social service organizations, and religious business owners to violate their 

faith by providing coverage for contraceptives and abortion-causing drugs. 

Protection for religious freedom is fully consistent with the American tradition of democracy 

and respect for the rule of law. The idea of conscientious objection to general laws is not a 

recent invention; it has a long and distinguished history. In the modern era, Congress has 

been so concerned about this issue that it has passed several important pieces of civil rights 

legislation, including the American Indian Religious Freedom Act, the Religious Freedom 

Restoration Act, and the Religious Land Use and Institutionalized Persons Act.424 All were 

passed w ith broad bipartisan majorities. These laws recognize that conscience matters, that 

religious practice should be protected, and that one-size-fits-all legislation can create 

problems in a nation of diverse religious beliefs. 

The conscientious objection model embodied in our history and in our law provides guidance 

for the questions being discussed today. When we allow those with sincere religious 

beliefs to live their faith—even if it requires an exemption from otherwise applicable laws—

our nation is richer for it. Religious minorities are protected, and religious groups are free to 

serve their communities and our nation. 

 

421 See Wisconsin v. Yoder, 406 U.S. 205 (1972). 

422 Conscientious objection to military service is protected by statues, the first of which was enacted during the 

Civil War. See Hasson, supra, at 51-52. During World War II, Jehovah’s Witnesses faced mob violence for 

their religiously motivated refusal to bear arms and to salute the flag. Their struggles against general laws

regulating speech have been responsible for a number of key First Amendment decisions. See, generally, 

Peters, supra. 

423 See Sherbert v. Verner, 374 U.S. 398 (1963) (protecting right of Seventh Day Adventist to refuse Saturday 

work); Braunfeld v. Brown, 366 U.S. 599 (1961). In Braunfeld, the Supreme Court upheld the law as justified 

by compelling interest, even though it placed heavy burdens on religious exercise. See Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 435 (2006) (discussing Braunfeld in the exemption 

context). 

424 See 42 U.S.C. § 1996 (AIRFA); 42 U.S.C. § 2000bb (RFRA); 42 U.S.C. § 2000cc (RLUIPA). 
Speakers’ Biographies 291 

PANELISTS’ BIOGRAPHIES 

Alan Brownstein 

Alan Brownstein is a professor of law at the University of California, Davis School of Law 

where he holds the Boochever and Bird Chair for the Study and Teaching of Freedom and 

Equality. While the primary focus of his scholarship relates to church-state issues and free 

exercise and establishment clause doctrine, he has also written extensively on freedom of speech, 

privacy and autonomy rights, and other constitutional law subjects. His articles have been 

published in numerous academic journals including the Stanford Law Review, Cornell Law 

Review, Northwestern Law Review, UCLA Law Review and Constitutional Commentary. He is 

a member of the American Law Institute and serves on the Legal Committee of the Northern 

California American Civil Liberties Union and the Litigation Committee of the American 

Association of University Professors. Professor Brownstein is a frequent invited lecturer at 

academic conferences and regularly participates as a speaker or panelist in law related programs 

before civic, legal, religious, and educational groups. He has testified on several occasions 

before California Assembly and Senate Committees on legislation promoting religious liberty 

and bills that raise Establishment Clause concerns. 

Professor Brownstein received his B.A. degree from Antioch College. He earned his J.D. 

(magna cum laude) from Harvard Law School where he served as a Case Editor of the Harvard 

Law Review. After graduating from Harvard, he clerked for the Honorable Frank M. Coffin, 

Chief Judge of the U.S. Court of Appeals for the 1st Circuit in Portland, Maine. Professor 

Brownstein practiced law in Los Angeles before joining the UC Davis law faculty in 1981. He 

has also taught as a visiting professor at the University of Texas, Austin; Dalhousie University, 

Halifax, Nova Scotia; and the University of New South Wales, Sydney, Australia. 

