Friday, December 06, 2019

Fairness for All, a good idea nearly everyone hates

Andrew Koppelman

America is now so politically polarized that it’s hard to get both sides of any major issue into the same room to talk to one another.  That’s why the Fairness for All Act, which was introduced today, is such a major accomplishment.

The Act, the product of intense negotiation between advocates of the religious right and of the gay rights movement, offers a compromise in the bitter gay rights/religious liberty conflict.  It provides LGBT people with nationwide protection against discrimination in employment, housing, public accommodations, adoption and foster care, and education.  But it also protects religious institutions’ right to organize themselves around their distinctive sexual morality.

Predictably, it has almost no friends and is being denounced by both sides.  Some prominent outlets, such as Buzzfeed, are attributing it to “House Republicans,” not mentioning that most Republicans oppose it because of the broad protections it gives to gay people.

This issue has taken on an importance far beyond the tiny number who have made such claims.  Gay rights advocates fear that exempting even a few religious dissenters would unleash a devastating wave of discrimination.  Conservative Christians fear that the law will treat them like racists and drive them to the margins of American society.

I’ve been an advocate of LGBT rights for more than thirty years.  The bill is cause for celebration.  The present paralysis is good for no one, gay people least of all.  In most of the US, there is no antidiscrimination protection at all.  Twenty-nine states have no such laws, and no new ones have been enacted since 2008. 

Fairness for All creates a broad nondiscrimination rule, with exceptions for narrowly bounded religious enclaves.  Its public accommodations provision only applies to vendors with at least 15 employees, so the small cake baker is exempted.  Gender identity is protected so long as it is not asserted for an improper purpose: men won’t be able to walk into women’s restrooms.

The bill is offered as a substitute for the most recent federal proposal to bar LGBT discrimination, the Equality Act, which passed the House of Representatives in May 2019 and has been stuck ever since.  The Equality Act gives minimal protection for religion.  Fairness for All, on the other hand, has numerous religious carve-outs, leading Buzzfeed to call it “full of loopholes” and Rep. Mark Pocan to declare the law “an attempt to codify bigotry, plain and simple.”  Pocan evidently thinks that no discrimination should never ever be tolerated:  “Legalizing discrimination against any person for their sexual orientation or gender identity is unacceptable and this bill should be seen for what it is — a deliberate attempt to legalize prejudice.”

To clarify what’s at stake here, consider religious schools, which are one of the most fraught issues of concern to conservative Christians.  Rod Dreher writes that the conflict between gay rights and religious liberty will become most intense “when they start trying to tell us how to run our own religious institutions — churches, schools, hospitals, and the like — and trying to close them or otherwise destroy them for refusing to accept LGBT ideology.”

Under the Equality Act, religious nonprofits would have no right to discriminate on the basis of anything other than religious affiliation.  They could not, for example, require employees to conform to a moral requirement not to engage in sexual intercourse outside of heterosexual marriage, because such a requirement would likely be deemed to be discrimination on the basis of sexual orientation.  Fairness for All exempts such schools from coverage.

That is the liberal outcome.  Justice William Brennan, who I hope will not now be labeled a conservative apparatchik, explained in 1987:

religious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to “select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions. Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected . . .”

Private schools are incubators for cultural dissent.  Teachers teach by example.  A school’s mission is jeopardized if the school is required to employ teachers who openly defy its teachings.  Religious conservatives need safe spaces as much as anyone else does.  They should be entitled to discriminate within their own enclaves.
Both gay people and religious conservatives seek space in society to live out their beliefs, values, and identities.  Each side’s most basic commitments entail that the other is in error about moral fundamentals, that the other’s entire way of life is predicated on that error and ought not to exist.  That was also true of the religious differences that begot the Establishment Clause of the First Amendment.   We’re not going to agree, but that doesn’t mean that society hasn’t got room for all of us. 

We can quibble about the details of the Act. I’d change some of them if I could.  But that’s the conversation we should be having.

Unhappily, all the bill’s cosponsors are Republicans, including one who voted for the Equality Act.  I’m a Democrat, and I thought that we (or at least some of us) were the moderate party, while the Republicans were in the grip of the crazy Trumpists.

Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others.  We ought to try that again.

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