Chai Feldblum On Sexual Liberty vs. Religious Liberty

Chai Feldblum On Sexual Liberty vs. Religious Liberty

gay marriageSome interesting information about President Obama’s pick for EEOC commissioner, Chai Feldblum, is coming out. She’s been added to the “smear list” of the “right wing blast machine” who are committing the unpardonable offense of quoting her accurately. Just like we did Van Jones. Hey, is it our fault if what you say is wildly at odds with what all us mouth-breathing, snake-handling, inbred red-staters believe?

For example, “we want to revolutionize societal norms” and “gay sex is a moral good.” (video here)

You know, even the most moderate of bible thumpers will generally have a problem with that. Sorry, Pundit Spice, but we’d like to agree to disagree on that one.

Oh, wait. We can’t simply agree to disagree. Because Chai Feldblum, nominee for EEOC commissioner, believes that sexual liberty should trump religious liberty.

To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: “When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.” Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.

“You have to stop, think, and justify the burden each time,” says Feldblum. She pauses. “Respect doesn’t mean that the religious person should prevail in the right to discriminate–it just means demonstrating a respectful awareness of the religious position.”

Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”

She pauses over cases like the one at Tufts University, one of many current legal battles in which a Christian group is fighting for the right to limit its leaders to people who subscribe to its particular vision of Christianity. She’s uncertain about Catholic Charities of Boston, too: “I do not know the details of that case,” she told me. “I do believe a state should be permitted to withhold tax exempt status, as in the Bob Jones case, from a group that is clearly contrary to the state’s policy. But to go further and say to a group that it is not permitted to engage in a particular type of work, such as adoptions, unless it also does adoptions for gay couples, that’s a heavier hand from the state. And I would hope we could have a dialogue about this and not just accusations of bad faith from either side.”

But the bottom line for Feldblum is: “Sexual liberty should win in most cases. There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner.”

I appreciate that she is willing to consider the rights of religious folk before she dismisses them. But to “pause” over the right of a any group to limit its leadership to like-minded people is radical. If I start the “Heterosexual Married Sex Is Better” club, don’t pat me on the head and give me “respectful awareness” while telling me that I have to let a gay person who absolutely does not agree with the reason the club was formed in the first place be in charge. If you disagree with the group, don’t join the group. If you disagree with the group, don’t attempt to lead the group. Gather some people you agree with and start your own group.

Taking away the tax exempt status of Catholic Charities of Boston is – even if you don’t agree – an argument worth having. Telling them they cannot carry on with their mission without violating their religious principles is not.

Ms. Feldblum explains that she does feel empathy when the rights of religious people are subordinated to that of LGBT people*, but it must, and will, happen. She intends to make it happen. She writes:

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?

I have the same reaction to those who blithely assume a religious person can easily disengage her religious belief and selfidentity from her religious practice and religious behavior. What do they think being religious means? Of course, at some basic level, religion is about a set of beliefs. But for many religious people across many religious denominations (Catholic, Protestant, Jewish and Muslim—to note just the ones I have some personal understanding of), the day-to-day practice of one’s religion is an essential way of bringing meaning to such beliefs.

It’s an interesting paper. Though it weighs in at 55 pages, it’s a fast read, well written, and well worth your time because these are arguments worth having. Rather than screech “H8ters!” she actually does understand and acknowledge the points the other side is making, and civilly disagrees.

On Rumsfeld v. FAIR – where law schools were required to permit military recruiters on campus in spite of their distaste for “Don’t Ask, Don’t Tell,” she writes

Religious employers who do not want to provide health benefits to same-sex couples and religious schools who do not want to provide funding for gay rights groups might view themselves as far removed from law schools that do not wish to assist military recruiters who discriminate against gay law students. But the parallels between the two groups are stark: In each case, an individual or an institution experiences the coerced conduct (the “equality mandate”) as burdening its beliefs. And in each case, the individual or institution runs the risk that the State and the courts will simply dismiss its experience of burden as not real.

On the other hand, schools could just choose not to take government funding, just as churches who desire that their pastors be permitted to endorse political candidates can choose not to apply for 501c3 status.

In example after example she advocates for the right of LGBT people to make religious people conduct business in a way that they feel violates their core principles. It’s a touchy issue. I was happy to build websites for gay clients when it was for restaurants, real estate, and other businesses that had nothing to do with sex – but when asked to submit a quote to build a gay dating site, I referred the caller to another developer who was glad to bid for the project. Shall the law side with Ms. Feldblum’s dignity or with my religious freedom?

It may be cold comfort to those with strongly held beliefs regarding the immorality and sinfulness of homosexuality that I argue that the burden on their belief liberty should be acknowledged.

… Ensuring that LGBT people can live honestly and safely in all aspects of their social lives requires that society set a baseline of non-discrimination on the grounds of sexual orientation and gender
identity. If individual business owners, service providers and employers could easily exempt themselves from such laws by making credible claims that their belief liberty is burdened by the
law, LGBT people would remain constantly vulnerable to surprise discrimination. 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.

Thus, for all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried straight couples and all gay couples, this is
a point where I believe the “zero sum” nature of the game inevitably comes into play. And, in making the decision in this zero sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.

So to sum up, the cure for her deep, intangible hurt is not to go freely associate with other people, but to force others to do what she wants. Then she follows that up with two interesting exceptions. As I said, read the paper. But the bottom line here is that she’s already made her decision; this is how she will rule when appointed to the Equal Employment Opportunity Commission.



*Yes, I’m well aware that many gay people do hold devout religious beliefs of all kinds. I’m using the terminolgy Ms. Feldblum uses in her paper.

Crossposted to Hot Air’s Greenroom.


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