Are gay rights in conflict with religious freedom?

I began a few days ago to write about (a) whether there’s a conflict between the robust religious freedom we’ve known in the past and “the gay rights movement” and (b) whether the Obama administration is friendly toward the latter to the detriment of the former.

The piece sort of spun out of control. Things are just too interconnected. So I’m starting fresh, determined not to allow my modest objective to sink beneath the waves of “TMI” (too much information).

“The gay rights movement” in this regard could use, in Wikipedia terms, some disambiguation.

One example is hospital visitation rights for same-sex partners. (I just glossed over the mostly uncontroversial decriminalization of sodomy, as I only noticed only upon proofreading.) Who opposes that today? Is granting visitation rights a solution in search of a problem? I’ve never been stopped from seeing anyone in the hospital, outside of intensive care, and I’m unaware of being screened by gaydar.

But (skipping the vast territory between the extremes) there’s also the push for same-sex marriage, which has gone from unimagined to well-nigh axiomatic in 50 years. It is here, as I argue below, that the potential conflict with religious freedom becomes real.

Secretary of State Hillary Clinton spoke about the Obama Administration’s Human Rights agenda last Fall at Georgetown, and one passage in particular has very recently been highlighted as ominous:

To fulfill their potential, people must be free to choose laws and leaders; to share and access information, to speak, criticize, and debate. They must be free to worship, associate, and to love in the way that they choose.

(Video and full transcript here.) To critics, the italicized portions:

  • hint at a demotion of freedom of religion; it’s now merely “freedom to worship.”
  • elevate gay rights (“freedom to love in the way one chooses”) to the level of a basic or fundamental human right.

Further, both President Obama and Secretary of State Hillary Clinton have been using the phrase “freedom of worship” in prominent speeches, rather than the “freedom of religion,” it is reported. (Samelson, Why “Freedom of Worship” Is Not Enough, First Things 2/22/10)

Count me out on SSM — but for reasons that combine political philosophy and a high commitment to religious freedom, not for narrowly religious reasons. (My religious views are quite beyond my present scope, but note that I have written this and that I have a link to that, and that I subscribe to RSS feeds from the other thing.)

And it’s at the SSM end of the “gay rights” spectrum where something more than rhetorical demotion of religious freedom gives cause for concern about President Obama’s intentions.

The main example I’m aware of is President Obama’s controversial recess appointment of Georgetown law prof Chai Feldblum to the EEOC. Among other things, Feldblum is known for her advocacy of same sex marriage and her conviction that, in every imaginable semi-public or public circumstance, gay rights trump religious freedom. For her unusual honesty, I have thanked her, though I have not gone beyond allusion. Let me now get more specific.

In her symposium paper Moral Conflict: (Some) Religions and Marriage Equality, Feldblum asked what effect “marriage equality” – i.e., marriage between members of the same sex – will have on the rights of those employers, landlords and others whose religion teaches them that same-sex sexual conduct is sinful (and perhaps harmful to society):

Let me be very clear … [I]n almost all the situations (not perhaps in every one, but in almost every one), I believe the burden on religious people that will be caused by granting gay people full equality will be justified …. That is because 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.

(Source here.) That’s legalese — of a high order, by the way —for “religious liberty will be restricted in the world I’m working for.” And that probably had something to do with why the President had to slip Feldblum into EEOC by a recess appointment rather than risk rejection in confirmation hearings.

I’m neither a birther nor one who has carped constantly that Obama is a “socialist.” I’ve held my tongue as I watched Obama and the Democrat Congress enact economic policies that, incredibly, are even more reckless than those of his Republican predecessor.

But I have a longstanding passion about religious freedom. I excelled in the study of constitutional law and grabbed the opportunity of a ConLaw elective on the religion clauses. I do have some idea whereof I speak — and my time to speak out against the Administration has come.

The conflict Feldblum perceives is real. But religious freedom, our first freedom in the Bill of Rights, should be trump.

  • I don’t think the “compelling interest” Feldblum alludes to is compelling at all. I’m not even sure what it is.
  • Eradication of “pockets of resistance” takes fairly vivid form in my legally- and constitutionally-informed imagination.
  • “Pockets of resistance,” absent a compelling need for eradication, are what we normally exalt as part of “diversity.”

Here, most especially, I must resist full elaboration, lest the topic wax metastatic again.

Suffice for now that

  • My “horse in this race” isn’t really personal. My own Church will be among the very last to come under plausible attack, if only because Orthodox marriage is a sacrament, not a “public accommodation” by any stretch of the imagination, and the Order for the sacrament is replete with procreative imagery.
  • Bob Jones University famously lost its tax exemption because its racist policies (it had a sort of internal “separate but equal” policy, where blacks and Asians have long been admitted, but interracial dating was strictly forbidden) violated the “compelling interest” of eradicating the vestiges of racism (equivalent to Feldblum’s “pockets of resistance”)
  • The Boy Scouts (and others) have implausibly been classified as “public accommodations” and thus subject to anti-discrimination laws
  • A New Mexico photographer has been handed her head for declining a same-sex wedding gig. (E.g.,Volokh Conspiracy blog.)
  • Some churches, in an effort to be neighborly (well, there may be other motivations, too) have pretty freely allowed non-members to use their building for weddings, but might wish to draw a line …

(Darn! There I go again!)

Can you trust me on this one? Can you trust me and Feldblum combined? On the reality of the conflict at least?

The French reportedly have a witticism: Cette animal est tres mechant; quand on l’attaque, il se defend. (“This animal is very vicious; when attacked, it defends itself.”) The frequent focus of “the religious right” — another term that could stand disambiguation — on matters homosexual is not fundamentally aggressive, but defensive. (Scary fundraising fodder isn’t always made-up.)

I hope, fervently, that this Administration’s rhetorical demotion of religious freedom and exaltation of sexual freedom is a trial balloon, and that Obama will prove fickle if it’s sufficiently shot down from enough different directions.

To the end of proving that even non-birthers who are bitterly disenchanted with the GOP can oppose extending gay rights to the point of of substantial conflict with religious freedom, traditionally understood, the hours to produce this contribution have been dedicated.


New evidence that the administration may truly be making Gay Rights a top policy priority – in settings where there surely are more urgent needs, if no other objections to such obsession.

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