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.