Kimberlee Wood Colby 

Kim Colby has worked for the Center for Law and Religious Freedom since graduating from 

Harvard Law School in 1981. She has represented religious student groups seeking access to 

campus in two cases heard by the United States Supreme Court, as well as in several cases before 

federal appellate courts. She was a proponent of congressional passage of the Equal Access Act, 

20 U.S.C. §§ 4071-4074. Ms. Colby graduated summa cum laude from the University of Illinois. 

Majoring in American history, her particular interest was slavery in Colonial North America. 

Marc O. DeGirolami 

Marc O. DeGirolami is an associate professor at St. John’s University School of Law, and 

associate director of the Center for Law and Religion. 
292 Peaceful Coexistence Report 

His scholarship focuses on law and religion, constitutional law, and criminal law. His book, The 

Tragedy of Religious Freedom, is forthcoming from Harvard University Press. His papers have 

appeared in various law journals including Constitutional Commentary, Legal Theory, Ohio 

State Journal of Criminal Law, Journal of Church and State, Boston College Law Review, 

Alabama Law Review, and St. John's Law Review, among others. He has contributed chapters to 

books about the theory and history of criminal punishment. He also has written occasionally for 

The New Republic. 

Following law school, DeGirolami clerked for Judge William E. Smith of the U.S. District Court 

for the District of Rhode Island and Judge Jerome Farris of the U.S. Court of Appeals for the 

Ninth Circuit. His professional experience includes service as an Assistant District Attorney in 

Cambridge, Massachusetts. Prior to joining the St. John’s faculty, he taught legal research and 

writing as an Associate-in-Law at Columbia Law School, and then served as a Visiting Assistant 

Professor and Scholar in Residence at Catholic University’s Columbus School of Law. He 

received his J.S.D. and LL.M. from Columbia Law School, his J.D. from Boston University 

School of Law, his M.A. from Harvard University, and his B.A. from Duke University. 

At St. John’s, he teaches Constitutional Law, Criminal Law, courses in Law and Religion, and 

Professional Responsibility. 

Leslie C. Griffin 

Professor Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, 

Las Vegas, Boyd School of Law. She teaches Constitutional Law and the First Amendment and 

is an expert in the field of law and religion. She is author of the Foundation Press casebook, Law 

and Religion: Cases and Materials (3d. ed. forthcoming 2013) and editor of Law and Religion: 

Cases in Context (Aspen 2010). Professor Griffin has published numerous law review articles 

about law, religion and ethics in the Indiana Law Journal, Cardozo Law Review, Emory Law 

Journal, Georgetown Journal of Legal Ethics and Wisconsin Law Review. Her essay about 

Religion and the Courts 1790-1947 recently appeared in the Cambridge History of Religions in 

America (Stephen J. Stein ed., 2012). 

Professor Griffin received her Ph.D. in Religious Studies from Yale University and her J.D. from 

Stanford Law School. Before becoming a law professor, Griffin clerked for the Honorable Mary 

M. Schroeder of the U.S. Ninth Circuit Court of Appeals and was an assistant counsel in the 

Department of Justice’s Office of Professional Responsibility, which investigates professional 

misconduct by federal prosecutors. 

 
Speakers’ Biographies 293 

Marci A. Hamilton 

Marci A. Hamilton is one of the United States’ leading church/state scholars and holds the Paul 

R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, 

where she specializes in church/state issues and the dynamics of child sex abuse in institutional 

settings. She is an author, lecturer, and advocate on the protection of the vulnerable from 

religious institutions. She is also a national leader for legislative reform -- particularly statute of 

limitations reform through her website www.sol-reform.com -- for the protection of children 

from sex abuse. During 2012, she was honored as one of Pennsylvania’s Women of the Year, 

and received the National Crime Victim Bar Association’s Frank Carrington Champion of Civil 

Justice Award. 

