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Bostock & SOGI: A Christian Waterloo

Top religious liberty lawyer: conservative Christians have been massively defeated
Supreme Court Issues Orders And Releases Opinions

I just got off the phone with a religious liberty lawyer, a Christian man whose name you’ve never heard, but who is deeply involved in the legal fight and in political strategizing, at a very senior level. I can’t say more than that, to protect his identity. He reached out to me in part because he wanted to tell me that The Benedict Option was right on target, and how crystal-clear that has become this week, with the Bostock ruling. He told me that he and his colleagues were commiserating after Bostock about the political realities facing religious conservatives.

They concluded that the political means to build the kind of world that my friend Sohrab Ahmari would like to see simply does not exist now. The Lawyer says that it’s looking like the only thing open to religious conservatives is the Benedict Option: building viable, resilient communities, even amid persecution, and making sure that we survive this new Dark Age.

I took notes on our conversation, and am publishing them with the Lawyer’s permission.

The Lawyer started by saying he read Andrew T. Walker’s piece in Christianity Today (“Bostock Is As Bad As You Think“). From that piece:

In an interview from last year with National Review, noted religious liberty scholar Douglas Laycock of the University of Virginia said that the Equality Act

goes very far to stamp out religious exemptions… . It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.

For now, the Religious Freedom Restoration Act remains intact, but its provisions are one election away from passage if Democrats take control of the Senate. Even still, that its provisions remain intact is no sure proof that it will give relief to those who appeal to it in future cases.

The Lawyer said Walker’s piece is correct, but that “RFRA is the least of my worries right now.”

What worries you most right now? I asked.

“The thing that worries me the most is Bob Jones and the application of that precedent not to churches, but to religious colleges and seminaries,” he said.

He’s talking about the 1983 Supreme Court ruling against Bob Jones University, the fundamentalist Christian school that at the time prohibited interracial dating, claiming a First Amendment religious liberty right to do so. The IRS revoked the school’s tax-exempt status for violating the Civil Rights Act. This was upheld by SCOTUS, which ruled that:

“Government has a fundamental, overriding interest in eradicating racial discrimination in education . . . which substantially outweighs whatever burden denial of tax benefits places on [the University’s] exercise of their religious beliefs.”

The ruling made clear that it only applied to religious schools, not to churches.

On the phone today, the Lawyer told me that after Bostock, gay rights advocates have a clear shot at punishing religious schools, seminaries, and other religious institutions by taking away their tax-exempt status on discrimination grounds.

“All that has to happen is for a Democratic administration to gain control of the IRS, then move to strip the tax status of an institution on SOGI grounds,” he said. SOGI is short for “sexual orientation and gender identity.”

The only possible way he’s wrong, figures the Lawyer, is that the word “race” is written into all the titles of the Civil Rights Act; “sex” — which was expanded by Bostock to include “sexual orientation and gender identity” as well — is not. But the idea that the courts going forward will honor that narrow reading is far-fetched, he said, “Based on what we just saw Gorsuch write, I don’t know how we conclude otherwise.”

I asked him what he thought of David French’s counsel against Christian pessimism, in French’s  “God Save America From Fearful Christians” piece earlier this week.

“We’re going to know if he’s right in about two weeks, when the term is finished,” said the Lawyer.

He means that the Supreme Court will soon publish its rulings in three key cases of importance to social and religious conservatives. One is a case that will decide on the limits of a religious school’s right to discriminate in hiring based on the “ministerial exception” in the Civil Rights Act. Another is about the fate of Blaine Amendments, relics of 19th century anti-Catholic sentiment, passed to prevent states de facto from having to give money to Catholic schools. The case now before the court has to do with whether or not state scholarship money can be used at religious schools in states that still have Blaine Amendments on the book. The third is about a Louisiana law that restricts abortion access. 

“My guess is that it’s going to be a mixed bag,” said the Lawyer. He said the rumor he’s hearing is that pro-lifers are going to lose the Louisiana abortion case, that the Blaine Amendments will be overturned, and that there will be an “incremental victory” on the ministerial exception case.

The Lawyer sounded extremely skeptical of Christian optimism on the legal and political front, saying, “That ‘it’s not going to happen’ view. hasn’t served us well. A lot of things that we thought would never really happen are happening right now.”

The Lawyer said that the Bostock decision is more consequential for religious liberty than Obergefell, though of course the two are related. “It’s more significant because the ways the tentacles of the regulatory state are going to reach inside our lives are much more far-reaching than whether or not two gay men can get married,” he said.

