Sep 15, 2009 by Bruce
Enter Chai Feldblum; Exit Religious Liberty
For people of faith (who own, operate or are employed by businesses) already worried about the impact of the proposed federal Employment Non-Discrimination Act, or ENDA (which will grant federal protections for sexual orientation and gender identity in private employment), the latest news from the White House will not come as a comfort. The President has nominated Chai Feldblum, a Georgetown University law professor, as a commissioner on the Equal Employment Opportunity Commission. The EEOC is charged with enforcing the nation’s federal employment laws such as Title VII, the Age Discrimination in Employment Act, the Americans With Disabilities Act, and will also enforce ENDA, should it pass.
Feldblum, a lesbian and leading proponent of ENDA, has already told us how the inevitable conflict between religious liberty and sexual orientation laws will come out:
“Thus, for all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried straight couples and all gay couples, this is a point where I believe the ‘zero sum’ nature of the game inevitably comes into play. And, in making the decision in this zero sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.”
At least Professor Feldblum understands that religious liberty is infringed by laws like ENDA, and that this is a zero sum game. Most gay activists will not even grant that much. Her sympathy for lost religious liberty, however, will be small consolation for those of us from whom she will be taking it.
Feldblum will be one of 5 commissioners, and her nomination must be confirmed by the Senate.
You’ve taken the quote from Chai Feldblum out of context. Her article “Moral Conflict and Liberty: Gay Rights and Religion” argues that it is possible that non-discrimination laws will burden some people’s religious beliefs or their “belief liberty.” However, she argues, people also have “identity liberty” which gives them the freedom to be who they are. In LGBT issues, protecting both belief liberty and identity liberty are inevitably in conflict, someone loses their liberty.
(snip by editor)
There is no reason to assume that Feldblum will inevitably decide all cases under ENDA against the side of religious liberty.
ENDA exempts religious organizations. In most other private employment a person’s beliefs, private lives, sexual orientation or gender identity do not effect their ability to do a job so there is no reason to discrimintate in employment on the basis of sexual orientation or gender identity.
Dianne – thank you for your thoughtful comment. Other commenters could learn from your very professional way of stating your disagreement. I’m also sorry I had to edit out some of your recitation of Professor Feldblum’s views for length – you accurately pointed out that she favors some minor concessions to religious liberty that others advocating for ENDA and other pro-homosexual laws do not. I appreciate Feldblum’s willingness to engage on the issue. She deserves credit for just showing up at pro-traditional marriage symposiums in the past. Others wouldn’t. I don’t mean to sound like I’m dismissing her off-handedly.
However, the quote I used (and I went back and re-read her article) fits ENDA (even though it’s actually using a public accommodations example). The context of her article was about all sexual orientation-type laws, not just public accommodations. The quote is very similar to other quotes of hers, such as the one she gave Maggie Gallagher for her 2006 Weekly Standard article “Banned in Boston”: “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.”
Professor Feldblum’s admitted willingness to grant minor concessions to religious liberty in hypothetical future legislation doesn’t translate, in my mind, to anything like the promising picture you paint for people of faith under ENDA.
I also want to address in a future post your comment about ENDA and for-profit employers. I see no reason why all for-profit commercial enterprise owners should lose their religious liberties.
Donna, you need to reread your Constitution. There is absolutely no right to religious expression. There is a restriction on Congress from passing laws “respecting an establishment of religion, or prohibiting the free exercise thereof.”
Discrimination in the operation of a business is simply not an exercise of religion. Nor does the prohibition of such discrimination respect the establishment of religion.
You’ve got a much stronger argument that Congress has no business regulating commercial enterprises that don’t cross state lines. But, then, I can only assume you’re not a lawyer and have never actually studied constitutional law?
Dear Reason – since you’ve accused Donna of being a non-lawyer, I’ll assume that you are one and address your arguments on that basis, lawyer to lawyer. First, “religious expression” is certainly close enough in layman’s terms to “free exercise” that your criticism is unfair. Second, it’s just plain incorrect. “Expression” can certainly equate to “free exercise” because “expression,” more commonly understood as protected under the “free speech” clause of the First Amendment, can be religious in nature and thus protected under both the “free speech” and “free exercise” clauses. For funsies, check out this website, which contains the “Federal Guidelines for Religious Expression in Public Schools.” So let’s recap. Your first point is just wrong.
As to your second point, that “discrimination” in the operation of a business is not the exercise of religion, I wonder what authority you have for that assertion? The Supreme Court has never held such a thing. It has said that neutral laws of general application, such as non-discrimination laws can trump the exercise of religion if there’s a compelling governmental interest. But it has never said that business owners can’t by definition “exercise religion” through their daily business practices.
Finally, Donna may have thought for a moment about a Commerce Clause argument as to why the federal government should not be allowed to interfere in a completely intra-state business enterprise, but she probably quickly realized that not one of the thousands of employment case filed since the Civil Rights Act of 1964 has gotten anywhere close to success with such an argument, so she didn’t want to waste blog space
It’s not “sympathy” at all to say, essentially, that the “right” to be gay (which is not in the Constitution) trumps the right to free religious expression (which IS in the Constitution) — it’s discrimination, the very thing she’s claiming to fight against!