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Mike Lee Stands Firm For Religious Liberty

Sen. Mike Lee (R-Utah) is defending religious liberty against Trump nominee (Oxford Union screenshot)

Sen. Mike Lee, the Utah Republican, is holding up President Trump’s re-nomination of law professor Chai Feldblum to head the Equal Employment Opportunity Commission, of which she has been a member since President Obama appointed her in 2010. Lee has reason.

Vox would have you believe that it is only because Feldblum, who is a lesbian, supports LGBT rights. That’s not true. It’s because Feldblum believes that when religious liberty conflicts with gay rights, gay rights must always win. In February, Sen Lee explained his rationale. Excerpts:

If Feldblum were a typical Democrat, it might make sense to let her nomination proceed through the Senate along with her two Republican colleagues. But Feldblum is no typical Democrat. Her radical views on marriage and the appropriate use of government power place her far outside even the liberal mainstream.

Feldblum has argued that, “I, for one, am not sure marriage is a normatively good institution.” Instead of promoting marriage as the best arrangement for the emotional and economic security of families, Feldblum believes “all of us are harmed … when society fails to acknowledge the wide array of non-marital social structures.”

Feldblum even signed a manifesto proposing government recognition of “diverse kinds” of partnerships that “move beyond the narrow confines of marriage politics” in the United States.

Feldblum is certainly entitled to her views, but do we really want a law professor with those beliefs deciding what constitutes impermissible discrimination as a matter of federal policy?

Lee goes on to say:

And don’t think for a second that you, your family, and your neighbors will be left alone if Feldblum gets her way. Feldblum has described modern-day politics as a “zero-sum game,” where rights for LGBT Americans are secured only by curtailing the rights of religious Americans.

Likewise, Feldblum believes her radical agenda “cannot be adequately advanced if pockets of resistance … are permitted to flourish.” She therefore has argued that “no individual exceptions based on religious beliefs” should ever be allowed if they conflict with “the goal of liberty for gay people.”

The full Feldblum quote, from a paper, is as follows:

“I believe granting liberty to gay people advances a compelling government interest, that such an interest cannot be adequately advanced if ‘pockets of resistance’ to a societal statement of equality are permitted to flourish, and hence that a law that permits no individual exceptions based on religious beliefs will be the least restrictive means of achieving the goal of liberty for gay people.”

She could not possibly be any clearer: religious believers must never, ever prevail. But in August, Feldblum denied that she believes this. Excerpt:

Beginning in 2009, various groups have mischaracterized my views in an effort to paint me as a radical opponent of religious liberty. Indeed, some have quoted me as saying “Gays win; Christians lose.” I have never said such a thing, nor would I.

Those who know me know that respect for religion is a paramount and lifelong value for me. My father was an Orthodox Jewish Rabbi, and on my mother’s side, I come from a long line of Hasidic Rabbis. I grew up in a home in which religion and God were the defining aspects of our daily lives. While I no longer observe the rules of Orthodox Judaism, respect for religion remains deeply ingrained in my being.

Moreover, the fabricated quote reflects a “winner-takes-all” mentality that refuses to accept the complexity of Justice Kennedy’s words in Masterpiece Cakeshop and insists instead on an outcome in which one side must always win and the other must always lose. This is a mentality that will not serve us well as a nation.

I’m sorry, but I don’t believe her. From a 2006 interview with Maggie Gallagher:

“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.”

Prof. Feldblum appears to believe that feeling a bit sorry for religious believers justifies voting for them to lose.

It is impossible to understand why Donald Trump re-nominated Chai Feldblum, but thank goodness Sen. Mike Lee is refusing to let this re-nomination go through. Conservative Evangelicals supposedly have a lot of sway with this president. Now would be a very good time for them to use it.

UPDATE:Alan Jacobs:

UPDATE.2: Reader RR:

Here’s a thought experiment: can you imagine the reaction in the press if Trump had nominated someone with the complete opposite views of Feldblum? In other words, take all of her statements about gay rights and religious liberty and flip the terms “gay rights” and “religious liberty” around so that they are reversed from the statements before us. The press and the Democrats would go nuts to denounce such a person as a bigoted extremist who has no business in a government position.

They fact that they won’t do so with Feldblum speaks volumes about their hypocrisy and their disregard for religious liberty. Because when it comes to religious liberty, a well-establish Constitutional right after all, Feldblum is exactly what my thought experiment suggests, a bigoted extremist who has not business in a government position. Good for Senator Lee for holding up her nomination. Let’s hope more senators join him.

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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