‘Fairness For All’: Smart Politics, Or A Sellout?
Yesterday, World magazine published a big scoop, reporting that two major Evangelical Christian organizations backed seeking a compromise between Sexual Orientation and Gender Identity (SOGI) law supporters and those defending religious liberty. The “Fairness For All” idea is that these Evangelicals would support adding SOGI protections to federal antidiscrimination law in exchange for religious liberty guarantees written into the same law. Excerpt:
The boards of the Council for Christian Colleges and Universities (CCCU) and the National Association of Evangelicals (NAE) quietly passed similar motions in recent months, advancing a multiyear effort they say is necessary to preserve religious freedom.
“As Christian higher educators, we are increasingly persuaded that the most viable political strategy is for comprehensive religious freedom protections to be combined with explicit support for basic human rights for members of the LGBT community,” Houghton College President Shirley Mullen—one of several people who sit on both boards—wrote in a position paper provided to NAE board members.
CCCU President Shirley Hoogstra announced her board’s vote to member presidents in August, but did not publicly announce the move.
The NAE motion—obtained by WORLD—unanimously passed in October. It’s titled “Fairness for All” and calls on Congress to consider federal legislation consistent with three principles:
• We believe that God created human beings in his image as male or female and that sexual relations be reserved for the marriage of one man and one woman.
• We support long-standing civil rights laws and First Amendment guarantees that protect free religious exercise.
• No one should face violence, harassment, or unjust discrimination on the basis of sex, sexual orientation, or gender identity.
Read the whole thing. It’s important.
Some of my conservative friends — Catholic Ryan T. Anderson, and Evangelicals Denny Burk, Andrew T. Walker, and Russell Moore — have already criticized the proposal (see here) as surrendering too much. I’m not sure what to think. This morning, I had a conversation with a prominent conservative Evangelical political strategist who works at both the national and state levels. He supports the compromise. I have his permission to relate the substance of our conversation to you. For clarity’s sake, I will call him Smith.
Smith told me that most readers of this blog will likely not be aware that many of the religious liberty protections we take for granted are not constitutional, but statutory.
“It’s not the courts that are necessarily our protector, but because we have managed to succeed with the political process,” he said.
Therefore, defending religious freedom has to involve at least a legislative component. Relying entirely on judges is not going to be enough.
A second important point: “People disagree deeply on the meaning of human sexuality. The traditional view of sexual morality is a minority view now. It’s decisively a minority view. You’ve got to go into the conversation known that that’s true.”
I agreed with Smith that many conservative Christians overestimate the degree to which our side has lost the Sexual Revolution. We traditionalists are playing a losing hand here.
“The so-called Fairness For All project has always been about how do we protect the most religious liberty that we can in a realistic way,” Smith told me. He said that these discussion have been happening among Evangelical leaders at a very detailed level over the past three years. Those involved in the discussion have talked to LGBT leaders, as well as to Christian conservatives who do not want to yield an inch.
If pluralism is about accommodating deep difference — if conservative Evangelicals are going to ask for accommodation of difference, then they can’t turn around and say in every single case when they are asked to accommodate sexual minorities, ‘No, we will fight to the death.’ That’s not pluralism if all you’re doing is protecting your own rights and saying error has no rights when it comes to you. Pluralism has to be seen by others who disagree with you as fair.
Smith said that he and some of those involved in the Fairness For All project have been “in years of discussion with the most senior-level advocates of LGBT right at the state and federal level.” He said that those leaders are aware that the national conversation is moving strongly in their direction, but they are also aware that practicing “smashmouth” politics, and trying to get civil rights protections into law without Republican involvement, is a costly strategy. They’re having to ask themselves if they want to play this kind of hardball for another decade.
Smith said that Donald Trump’s victory in 2016 dealt a powerful blow to their hopes. LGBT activists expected a Hillary Clinton presidency, with Supreme Court justices chosen by a Democrat favorable to their cause. Now they have Gorsuch and Kavanaugh, and Justice Ginsburg aged and frail. LGBT strategists believe that the likelihood of litigating their way to preferred policy outcomes is low under this Court.
On the other hand, what do conservative Christians have to show for GOP hegemony? Said Smith:
Republicans have had absolute control of government for the last two years, and there hasn’t been any movement towards religious freedom in Congress. The Left is a lot closer to being able to legislate what it wants than we are.
I want to underscore the importance of that observation. Religious conservatives are just winding down a Congress controlled entirely by Republicans, with a president who is favorable towards religious conservatives. And yet the GOP Congress sent no religious liberty legislation to the president’s desk. Why not? Answering that question is important, but for purposes of this conversation, we religious conservatives need to come to terms with the fact that if we didn’t get anything legislatively out of these past two years, it’s not going to happen, at least not on our terms.
For their stance to be effective, the never-compromise conservatives require permanent GOP control of the legislative and executive branches. That is simply impossible — and even when it did happen, in this last Congress, it did us no good. So there is a practical reason to try something different.
What’s more, said Smith, it’s a “total fantasy” to believe that most Americans side with us religious conservatives on the issue, or that if we hold out for long enough, the issue will go away. Finally, said the strategist, it’s folly to expect that Chief Justice John Roberts will be eager and willing for the Court to decide major social policy unless he absolutely has to. He would much prefer, like Justice Scalia, to defer to the legislative branch.
