Dec. 21, 2018
I found it interesting that Chai Feldblum saw fit to respond to Everett Piper’s op-ed on the “Fairness for All” proposal, and to deny that her position is “that LGBT rights must always prevail, no matter what.” Her summary statement does sound more generous to religious liberty than other things she’s been quoted as saying in the past:
I believe there are some situations in which the rights of religious liberty for organizations who believe homosexuality is sinful will conflict with and should prevail over the rights of LGBT people who might experience discrimination at the hands of such religious organizations.
But what are some examples of those “situations?” And how does she define “religious organizations?” She never says.
I don’t doubt that Feldblum, in her concern for “religious pluralism,” would probably say pastors should not be forced to perform same-sex weddings, and churches should not be forced to hire pastors who identify as homosexual. But do “religious organizations” include anything other than churches, synagogues, and mosques? It would be nice to know.
Throughout her op-ed, she mentions only “religious organizations.” She does not talk about protecting the rights of profit-making organizations (e.g., Masterpiece Cakeshop), nor about the rights of religious individuals (e.g., Fire Chief Kelvin Cochran). My guess is that her concern for the “rights of religious liberty” simply does not extend to them.
I carefully analyzed her position in our paper opposing her renomination to the EEOC a year ago. Here is an excerpt:
Feldblum was best known to conservatives, however, for her blunt statements discounting the idea that the free exercise of religion should ever be allowed to trump “rights” asserted by those who identify as homosexual.
The Becket Fund for Religious Liberty held a conference in December 2005 regarding potential conflicts between same-sex marriage and religious liberty. Feldblum participated, and Maggie Gallagher drew attention to Feldblum’s views in a 2006 Weekly Standard article.
“Sexual liberty should win in most cases,” Feldblum declared. “There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win . . .” In fact, she declared, “I’m having a hard time coming up with any case in which religious liberty should win.”
Feldblum understands what this means for religious believers. In a related article , she declared that “we are in a zero-sum game: a gain for one side necessarily entails a corresponding loss for the other side,” adding later, “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.” Indeed, she openly endorses government coercion of the believer: “To the extent that forced compliance with an equality mandate burdened an individual’s belief liberty, my argument . . . is that such a burden is likely to be justified.”
Feldblum admitted that the heavy-handed approach she favors goes well beyond Supreme Court precedent, noting that:
"[T]he Supreme Court, for the moment, has come down clearly on the side that the liberty protected by the substantive Due Process Clause is solely a negative liberty. . . . But in many circumstances, the only way to achieve real liberty for some individuals will be for the government to take affirmative steps to bring about that liberty—even if such steps might then interfere with the liberty of others."
Feldblum deserves some credit for describing more accurately than most the moral concerns that social conservatives have regarding homosexual conduct, and for at least acknowledging the reality of the conflict between “gay rights” and religious liberty. And she has been gracious to participate in events like the Becket conference, and even in a 2008 panel discussion held at Family Research Council.
However, this should not be allowed to mask the extremism of her positions. After she wrote that the courts should essentially ignore the Free Exercise clause of the First Amendment (recognizing only a more nebulous “belief liberty” instead), she admitted that “my suggestions are radical.”
And more recently, since she has been on the EEOC, she has also expressed skepticism of religious exemptions:
Feldblum has continued to state her view that religious liberty exemptions should be extremely narrow. For example, at an “LGBT Summit” sponsored by The Atlantic magazine in December 2015, she participated in a panel discussion with David Boaz of the Cato Institute, who identifies both as gay and 5 as a libertarian (and who supported the redefinition of marriage). The issue of private businesses impacted by non-discrimination laws, such as those in the wedding industry, was discussed, as Reason magazine reported:
Boaz stated: “I think we have millions of small businesses, and I would like to leave the heavy hand of government out of their relationships with their customers and their employees as much as possible.”
. . . Feldblum, however, dismissed the idea that religious beliefs could ever justify discrimination. “When someone has not been educated [about tolerance of LGBT individuals] and wants to keep discriminating,” she said, “there is only one federal government, there is only one state government, one local government that can say: We will not tolerate this in our society.”
Feldblum then referred to an EEOC case against a funeral home charged with “gender identity” discrimination:
With a religious exemption to non-discrimination laws, the funeral home owner “could say, ‘well, actually, we’re religiously based,’” said Feldblum, raising her arms high and rolling her eyes. “It’s a funeral home! We do not want to allow that and the only thing that can protect us is a law that doesn’t have [a religious] exemption.”
LGBT activists like Feldblum are unlikely to accept any vision of religious liberty that extends beyond the four walls of a church’s sanctuary. But the “free exercise” of religion extends not just to churches but to individuals, and in every sphere of endeavor, including the public square and marketplace.