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Political Straight Talk About Religious Liberty

Frank words from a legislative strategist about gay rights and the challenges facing social and religious conservatives

The other day, a legislative strategist who works on the religious liberty issue on the national level read my interview with “Prof. Kingsfield,” about the challenges facing religious liberty in the pro-gay political and legal climate, and reached out to me. He said that Kingsfield is right, and amazingly well informed about matters, but that he – the strategist – had more things to add to complete the picture. I publish these remarks below with his permission. Because he needs to stay in the background, I will call him Nick. He is more optimistic than I am about the long term, but our conversation was mostly on the short-term difficulties facing our side.

“The thing people have to understand is that the LGBT movement is the NRA of the left,” Nick said. “They own the Democratic Party the way the NRA owns the Republicans. They are a spectacularly effective political force in our country.

“Contrast this with the looser collection of people out there fighting for religious liberty. Their side has a lot of people spending a lot of time and money on this issue. And since the LGBT groups become the biggest players in the opposition, they have a centralized political authority opposing religious freedom. Our side doesn’t have that. We are a group of mostly part-time, loosely coordinated folks going up against one of the best run political movements in the country.”

Nick said that religious conservatives have to face one hard, cold fact: Trying to win the cultural battle over the proper boundaries of human sexuality in the short term is impossible in the absence of another Great Awakening, which is not a political strategy.

“The best we can hope for is to lock in legal protections while we can – laws that allow us to live our own lives within a hostile culture,” he said.

If we do that we can fight to a draw on the cultural argument over whether Judeo-Christian sexual ethics are akin to segregation, but we will not win the argument if we’re seen as arguing that it’s okay to discriminate against gays and lesbians.

Everybody knows that the Supreme Court is almost certainly going to constitutionalize same-sex marriage this term. For religious freedom this is bad news. “And the bad news is about to get worse,” he said.

“My read — and this isn’t just conjecture, but based on conversations with leaders on the other side – is that assuming that the marriage case in SCOTUS goes against us, the next step from the other side is what they call something like a ‘Campaign for Full Equality,’ to give full civil rights protections to LGBT people.”

That is, to make it where no discrimination based on LGBT status is permitted — at all. Twenty-eight states now lack these laws, including most of the presidential swing states. The smart LGBT strategists are likely two years into planning this next stage, and that’s exactly what I would do if I were them. These are serious and capable political operatives.

The business community is already on their side.

“What happened to Memories Pizza sends a message to businesses that if they speak out against this stuff, it’s going to cost them,” he said. “Businesses who ordinarily do not like laws that create potentially new litigation will just shut their mouths and go along with it” — that is, if they aren’t already at the head of the parade.

Nick said that from where he sits, the recent law passed in Utah is a more realistic political approach. It provides substantial protections for religious liberty and achieves anti-discrimination goals. Neither side gets all of what it wants, but both got a compromise they can live with.

Law professors like Doug Laycock, who pretty much everybody respects as a neutral arbiter in these legal matters, say that Utah’s legal protections are “at least as good as a RFRA,” the strategist said.

(Side note: Laycock has for years favored same-sex marriage rights, but is also strong on religious liberty. He supported the Indiana RFRA, and gave an interview the other day [https://religionandpolitics.org/2015/04/01/why-law-professor-douglas-laycock-supports-same-sex-marriage-and-indianas-religious-freedom-law/] expressing his frustration that neither the gay rights nor religious liberty side seem to be willing to grant that their opponents might have a legitimate claim. It’s all about total victory.)

The strategist said that after years of working in the legal and political arena on this issue, he has concluded that orthodox Christians and others on the religious liberty side need to decide which expressions of religious liberty they most want to protect, and which ones they will not jeopardize the highest priority protections for. It’s one thing to protect a big company from having to pay for abortion-causing drugs, but you’re not going to be able to give them the “religious right” to fire their gay employees. And it’s a right they’re not asking for, even in private.

“We have a whole list of things we want to protect – religious schools, adoption agencies, licensure in the workplace, and so on,” he said. “And we have a list of things that none of us want to protect, like a restaurant owner that sees a gay couple having dinner in his place and throws them out because he hates gays. We are going to have to let that kind of thing go, to let gays and lesbians know that we’re serious about shielding them from things like that.”

Nick said that this is hard for many on the religious right to understand — and he is highly sympathetic to that struggle. Many leaders believe that giving in on any point is conceding the argument to the LGBT side. This, he said, is completely unrealistic from a political point of view. If the public comes to believe that protecting religious liberty requires letting the most obnoxious people have their way, then they won’t support it.

“Our side has to understand that there is a sense in which there are exercises of religious liberty harder to protect than others,” he said. “We need to get that it’s not a sell-out to settle for gradualism, the way the pro-life movement has done. The important thing to understand is that we would be ceding ground that we’ve already lost to gain ground that we stand to win.”