Professor Hamilton is the author of JUSTICE DENIED: WHAT AMERICA MUST DO TO PROTECT ITS 

CHILDREN (Cambridge University Press 2008, 2012); GOD VS. THE GAVEL: RELIGION AND THE 

RULE OF LAW (Cambridge University Press 2005, 2007); and the co-editor of FUNDAMENTALISM,

POLITICS, AND THE LAW (Palgrave Macmillan 2011). She is currently a bi-monthly columnist for 

www.justia.com and was a bi-monthly columnist for www.findlaw.com for ten years. Professor 

Hamilton was lead counsel for the City of Boerne, Texas, in Boerne v. Flores, 521 U.S. 507 

(1997), before the United States Supreme Court in its seminal federalism and church/state case 

holding the Religious Freedom Restoration Act unconstitutional. She has been a visiting 

professor at Princeton University, New York University School of Law, Emory University 

School of Law, and the Princeton Theological Seminary. Professor Hamilton clerked for 

Associate Justice Sandra Day O’Connor of the United States Supreme Court after graduating 

from the University of Pennsylvania Law School; the Graduate School of Pennsylvania State 

University; and Vanderbilt University. She is a member of Phi Beta Kappa and Order of the 

Coif. 

Michael Helfand 

Michael Helfand is an associate professor at Pepperdine University School of Law and associate 

director of the Diane and Guilford Glazer Institute for Jewish Studies. He received his J.D. from 

Yale Law School in 2007 and his Ph.D. in Political Science from Yale University in 2009. 

Professor Helfand’s primary research interests include law and religion, arbitration, 

constitutional law, and contracts. In particular, his work focuses on the intersection of private 

law and religion - such as religious arbitration, religious litigation, religious contracts and 

religious torts - as well as the intersection of group rights and the law, political theories of 

toleration, and multiculturalism. Professor Helfand’s articles have appeared in a variety of 

journals, including the New York University Law Review, Minnesota Law Review 

(forthcoming), Boston University Law Review (forthcoming), George Mason Law Review, 
294 Peaceful Coexistence Report 

University of Pennsylvania Journal of Constitutional Law, Journal of Law Religion and State, 

William & Mary Bill of Rights Journal, and Journal of Law & Religion. 

Prior to joining the Pepperdine Law faculty, Professor Helfand was an associate at Davis Polk & 

Wardwell LLP, where his practice focused on complex commercial litigation. Before entering 

private practice, Professor Helfand clerked for the Honorable Julia Smith Gibbons of the U.S. 

Court of Appeals for the Sixth Circuit. 

John D. Inazu 

Professor John Inazu’s scholarship focuses on the First Amendment freedoms of speech, 

assembly, and religion, and related questions of legal and political theory. His first book, 

Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012), seeks to 

recover the role of assembly in American political and constitutional thought. Professor Inazu's 

work is also published or forthcoming in the Cornell Law Review, Hastings Law Journal, Law

and Contemporary Problems, and a number of other law reviews and specialty journals. Prior 

to joining the law faculty, Professor Inazu was a visiting assistant professor at Duke University 

School of Law and a Royster Fellow at the University of North Carolina at Chapel Hill. He

clerked for Judge Roger L. Wollman of the U.S. Court of Appeals for the Eighth Circuit and 

served for four years as an associate general counsel with the Department of the Air Force at the 

Pentagon. Professor Inazu holds a J.D. from Duke University School of Law and a Ph.D. in 

Political Science from the University of North Carolina. 

Ayesha N. Khan 

Ayesha N. Khan is the Legal Director at Americans United for Separation of Church and State. 

Ms. Khan is an expert on First Amendment issues, including the separation of church and state, 

the free exercise of religion, and the right of free speech. Under her supervision, Americans 

United's legal team has litigated dozens of cases, and filed scores of friend-of-the-court briefs, in 

courts throughout the country. In the course of her work, she has appeared before the United 

States Supreme Court, almost every federal court of appeals, and dozens of trial courts. 

Ms. Khan has made countless media appearances and public presentations, having been a guest 

on ABC World News Tonight, NBC Nightly News, MSNBC's HardBall with Chris Mathews, Fox 

TV's O'Reilly Factor, CNN's Prime News and The World Today and NPR's Morning Edition, All 

Things Considered, and The Tavis Smiley Show. And she has been quoted in almost every 

newspaper with a national circulation, including The Washington Post, The New York Times, Int'l

Herald Tribune, The Atlanta Journal-Constitution, and Chicago Tribune. 
Speakers’ Biographies 295 

Before coming to Americans United, Ms. Khan worked at the ACLU’s National Project, where 

she litigated complex, class-action cases designed to improve conditions in prisons and jails 

throughout the country. Prior to that, Ms. Khan was a litigation associate at Covington & 

Burling LLP in Washington, DC. 

