Recently the Department of Health and Human Services announced it was creating a new division within its Office of Civil Rights to handle complaints from health-care workers who believe they have faced religious discrimination. Its aim is to protect people who refuse to perform certain medical procedures that conflict with their religious commitments, such as abortions, sterilization or assisted suicide.
Faced with accusations that this new enforcement initiative would undermine civil rights protections for women and LGBT people who seek medical care, OCR Director Roger Severino responded that religious liberty was just as much a concern for his agency as protections for racial minorities, women and gays and lesbians. "They're all civil rights," he insisted. "This is a package of civil rights."
The HHS initiative is part of a phenomenon with a long history: Conservatives oppose new civil rights claims or try to roll back existing ones by using civil rights rhetoric and tools. They claim that measures aimed at combating discrimination against racial minorities, women and LBGT groups result in new forms of discrimination against whites, men and religious conservatives. They fight civil rights with civil
rights. Defenders of segregation in the 1960s attacked anti-discrimination laws because they infringed the civil rights of business owners to control their property and select their associates. During his 1968 presidential campaign, Richard Nixon advanced his "law-and-order" agenda by declaring that "the first civil right of every American is to be free from domestic violence"--an assertion widely understood as criticism of black urban unrest. After Roe v. Wade, conservatives attacked the right to abortion as a violation of the civil rights of the unborn.
During the Reagan administration, Justice Department lawyers urged narrow reading of civil rights laws and Warren court-era civil rights rulings. They insisted they were not rejecting civil rights but were advancing a truer vision of civil rights, one grounded in the principle of a "colorblind" Constitution. When opponents of affirmative action organized their successful public referendum campaign to ban racial preferences in California, they labeled their effort the Civil Rights Initiative.
So we've seen this play out before.
Why have conservatives so eagerly embraced--critics say misappropriated--the civil rights label? Two reasons stand out: one deals with issue framing, the other with institutions.
The civil rights movement succeeded in making the label a valuable commodity, a morally unassailable position claimed by proponents of causes across the ideological spectrum. Americans today regularly deploy the label as a way to legitimize their causes, to assert that they are victims of discrimination that the law should protect against. The fact that the proponents of this new HHS "conscience" policy have chosen this frame reflects its power.
The other reason conservatives are pushing religious liberty as a civil rights issue has to do with the institutionalization of civil rights. Note that this policy is coming from a federal civil rights office.
The first federal department to include a civil rights branch was the Justice Department, which added a civil rights section in 1939. (Initially called the Civil Liberties Unit, it was renamed in 1941.) The Civil Rights Act of 1957 expanded the section into a division and also created the U.S. Commission on Civil Rights.
In the 1960s, other federal departments added their own civil rights arms. These agencies were a major advance in the expanding commitment of the federal government to protect against racial discrimination. But this achievement came with a downside for liberals.
Federal civil rights agencies are an integral part of the administrative state that each president commands. In defining the policies these agencies pursue, each new administration unavoidably crafts its own definition of civil rights. And when conservative presidents take office, they declare conservative policy to be civil rights policy.
How can liberals counter the HHS initiative? They will surely try to argue that these religious liberty claims are not issues of civil rights. Liberals have already warned against being "fooled" by this conservative talk of civil rights. This is a matter of "religious objections" versus the "rights of individuals," insists Louise Melling, deputy legal director for the American Civil Liberties Union. Religious liberty is not "a crucial civil right," liberals claim, and thus federal civil rights agencies should not be prioritizing them.
But history shows that simply defending their conception of civil rights will not be enough if liberals want to push back against this new conservative campaign.
The power of the civil rights label is that it is a relatively open concept, with a meaning that evolves over time as different groups convince their fellow Americans that their rights claims too belong under its protective umbrella. Since the birth moment of the American concept of civil rights in the Reconstruction era, people have insisted that certain claims are "not civil rights." But in the end, the boundaries of the category have proven quite porous and ever-expanding.
Nonetheless, a debate over what is and what is not a civil right can provide a valuable way to struggle with these issues. This is not because the category has some clear, essential definition. Too often liberals tend to assert that civil rights means one thing, but not another, without actually developing a rationale for why it is so. They think certain groups deserve civil rights protections, and they define obstacles to that end as something other than civil rights.
Instead of simply adopting this reflexive posture, the current debate should encourage all of us--liberals and conservatives alike--to consider why generations of Americans have struggled to secure legal protections for groups that have been systematically marginalized and disadvantaged. It should encourage us to consider why rights claims of majorities or those with relatively more privileges and opportunities have been narrowed or simply rejected as incompatible with a fair and just society.
This is a powerful lesson of the history of civil rights in America. And these are terms that should determine the outcome of this latest debate over the meaning of civil rights.
Christopher W. Schmidt teaches at Chicago-Kent College of Law, is a faculty fellow at the American Bar Foundation, and author of the forthcoming The Sit-Ins: Protest and Legal Change in the Civil Rights Era.
Editorial on 02/04/2018