The (Gay) Public Intellectual
Of all the scholars who attended, perhaps the most surprising is Chai Feldblum. She is a Georgetown law professor who is highly sought after on civil rights issues, especially gay civil rights. She has drafted many federal bills to prohibit orientation discrimination and innumerable amicus briefs in constitutional cases seeking equality for gay people. I asked her why she decided to make time for a conference on the impact of same-sex marriage on religious liberty.
"Not because I was caught up in the panic," she laughs. She'd been thinking through the moral implications of nondiscrimination rules in the law, a lonely undertaking for a gay rights advocate. "Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad," Feldblum points out. In employment law, for instance, "we allow discrimination against people who sexually abuse children, and we don't say 'the only question is can they type' even if they can type really quickly."
To get to the point where the law prohibits discrimination, Feldblum says, "there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn't tell you what you can do. There has to be enough outrage to bypass that basic default mode in America. Unlike some of my compatriots in the gay rights movement, I think we advance the cause of gay equality if we make clear there are moral assessments that underlie antidiscrimination laws."
But there was a second reason Feldblum made time for this particular conference. She was raised an Orthodox Jew. She wanted to demonstrate respect for religious people and their concerns, to show that the gay community is not monolithic in this regard.
"It seemed to me the height of disingenuousness, absurdity, and indeed disrespect to tell someone it is OK to 'be' gay, but not necessarily OK to engage in gay sex. What do they think being gay means?" she writes in her Becket paper. "I have the same reaction to courts and legislatures that blithely assume a religious person can easily disengage her religious belief and self-identity from her religious practice and religious behavior. What do they think being religious means?"
To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: "When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians." Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don't matter.
"You have to stop, think, and justify the burden each time," says Feldblum. She pauses. "Respect doesn't mean that the religious person should prevail in the right to discriminate — it just means demonstrating a respectful awareness of the religious position."
Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, "I'm having a hard time coming up with any case in which religious liberty should win."
She pauses over cases like the one at Tufts University, one of many current legal battles in which a Christian group is fighting for the right to limit its leaders to people who subscribe to its particular vision of Christianity. She's uncertain about Catholic Charities of Boston, too: "I do not know the details of that case," she told me. "I do believe a state should be permitted to withhold tax exempt status, as in the Bob Jones case, from a group that is clearly contrary to the state's policy. But to go further and say to a group that it is not permitted to engage in a particular type of work, such as adoptions, unless it also does adoptions for gay couples, that's a heavier hand from the state. And I would hope we could have a dialogue about this and not just accusations of bad faith from either side."
But the bottom line for Feldblum is: "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."
Marc Stern has known Chai Feldblum since she was eight years old. "Vivacious, really extraordinary," he says as he smiles, shaking his head at the memories of the little girl whose father he knew well. "Chai is among the most reasonable [gay rights advocates]," he says. "If she's having trouble coming up with cases in which religious liberty should win, we're in trouble."
As general counsel for the American Jewish Congress, Marc Stern knows religious liberty law from the inside out. Like Anthony Picarello, he sees the coming conflicts as pervasive. The problem is not that clergy will be forced to perform gay marriages or prevented from preaching their beliefs. Look past those big red herrings: "No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them. Same-sex marriage would, however, work a sea change in American law. That change will reverberate across the legal and religious landscape in some ways that are today unpredictable," he writes in his Becket Fund paper.
Consider education. Same-sex marriage will affect religious educational institutions, he argues, in at least four ways: admissions, employment, housing, and regulation of clubs. One of Stern's big worries right now is a case in California where a private Christian high school expelled two girls who (the school says) announced they were in a lesbian relationship. Stern is not optimistic. And if the high school loses, he tells me, "then religious schools are out of business." Or at least the government will force religious schools to tolerate both conduct and proclamations by students they believe to be sinful.