The Lawyer brought up Sohrab Ahmari’s well-known belief that now is the time for social and religious conservatives to quit trying to reach a defensive accommodation within liberalism, and instead go on the offense. The Lawyer said that’s simply not realistic, not anymore. This is not defeatism; this is reality.

“Politically, I really don’t know where we go from here,” he said. “There are a lot of young people saying we need a big political operation to fight this. I’m old enough to remember when [big Christian political operations] existed.  It all failed. That’s why we’re here.”

The Lawyer emphasized that the thing I pointed out on this blog yesterday (see “The Thin Red Line”) — that only three GOP senators showed up on the Senate floor to argue against unanimous approval of the Equality Act — is a shocking sign of the political weakness of Christians on SOGI issues.

“We’re not seeing the facts for what they are,” he said, referring to social conservatives.

He said that in Washington now, a lot of Republican staffers on the Hill are writing off the silence of Senators and Congressman about SOGI and religious liberty as the natural effect of an election year. That is, you wouldn’t expect them to talk up SOGI controversy on the campaign trail. In the view of the Lawyer, this is a Republican rationalization for cowardice.

“Do you think that this is how the pro-life movement or the gun rights movement  would see it?” he asked. “They would salivate for a chance to talk about their issue, and defend it It’s your base! You stand up for what you believe in an election year.”

On the other hand, I said to the Lawyer, people are saying that we didn’t see more senators coming to the floor to argue against the Equality Act because that wasn’t necessary. If you only needed one senator to derail the voice vote procedural move, why send an army of them in to make speeches? So goes the reasoning. I told the Lawyer that I didn’t buy it, that I think the fact that most Republican lawmakers don’t want to talk about this stuff shows that they’re ashamed of traditional Christian teaching on SOGI, and don’t want to be seen defending it.

The Lawyer agreed.

“This just shows how bad things are politically,” he sighed. “We’re hosed. Absent a Great Awakening, these are the political materials we have to work with. Given the resources that we have, we have to figure out how we’re going to survive to fight another day.”

What he means, he explained, is that the Benedict Option claim that conservative Christians have lost the fight for religious liberty in SOGI cases is true, and that the political and legal efforts of Christians going forward have to take this grim reality into consideration. The only conservative Christians who ought to be optimistic after Bostock, he said, are those in Washington who run the direct mail fundraising operations of Christian lobbying organizations.

What I took the Lawyer to be saying is that no matter what the direct mail fundraisers say, we conservative Christians really have come to the end of the line on fighting the SOGI legal and political front in the culture war.

“We have been trying to hold the line protecting Christian businesses, and it  has been a really important effort,” he said. “But [post-Bostock], the world is really different for those Christian business owners, and there’s no getting that genie back in the bottle. It is worth us asking what are we actually trying to achieve [legally and politically] from this point forward. We really need to think about how we can preserve a place for ourselves in this new order.”

The answer, he said, has to be to figure out a way to protect our institutions and “our ability to construct those Benedictine walls.” Reflecting on the lack of a motivated political constituency, he said “I don’t even know if we can even do that now.”

Do ordinary Christians even understand what’s at stake? I asked.

“No, they probably don’t,” he said. “These times are waking a lot of us up, though. I think we can have a range of responses. We can be alarmed, and get angry, and take our last stand. But there’s another way for us to consider that helps us to fortify our own faith, and be prepared to endure what’s coming. Because it’s going to get really bad. We’re going to see things like people being cast out of their professions.”

The Lawyer spoke for a moment about his own specific situation, and how his personal and professional life may soon undergo a tremendous upheaval because of this cultural revolution. He foresees the real possibility of being disbarred because of his religious faith, and having to move to a part of the United States where he can still practice law — if there are any places left, that is.

This is not just some guy on the Internet. This is one of the most well-informed religious liberty lawyers in the country. He is reading the handwriting on the wall, and for the first time ever considering that it may be impossible to work in his profession in the United States of America, because he is a Christian.

After we finished the call, I went back to The Benedict Option to read the chapter on work in the new post-Christian order. This book came out three years ago. This passage, I think, is why the Lawyer called me today to say that after Bostock, the book has been vindicated as prophetic:

I have talked to a number of Christians in fields as diverse as law, banking, and education, who face increasing pressure within their corporations and institutions to publicly declare themselves “allies” of LGBT colleagues. In some instances, employees are given the opportunity to wear special badges advertising their allyship. Naturally if one doesn’t wear the badge, she is likely to face questions from co-workers, and even shunning.