Smith emphasized that for him, and for those involved on his side in the Fairness For All discussion, this is not merely a matter of political strategy. That is, it’s not a cold calculation that religious conservatives had better compromise while they can (though that’s part of it). He said there really is a question of justice within a pluralistic society that conservative Christians have to face. We may sincerely believe that homosexuality is morally wrong, but at what point does the common good require that we agree that gay people have a right to be wrong?
Especially because we are asking them to agree that we have a right to be wrong (in their eyes) too.
I pointed out to Smith that younger progressive activists are generally far more unwilling to compromise with what they take to be evil, and are therefore far more illiberal than older progressives. Why should the Left compromise with religious conservatives when the cultural wind is in their sails, and the rising generation sees compromise as a bad thing?
Smith points out that I am a cultural pessimist — true! — and that he has been involved for years with detailed discussions with gay leaders. “There are significant players in that movement that believe that these kinds of approaches are worthwhile, and worth pursuing,” Smith said. “I don’t think they’re doing it as a bad-faith stalling tactic.”
In Smith’s experience at the state level, gay rights leaders are willing to agree to some religious liberty protections if LGBT rights are part of the mix. If not, they’re going to fight it.
“There are two ways we can go on this,” he said. “Either more years of total warfare, or a genuine search for common ground. There actually is a lot more than we think.”
Smith recommended this 2017 op-ed by Biola University president Barry Corey, and California state legislator and gay rights leader Evan Low, about how they became friends after clashing over Low-sponsored legislation that would have adversely impacted conservative state colleges. Ultimately Corey — a conservative Evangelical — and Low, a gay man who represents Silicon Valley, are never going to agree on everything, but they discovered they had more common ground than they thought they did.
Smith and I talked briefly about how “dialogue” is often the first stage of conservative surrender. He said:
In my Evangelical world, when people start making moderate sounds on these issues, a lot of times they’re three years away from changing their theology on sexuality. It’s the Jen Hatmaker effect. That’s not what’s happening here.
He explained that the Evangelicals he knows are not yielding on moral theology. They’re taking a real risk, though, by meeting with gay folks and allies who think they’re bigots, and doing so knowing that some fellow conservatives are going to see them as sellouts (here is a link to an absolutely blistering rebuke of the Fairness For All Evangelicals by the Evangelical theologian Robert Gagnon).
Smith said he doesn’t consider conservative Christians who oppose the Fairness For All process to be bad people — in fact, some of the leading opponents of it are personal friends of his. He simply believes that ethically and politically, this is the right thing to do. In Smith’s view, in a pluralistic society like America 2018, do unto others as you would have them do unto you is a good rule for religious liberty advocates and gay rights supporters alike.
I’ve reached out to conservative Christian thinkers who are on record opposing Fairness For All — read about FFA here — and asked them to respond to Smith’s thoughts. I’ll update this post if any respond.
In the United States of America, people who identify as LGBT are free to live as they want. But SOGI laws, including FFA, are not about freedom—they are about coercion. SOGI laws are about forcing all Americans to embrace—and live out—certain beliefs about human sexuality. They are not about protecting the freedom of people to live as LGBT, but about coercing everyone else to support, facilitate, and endorse such actions. This is one fundamental problem in equating coercive antidiscrimination laws with permissive religious freedom laws. And imposing a bad coercive policy on everyone while exempting select faith-based institutions is anything but fairness for all.
What does this have to do with religious liberty? It is not as if there is widespread discrimination against LGBT people in public accommodations. No restaurant or business is hanging a sign that says “straights and cisgender only.” So that is not the intent of the “Equality Act.” Rather, the intent of the bill is to target the last hold-outs to the LGBT revolution—religious people. How do we know this? Because the bill takes explicit aim at religious people. From the AP report:
A provision in the bill forbids any employer or retailer from using the Religious Freedom Restoration Act, passed in 1993, to justify withholding services based on gender or sexual orientation. The law, which received bipartisan support, barred the government from interfering with the rights of religious practitioners. But more recently the law has been used to protect the rights of business owners to refuse service based on religious beliefs. In one 2014 case, the Supreme Court found that chain craft store Hobby Lobby, founded by religious evangelicals, didn’t have to provide its employees with contraception coverage for religious reasons.
The Religious Freedom Restoration Act—which used to enjoy bipartisan support—has now become the boogey man of the left. The left wants to destroy this federal law and force religious people to violate their sincerely held religious beliefs about marriage and sexuality.
For example, if this bill were to become law, Christian business owners in the wedding industry would be forced to participate in gay weddings. Christian colleges would be forced to house students according to their gender identity. The list of religious liberty violations would be virtually endless.
Note well: Neither NAE nor CCCU support the Equality Act! FFA is something different. I quoted Denny on the Equality Act because he’s citing that as an example of what the Democrats really want.
Denny also tweeted below (quoting Ryan Anderson):
It’s not compromise to give & get nothing in return. The so-called “exemptions” are protections that we already have under the 1st amendment & current federal civil rights laws. What does “Fairness for All” really gain for religious liberty? Nothing, but it gives away everything. https://t.co/acHzeIlHtk
— Denny Burk (@DennyBurk) December 13, 2018
UPDATE.3: Michael Wear, a Democratic Evangelical friend of mine, has a good Twitter thread about FFA. Excerpt (here he refers to what Denny Burk does, re: the Democrats):
On the Democratic side, this has looked like the Equality Act. Legislation Speaker Pelosi says will be a top priority for the House. It is legislation that basically “addresses” religious freedom by discarding it whenever it is in tension with LGBT rights. It will pass the House.
— Michael Wear (@MichaelRWear) December 13, 2018