Ms. Khan received her A.B. with Highest Honors from the University of Michigan in 1985. She 

graduated in 1989 from Boalt Hall School of Law at the University of California at Berkeley, 

where she placed in the Order of the Coif, received the Women in the Public Interest Scholarship, 

served on the California Law Review, and was an Articles Editor with the Berkeley Women's 

Law Journal. She clerked on the United States District Court for the Northern District of 

California. 

Daniel Mach 

Daniel Mach is the Director of the ACLU Program on Freedom of Religion and Belief. He leads 

a wide range of religious-liberty litigation, advocacy, and public education efforts nationwide, 

and often writes, teaches, and speaks publicly on religious freedom issues. Prior to his work at 

the ACLU, Mr. Mach was a partner in the Washington, DC office of Jenner & Block, where he 

specialized in First Amendment law. 

Edward Whelan 

Edward Whelan is president of the Ethics and Public Policy Center. He directs EPPC's program 

on The Constitution, the Courts, and the Culture. His areas of expertise include constitutional 

law and the judicial confirmation process. As a contributor to National Review Online's Bench 

Memos blog, he has been a leading commentator on nominations to the Supreme Court and the 

lower courts and on issues of constitutional law. He has written essays and op-eds for leading 

newspapers, opinion journals, and academic symposia and law reviews. 

In 2011, the National Law Journal named Mr. Whelan among its "Champions and Visionaries" 

in the practice of law in D.C. The National Law Journal praised Mr. Whelan for "pioneer[ing] 

the field of legal blogging" and for offering "commentary [that] infuses national debates over 

judicial nominees, Supreme Court ethics and appellate court decisions.” 

Mr. Whelan has served in positions of responsibility in all three branches of the federal 

government. He is a former law clerk to Supreme Court Justice Antonin Scalia and to Judge J. 

Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit. From 2001 to 2004, Whelan 

was the Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. 

Department of Justice. He also served on Capitol Hill as General Counsel to the U.S. Senate 

Committee on the Judiciary. 
296 Peaceful Coexistence Report 

Mr. Whelan is a graduate of Harvard College and Harvard Law School. 

Lori H. Windham 

Lori Halstead Windham is Senior Counsel at the Becket Fund for Religious Liberty. In her 

seven years at the Becket Fund, she has appeared in religious freedom cases before eleven 

federal circuits and the U.S. Supreme Court. She represents clients in cases arising under the 

Free Exercise Clause, Establishment Clause, RFRA, RLUIPA, and state religious freedom 

laws. Her diverse clients have included Amish builders penalized for their traditional 

construction practices, a Santeria priest prohibited from conducting animal sacrifice, 

Evangelical churches unable to use their property for worship, and public school districts 

sued for accommodating religious expression. She has been invited to debate and lecture on 

religious liberty issues at Yale Law School, George Mason Law School, Georgetown 

University Law Center, and other venues. She has testified before the U.S. House of 

Representatives Committee on the Judiciary on abuses of executive power as they relate to 

religious freedom. 

In 2011, Lori joined her colleagues at the Becket Fund and Prof. Doug Laycock in 

representing Hosanna-Tabor Evangelical Lutheran Church and School before the U.S. 

Supreme Court. They secured a unanimous victory in what the Wall Street Journal called “the 

most important religious liberty case in a half century.” 

Lori is a graduate of Harvard Law School, where she was a member of the Harvard Legal Aid 

Bureau and was formally recognized for her completion of more than 1,000 pro bono hours. 

While in law school, she clerked with the Civil Rights Division of the U.S. Department of 

Justice. She earned her B.A. in Political Science summa cum laude at Abilene Christian 

University. She is a member of the Board of Visitors of Abilene Christian University and 

was named the 2009 ACU Young Alumnus of the Year for her work defending religious 

freedom.