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Gay Rights & Religious Liberty: A Zero-Sum Game

We can't have both -- and religious liberty is losing

Lots of pushback against my saying that the advance of gay rights is at the present moment the greatest threat to religious liberty. People don’t want to believe it. For the record, I believe in granting employment and housing protections to gays; I’m not opposed across the board to gay rights. It’s only that the overall gay rights project is triumphing at the clear and substantive expense of religious liberty. It cannot be any other way, not when the religions in question — Christianity, mostly, but also Orthodox Judaism and Islam — have clear teachings on homosexuality, ones that cannot be reconciled with the moral legitimation of homosexuality.

This has been obvious for a long time, but people don’t want to accept it. Folks want to believe in religious liberty, and they want to believe in gay rights. It really is a zero-sum game in most respects. Maggie Gallagher laid this all out nearly a decade ago in a prophetic report from a law conference exploring the emerging conflict between same-sex marriage and religious liberty. The key passage:

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. [N.B.: This was written in 2006. — RD]

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.

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.”

That’s just the law. In civil society, especially in journalism, academia, and corporate America, the change is well underway. Brendan Eich was a bellwether, as was Indiana, in that it showed there is only weak support for religious liberty in the country now, at least around this issue. Traditional Christians are being and will continue to be anathematized and driven out. It’s coming. If you don’t think Brendan Eich and the small-town pizza shop owners suffered a loss of religious liberty, you don’t know what religious liberty is. And if you don’t understand how law and politics follow culture, you won’t see how the stigmatization of traditional religious believers is bound to show up in law and policy.

It could well be that this retraction of religious liberty we’re seeing, both legally and culturally, for the sake of gay rights, is necessary and correct. But it is a real thing, whether it is politic to admit it or not. This is the Law of Merited Impossibility in action: “It’s not going to happen, and when it does, you people will deserve it.”

UPDATE: Maggie Gallagher adds in the comments:

Thanks Rod. I’m not a prophet, I just respected my opponents enough to listen to what they said and to believe they meant it. A gift for seeing the world through others’ eyes is helpful, even if you disagree.

One quibble. “gay rights and religious liberty” do not need to be zero sum game. But when gay rights becomes “gay equality” that is when it becomes zero sum.

Conflicting liberty interests lead in theory to pluralism. But equality trumps liberty in liberal thought.



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