I asked Nick what he thinks is the most important thing for religious conservatives to understand now, but that they’re not grasping. He returned to the practical politics of the present moment.

“One of the strange things about the Supreme Court case that gave rise to RFRA in the first place is that it made religious liberty a matter of politics,” he said. “In 1993, when the federal RFRA was passed, we weren’t yet a post-Christian culture. Now most Christian conservatives get that we’re a post-Christian culture. But most of them don’t understand that religious liberty is a matter of politics.

“If you want religious liberty, you have to enact it legislatively,” he continued. “Even the people who are the best and the brightest on our side by and large don’t have any experience doing politics beyond the public messaging side. That’s not a criticism: people do the jobs they were hired to do. But the technical political skills gap on our side in trying to pass stuff is huge. If we traded political machines with our opponents but kept that issues the same, we’d be rolling to victory.”

Pragmatism is the name of the game, he said.

“In an all-or-nothing contest, we’re going to lose. We are badly outmatched. We don’t have the tactical skills to beat the other side, we don’t have a media that’s committed to being fair. We don’t have the money to remotely match their resources, and increasingly, we don’t have the culture with us, at least not on the views of sexuality that are in dispute.”

I told him that people like me get outdone with the GOP for going wobbly, but that Prof. Kingsfield’s point about how the Republicans may be fair-weather friends, but they’re all we have, has made me reconsider.

“Look, the very fact that we’re going to have same-sex marriage in this country means that some religious liberty is going to be lost,” he said. “Religious liberty is a triage issue to some degree. Kingsfield is right. The kind of Republican who gets elected to statewide office is somebody who can raise a lot of money and pick and choose his or her fights carefully. If even Mike Pence, who was one of the most socially conservative members in Congress, and who had a reputation as a very serious Christian, if even he goes wobbly, then we’re going to have factor in how hard our position is to protect.”

The biggest advantage that the anti-religious liberty side has gained in the past two years, he said, has been the support of large, influential business interests. In the past, they stayed away from divisive, emotionally fraught issues. Now they have chosen sides.

“The pro-life movement never had to deal with anything like this,” he said.

The strategist took a moment to backtrack, and to say there are three major factors in play right now:

1. The LGBT movement has hegemonic influence in the Democratic Party. No Democrat, whatever his private views, will stand against them any more than a Republican, whatever his private views, will stand against the NRA. And some Republicans will cave when the business community yells in their ear.

2. The news media are totally in the tank on this issue. “There is a level of shameless, advocacy journalist we don’t see on any other issue,” he said. “There is this swaggering confidence that this is the new civil rights movement. Plus, the fact is that there are so few people of faith in the news media that they just can’t imagine why religious people ought to be protected.”

3. The secularity of younger people. There has been a huge shift in the percentage of younger people who never attend religious services or who identify as the “religious nones” in just the last generation.

“These people don’t get their views on RFRA by reading Doug Laycock. They get their news from like-minded people, frequently on Twitter and Facebook,” he said. “The fact is, younger people are more secular, and they get their news from biased sources. This is why you get a social media swarm around religious liberty issues.”

For all that, Nick said that he has “more optimism than maybe I should.” Why? Because failure will, he hopes, wake our side up to political reality, and because states like Utah show show that protecting religious liberty can probably be done without nuclear war.

I asked Nick what he thought about my Benedict Option idea – that is, the view that religious conservatives ought to start coming up with ways, including through institutions, of building resilience for our faith and values within our communities, in an increasingly hostile post-Christian culture.

He agreed that the Benedict Option has to be a necessary part of our strategy going forward. Yet we cannot disengage from politics, Nick said, because politics is the only way to protect the institutions we have. The law can give us protection, but it cannot keep us – or our children — faithful to what we know to be true. Any realistic strategy has to account for external protection and internal strengthening.

“Something that hasn’t happened yet that I really hope happens soon: there needs to be teaching in the church about how to react to these situations,” he said. “If you’re a wedding photographer and your conscience won’t let you do photograph a gay wedding, there are good Christian ways and bad Christian ways of handling the situation. Apart from the law, we need to talk about how to defend our views, and how to lovingly interact in these conscience situations while still being winsome about it. That kind of Christian conversation needs to begin in earnest, but each faith community has to figure out how to do that kind of sensitive dialogue.”

“Politics are necessary, but they aren’t sufficient,” he said. “I have concluded that our society is going down a path on these issues of sexuality that are 180 degrees from the historically Judeo-Christian view of sexuality. That’s what pre-Christian culture looked like, and that is what a post-Christian culture will look like. The only way to help the culture recover is to build up these little communities, to preserve the faith in love, and to insulate these communities from reprisals to the extent we can.”