Has the Trump Administration lost its mind? The White House has re-nominated lesbian activist Chai Feldblum to a seat on the federal Equal Employment Opportunity Commission, the powerful federal agency to which President Obama appointed her in 2010.
This is not just another faceless federal agency. As Roger Clegg explained earlier this year, “The EEOC enforces all the private sector anti-discrimination employment laws, so this is a big deal.”
Feldblum has been a leading advocate for LGBT rights. Her official EEOC biography states that she “has also worked to advance lesbian, gay, bisexual and transgender rights and was one of the drafters of the original Employment Nondiscrimination Act.”
If you’ve never heard of Chai Feldblum, check out the Feldblum section of Maggie Gallagher’s prescient 2006 Weekly Standard piece about the coming conflict between religious liberty and same-sex marriage. This piece is over 11 years old, and it has proved prophetic. Take a look at this passage, and you’ll see what I mean:
Reading through these and the other scholars’ papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead–perhaps because they tended to find it “inconceivable,” as Doug Kmiec of Pepperdine law school put it, that “a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage.” That’s a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don’t arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a “long way” from equating orientation with race in the law.
By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that’s pretty close to the world in which they live now.
Kmiec and Laycock were wrong, as we are now discovering and will continue to have made clear to us. Anyone who believes that same-sex marriage has no effect on religious liberty ought to read that report. Here is the section in which Gallagher reports on her Feldblum interview:
Of all the scholars who attended, perhaps the most surprising is Chai Feldblum. She is a Georgetown law professor who is highly sought after on civil rights issues, especially gay civil rights. She has drafted many federal bills to prohibit orientation discrimination and innumerable amicus briefs in constitutional cases seeking equality for gay people. I ask her why she decided to make time for a conference on the impact of same-sex marriage on religious liberty.
“Not because I was caught up in the panic,” she laughs. She’d been thinking through the moral implications of nondiscrimination rules in the law, a lonely undertaking for a gay rights advocate. “Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad,” Feldblum points out. In employment law, for instance, “we allow discrimination against people who sexually abuse children, and we don’t say ‘the only question is can they type’ even if they can type really quickly.”
To get to the point where the law prohibits discrimination, Feldblum says, “there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn’t tell you what you can do. There has to be enough outrage to bypass that basic default mode in America. Unlike some of my compatriots in the gay rights movement, I think we advance the cause of gay equality if we make clear there are moral assessments that underlie antidiscrimination laws.”
But there was a second reason Feldblum made time for this particular conference. She was raised an Orthodox Jew. She wanted to demonstrate respect for religious people and their concerns, to show that the gay community is not monolithic in this regard.
“It seemed to me the height of disingenuousness, absurdity, and indeed disrespect to tell someone it is okay to ‘be’ gay, but not necessarily okay to engage in gay sex. What do they think being gay means?” she writes in her Becket paper. “I have the same reaction to courts and legislatures that blithely assume a religious person can easily disengage her religious belief and self-identity from her religious practice and religious behavior. What do they think being religious means?”
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.” [Emphasis mine — RD]
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.”
You’ll want to read the entire story.
Why would President Trump want to retain on the EEOC — a very powerful federal agency — a commissioner who is strongly opposed to what purports to be his view on religious liberty? It is shocking. This isn’t even a close call.