[Congressional Record (Bound Edition), Volume 162 (2016), Part 9]
[Senate]
[Pages 12863-12864]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           RELIGIOUS LIBERTY

  Mr. SASSE. Mr. President, I rise today to address the recently 
released new report of the U.S. Commission on Civil Rights entitled 
``Peaceful Coexistence: Reconciling Nondiscrimination Principles with 
Civil Liberties.''
  The Commission on Civil Rights has a glorious and profound history in 
our Nation. Founded in 1957, the Commission initially had the grand 
cause of ending the horror and the tragedy of Jim Crow laws in our 
Nation.
  Sadly, however, the Commission's focus has recently strayed, and its 
new report poses profound threats to the historic American 
understanding of our First Amendment. In the Commission's just released 
report, the majority reveals a disturbingly low view of our first 
freedoms. It actually puts the term ``religious liberty'' in scare 
quotes, and it says that religious liberty must now be subservient to 
other values.
  Here is a snapshot of the majority's position from this new report, 
in their own words:

       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.

  Additionally, the Commission's Chair, Martin Castro noted:

       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.

  But are the phrases ``religious liberty'' and ``religious freedom'' 
simply hypocritical code words? Are they shields for phobias, 
intolerances, and power struggles?
  Of course, they are not.
  Religious liberty is far more beautiful, far more profound, and far 
more human than that. Our national identity is actually based on this 
very premise.
  The American founding was unbelievably bold. Our Founders were making 
the somewhat arrogant claim, almost, that almost everyone in the 
history of the world had actually been wrong about the nature of 
government and about the nature of human rights.
  Our country's Founders believed that God created people with dignity 
and that we have our rights via nature. Government is our shared 
project to secure those rights. Government does not come first. 
Government is not the author or the source of our rights, and this 
conviction matters for today's conversations. In fact, this conviction 
is our Constitution.
  No King, no Congress, no Senate, no Commission gives our people their 
rights, for government is not the author or source of rights. 
Government is a tool to secure our rights.
  We have rights because we are people, created with dignity. 
Government is that shared project to secure those rights that we have 
because we are people created with dignity. So we the people are the 
ones who actually give the government limited authorities. It is not 
the government that is condescending to grant us some rights.
  Gail Heriot, who is a member of the Commission, offered a compelling 
statement and a healthy rebuttal to the majority's very low view of 
religious freedom. Thankfully, Ms. Heriot indicated her opposition to 
the runaway chairman's bizarre dismissal of religious freedom. She 
considered asking him to withdraw it, but then she decided against it, 
and here is her reason why. She decided:

       It might be better for Christians, people of faith 
     generally, and advocates of limited government to know and 
     understand where they stand with him--

  Where they stand with this chairman. Ms. Heriot notes--and I am going 
to quote her here at length:

       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 agree on--and perhaps no one 
     ever will. Instead, we have been left to resolve these issues 
     that arise on a more case-by-case basis.

  While she does not aim to create that framework in her remarks, she 
continues by saying:

       The bigger and more complex government becomes, the more 
     conflicts between religious conscience and the duty to comply 
     with 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

[[Page 12864]]

     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 Exemption to Title VII in order to limit 
     ordinations to men (and to Roman Catholics), because there 
     was no Title VII.

  What she is talking about here is about the ways that expanding 
government tends to crowd out civil society and mediating institutions. 
She is talking about the ways that power drives out persuasion. She is 
talking about the ways that law crowds out neighborliness.
  She continues:

       The second [ . . . ] comment I will 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 to 
     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 
     rolls on. People of faith should not allow themselves to 
     become just another special interest group that needs to be 
     appeased before the next government expansion is allowed to 
     proceed.

  Here, she is talking people of faith.

       They have an interest in ensuring the health of the many 
     institutions of our civil society that act as counterweights 
     to the state--including not just the Church itself, but also 
     the family, the free press, small business and others. They 
     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 as well.

  Are people of faith simply another special interest group that should 
be appeased? I suggest--along with Ms. Heriot and, frankly, far more 
importantly, with all of the Founders of this Nation--they are not. 
People of faith and people of no faith at all, people of conscience, 
are simply exercising their humanity, and they do not need the 
government's permission to do so.
  The Commission's report is titled ``Peaceful Coexistence.'' Who wants 
to disagree with a title like that? But this profession of peaceful 
coexistence must never quietly euthanize religious liberty just because 
Washington lawyers and bureaucrats find it convenient and orderly to do 
so. It must never be used to chip away at our most fundamental freedom, 
for the First Amendment is a cluster of freedoms: freedom of religion, 
the press, assembly, and speech. They all must go together. It must 
never undermine the essence of what it means to be human. It must never 
erode the American creed, which should be uniting us. We can and we 
should disagree peaceably. We should argue and debate and seek to 
persuade. We should jealously together be seeking to defend every right 
of conscience and self-expression.
  In closing, I ask my colleagues from both parties--for this should 
not be a partisan issue, as the First Amendment is not the domain of 
any political party--to consider the dangerous implications of this new 
report.
  To my progressive friends, I invite you to become liberals again in 
your understanding of religious liberty and its merits.
  To my conservative friends, let's cheerfully celebrate all Americans' 
freedoms. Let's work to kindly dismantle the pernicious myth that 
somehow your freedoms are merely a cover for fear or hate or some other 
phobia. These freedoms are too important to relinquish. They are the 
essence of what we share together as Americans.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. GARDNER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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