Again, The Religious "Wrong" Reads Out of Context

The author of the following article has taken Professor Feldblum's comments out of context and blurred the intent of her speech much like many of the religious "wrong" do with the Bible.

As with many other religious, conservative organizations, they miss the point and attempt to confuse the issue with their belief system. If they had read the full speech, they could have honestly pointed out Professor Feldblum's attempt to promote positive dialog between LGBT activists and "conservative people of faith" which is indicated by the following direct quote with footnotes from her speech, Moral Conflict and Liberty: Gay Rights and Religion.

My goal in this piece is to surface some of the commonalities between religious belief liberty and sexual orientation identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. I first want to make transparent the conflict that I believe exists between laws intended to protect the liberty of lesbian, gay, bisexual and transgender (“LGBT”) people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. I believe those who advocate for LGBT equality have downplayed the impact of such laws on some people’s religious beliefs and, equally, I believe those who have sought religious exemptions from such civil rights laws have downplayed the impact that such exemptions would have on LGBT people.

Second, I want to suggest that the best framework for dealing with this conflict is to analyze religious people’s claims as belief liberty interests under the Due Process Clauses of the Fifth and Fourteenth Amendments, rather than as free exercise claims under the First Amendment. There were important historical reasons for including the First Amendment in our Constitution, with its dual Free Exercise and Establishment Clauses.1 But the First Amendment should not be understood as the sole source of protection for religious people when the claims such individuals raise also implicate the type of liberty interests that should legitimately be considered under the Due Process Clauses of our Constitution.2

My argument in this article is that intellectual coherence and ethical integrity demand that we acknowledge that civil rights laws can burden an individual’s belief liberty interest when the conduct demanded by these laws burdens an individual’s core beliefs, whether these beliefs are religiously based or secularly based. Acknowledging such a liberty interest will not necessarily

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1 See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 8-14 (1947) (discussing these historical reasons, including the early Americans’ desire to escape the “bondage” of European laws that compelled citizens to attend and support government-favored religions, and the colonial governments’ practice of taxing citizens to pay for, among other things, ministers’ salaries and the construction of churches).

2 As a practical matter, of course, current constitutional doctrine would provide minimal protection to any individual who experienced a civil rights law as burdening his or her religious beliefs or practices. Under the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), a neutral law that burdens religious beliefs will be sustained as long as it is

rationally related to a legitimate governmental purpose. But the catalyst for my argument is not the strategic one of offering religious people a “second bite at the apple” post-Smith. Rather, as I hope to make clear in this article, I believe it is simply more appropriate to analyze religious belief claims as liberty claims, and not to elevate religious beliefs over other deeply held beliefs derived from sources other than religion.

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result in the invalidation of the law or the granting of an exemption from the law for the religious individual. Rather, as I hope to demonstrate below, Justice Souter’s concurrence in Washington v. Glucksberg3 offers us a useful approach for engaging in the required substantive due process analysis, in a manner that provides us with a means of seriously considering the liberty

interest at stake without necessarily invalidating the law burdening that interest.

Finally, I offer my own assessment of how these conflicts might be resolved in our democratic system. I have no illusions that either LGBT rights advocates or religious freedom advocates will decide I have offered the correct resolution. But my primary goal in this piece is simply to argue that this conflict needs to be acknowledged in a respectful manner by both sides, and then addressed through the legislative processes of our democratic system. Whether my particular resolution is ultimately accepted feels less important to me than helping to foster a fruitful conversation about possible resolutions.4

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3 521 U.S. 702, 752-89 (1997) (Souter, J., concurring).

4 Among the law review articles and notes that have been written on this issue (all from the perspective of free exercise claims), some have suggested a balancing of interests, while others have focused on justifying either the religious interest or the non-discrimination perspective. Surprisingly to me, I found a limited number of articles on the subject overall. See, e.g., Richard F. Duncan, Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom, 69 NOTRE DAME L. REV. 393, 438, 444 (1994) (arguing that anti-discrimination legislation based on sexual orientation is not a compelling interest like gender or race because homosexuality is still “morally controversial” and government should not legislate a particular view of sexual morality); Marie A. Failinger, Remembering Mrs. Murphy: A Remedies

Approach to the Conflict Between Gay/Lesbian Renters and Religious Landlords, 29 CAP. U. L. REV. 383, 425-28 (2001) (proposing a remedies approach under which a landlord would be held liable for discrimination based on religious beliefs, but under which damages would be limited, so as to recognize and honor the landlord’s religious beliefs, discourage frivolous claims

challenging those religious beliefs, and strike a balance between the parties’ “consciences”); Harlan Loeb & David Rosenberg, Fundamental Rights in Conflict: The Price of a Maturing Democracy, 77 N.D. L. REV. 27, 49 (2001) (suggesting individual religious-based exemptions that could be overridden by a state’s compelling interest in limited circumstances); Maureen E. Markey, The Landlord/Tenant Free Exercise Conflict in a Post-RFRA World, 29 RUTGERS

L.J. 487, 549-52 (1998) (suggesting proposals for a modification or replacement of the compelling state interest test in free exercise cases that have the hallmarks of voluntary commercial activity and third party harm); Maureen E. Markey, The Price of Landlord’s “Free” Exercise of Religion: Tenant’s Right to

Lesbian Chai Feldblum-Gay Marriage Means Less Religious Rights

By Illinois Family Institute , Upholding Marriage and Family - December 11, 2009

Georgetown University lesbian law professor Chai Feldblum believes that when same-sex marriage is legalized, which she argues is both necessary and inevitable, conservative people of faith will lose religious rights. This is the same Chai Feldblum who has been nominated to serve on the Equal Employment Opportunity Commission (EEOC).

Feldblum, speaking at a Becket Fund Symposium in December 2005 stated the following:

[L]et us postulate, for the moment, that in some number of years an overwhelming majority of jurisdictions in this country will have changed their laws so that LGBT people will have full equality in society, including access to civil marriage. Or, indeed, let us postulate that the entire country is governed--as a matter of federal statutory and constitutional law--on the basis of full equality for LGBT people....

Assume for the moment that these beliefs ultimately translate into the passage of laws that prohibit discrimination based on sexual orientation and that provide same-sex couples the same societal supports currently available to opposite-sex couples, including access to civil marriage....[G]ranting this justified liberty and equality to gay people will likely put a burden on those religious people who believe acting on one's same-sex sexual orientation is a sin and who may feel they are aiding and abetting sin if they rent an apartment to a gay couple, allow a gay couple to eat at their restaurant, or provide health benefits to a same-sex spouse....

Let me be very clear...in almost all the situations...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...

Original Article