These workers fear that this is soon going to serve as a de facto loyalty oath for Christian employees— and if they don’t sign it, so to speak, it will mean the end of their jobs, and possibly even their careers. To sign the oath, they believe, would be the modern equivalent of burning a pinch of incense before a statue of Caesar.

It will be impossible in most places to get licenses to work without affirming sexual diversity dogma. For example, in 2016, the American Bar Association voted to add an “anti-harassment” rule to its Model Code of Conduct, one that if adopted by state bars would make it simply discussing issues having to do with homosexuality (among other things) impossible without risking professional sanction—unless one takes the progressive side of the argument.

Along those lines, it will be very difficult to have open dialogue in many workplaces without putting oneself in danger. One Christian professor on a secular university’s science faculty declined to answer a question I had about the biology of homosexuality, out of fear that anything he said, no matter how
innocuous and fact-based, could get him brought up on charges within his university, as well as attacked by social media mobs. Everyone working for a major corporation will be frog-marched through “diversity and inclusion” training, and will face pressure not simply to tolerate LGBT coworkers, but to affirm their sexuality and gender identity.

Plus, companies that don’t abide by state and federal anti-discrimination statutes covering LGBTs will be not be able to receive government contracts. In fact, according to one religious liberty litigator who has had to defend clients against an exasperating array of anti-discrimination lawsuits, the only thing standing between an employer or employee and a court action is the imagination of LGBT plaintiffs and their lawyers.

“We are all vulnerable to such targeting,” he said.

Says a religious liberty lawyer, “There is no looming resolution to these conflicts; no plateau that we’re about to reach. Only intensification. It’s a train that won’t stop so long as there is momentum and track.”

David Gushee, a well-known Evangelical ethicist who holds an aggressively progressive stance on gay issues, published a column in 2016 noting that the middle ground is fast disappearing on the question of whether or not discrimination against gays and lesbians for religious reasons should be tolerated.
“Neutrality is not an option,” he wrote. “Neither is polite half-acceptance. Nor is avoiding the subject. Hide as you might, the issue will come and find you.”

Public school teachers, college professors, doctors, and lawyers will all face tremendous pressure to capitulate to this ideology as a condition of employment. So will psychologists, social workers, and all in the “helping” professions. And, of course, florists, photographers, backers, and all businesses that are subject to public accommodation laws.

Christian students and their parents must take this into careful consideration when deciding on a field of study in college and professional school. A nationally prominent physician who is also a devout Christian tells me he discourages his children from following in his footsteps. Doctors now and in the near future will be dealing with issues related to sex, sexuality, and gender identity, but also to abortion and euthanasia. “Patient autonomy” and non-discrimination are the principles that trump all conscience considerations, and physicians are expected to fall in line.

“If they make compliance a matter of licensure, there will be nowhere to hide,” said this physician. “And then what do you do if you’re $300,000 in debt from medical school, and have a family with three kids and a sick parent? Tough call, because there aren’t too many parishes or church communities who would jump in and help.”

In past eras, religious minorities have found themselves locked out of certain professions. In medieval times, for example, anti-Semitic bigotry in Europe prevented Jews from participating in many trades
and professions, shunting them off to do marginal work Christians did not want to do. Jews entered banking, for example, because usury was considered sinful by medieval Christianity, and kept off-limits to Christians.

Similarly, orthodox Christians in the emerging era will need to adapt to an era of hostility. Blacklisting will be real.

Oh, one more thing. Before we finished the conversation, I asked him if he had heard anything about the book I have coming out next, Live Not By LiesNo, he said, he had not.

“Well, I hate to tell you this, but it’s even more pessimistic than The Benedict Option.”

He laughed out loud. So did I. Hey, the humor may be black, but after the week this man has had, I got the impression he was grateful for any laugh at all.

“I think it’s realistic, though, but also hopeful, in a sense,” I explained. “I spent a lot of time talking to Christians who lived through much worse than what we are going to have to deal with, and they came through it with their faith and their integrity intact. The book is about advice from them about what to do. We’re not going to have gulags, but then, the people who hate us are not going to need gulags to get what they want.”

“No, they’re not,” he said. The Lawyer told me about a friend of his, an émigré from a formerly communist country in Eastern Europe, who has shared with him some of the things he had to endure living there.

“You should talk to him,” I advised. “What these Christians have to say to us today is precious wisdom.”



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