The polarizing conflict between religious liberty (here without the delegitimatizng “scare quotes” so ubiquitous in LGBT circles) and gay rights/LGBT anti-discrimination law was addressed by Jonathan Rauch, a past Independent Gay Forum contributing author, when he spoke at the University of Illinois Law School recently (viewable here via YouTube, about 40 minutes).
Rauch starts by noting that to understand where we are in the discussion of gay rights versus religious liberty, consider two bills now before Congress:
One is called the Equality Act. It would grant [LGBT] Americans…protection from housing, employment and public-accommodations discrimination under federal law, which is something that we lack at present. It’s championed by Democrats and liberals.
The other piece of legislation is called the First Amendment Defense Act, or FADA. It would pre-emptively shield all those people who object to same sex marriages or who choose to discriminate against same-sex marriages…whether on religious or moral grounds…from any federal sanction or disallowance of benefit…. It is championed, as you would imagine, by Republicans and conservatives.
Though coming at the question from opposite corners, the two bills have something in common: each tries to take all the marbles and leave the other side with nothing, or at least with as little as possible. The Equality Act includes a provision revoking any protection which religious objectors might enjoy under the [federal] Religious Freedom Restoration Act. The First Amendment Defense Act shields the objectors from discrimination while leaving gay people wholly unprotected from discrimination under federal law.
If these bills are opening positions in a negotiation, then what should ultimately happen is legislative bargaining leading to the obvious compromise: protections for gay people plus exemptions for religious objectors.
That, however, seems unlikely to happen because advocates on both sides aren’t interested in forging a compromise—which, Rauch notes, is “emblematic of an unfortunate development: an issue on which a few years ago there seemed to be reasonably good prospects for reasonable accommodations…has hardened into legal and political trench warfare.”
To which I’d add, the polarization/compromise-rejection serves those who don’t actually want a solution because they profit from permanent cultural warfare. And that’s because ongoing cultural war equals (1) big money flowing to advocacy groups and (2) hot-button issues that the political parties can use to fire-up their respective bases.
18 Comments for “The Rejection of Compromise: Take Two”
posted by Tom Scharbach on
The interrelationships between the Civil Rights Act of 1964 and the federal RFRA (1993) are complicated and not entirely resolved.
RFRA was a legislative attempt to restore the Sherbert/Yoder (1963) constitutional test (“substantial burden”, “compelling state interest”, “least restrictive means”) to laws of general application after Justice Scalia’s opinion in Employment Division (1990) removed the “compelling state interest” requirement of the constitutional test when laws of general application were in question.
Before Employment Division, the Sherbert/Yoder test applied to the Civil Rights Act of 1964, after Employment Division and before RFRA, the Sherbert/Yoder test presumably did not (the question was not raised or decided to my knowledge), and after RFRA the Sherbert/Yoder test presumably applies once again (as far as I know, the question has not been definitively answered).
Assuming that the Sherbert/Yoder test applies to the Civil Rights Act of 1964 (as I think it does), the test applies to religious objections to the law in general, that is, the test applies to all religious actions/objections to the application of the Civil Rights Act of 1964, and to all classes/classifications (race, religion, gender, etc.) under the Act. A religious objection to serving African-Americans, a religious objection to renting a hall for a Jewish wedding reception, a religious objection to hiring a married woman, et. al., are all treated on an equal basis. If religion-based discrimination is permitted with respect to one, it is permitted with respect to all. In my view, that is how it should be.
As anyone who follows my comments knows, I believe that the Sherbert/Yoder test (“substantial burden”, “compelling state interest”, “least restrictive means”) is the correct balance between laws of general application and religious objection, and I believe that it should be applicable to all laws and state/governmental actions, state and federal alike.
When Sherbert/Yoder was the law of the land, that was the case. After Employment Division, that was no longer the case, either state or federal. RFRA attempted to restore the status of Sherbert/Yoder to both state and federal laws, but Flores (1997) ruled that RFRA’s application to state laws was unconstitutional (the federal government could constrain its own actions beyond the constitutional test set forth in Employment Division, but could not similarly constrain the states).
I oppose Congressional attempts to restore Employment Division as the constitutional standard applicable to the Civil Rights Act of 1964, as the Equality Act of 2016 attempts to do (“SEC. 1107. Claims. The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.“) I’ve written to my representatives in Congress to express my objection to Section 1107, and my reasons for objecting.
In short, I think that the federal RFRA is on target, restoring the broad Sherbet/Yoder test, and I think that it should apply to the Civil Rights Act of 1964 across the board, and all other federal laws.
On the other hand, I think that the First Amendment Defense Act is an abomination, a perversion of religious freedom and an unwarranted destruction of the Sherbert/Yoder test.
I think that FADA is a perversion of religious freedom because it is applicable only to a small and relatively insignificant sliver of religious objection, that is, religious objection to same-sex marriage. Religious freedom/objection is much too important to be toyed with to appease a small segment of our population in the heat of the moment.
I think that FADA is an unwarranted destruction of the Sherbert/Yoder test because FADA eliminates the “substantial burden” requirement, and, in fact, removes the “burden” test entirely. The “substantial burden” test is an important constitutional requirement, because it (in effect) requires that an individual claiming a religious exemption from the law have some skin in the game, so to speak. Replacing the “substantial burden” requirement with a “mere burden” requirement (as state-level RFRA bills are prone to do recently) is bad enough; eliminating the “burden” requirement entirely is terrible public policy, and wipes away close to 50 years of constitutional law.
I don’t know what Rauch is actually proposing (if anything), because Stephen did not link to a text of the lecture, which he appears to quote from at length. But if Rauch is proposing some kind of “compromise” under which Sherbert/Yoder is weakened or replaced as the test for religious objection, I think that he is wrongheaded to do so, as wrongheaded as he was when he abandoned marriage equality in favor of a national civil unions law. Equality under the law is too important to be toyed with in the interest of short-term “solutions”, and so is freedom of religion.
posted by Jorge on
“Though coming at the question from opposite corners, the two bills have something in common: each tries to take all the marbles and leave the other side with nothing, or at least with as little as possible.”
Isn’t that how the game is played?
“For more than two decades the Human Rights Campaign has failed to pass its signature legislative goal, which for most of that time was the Employee Non-Discrimination Act (ENDA) and is now the Equality Act. This includes periods with both a Democratic president and Democratic congress (under Bill Clinton and Barack Obama), and periods with a Republican congress but enough GOP support to push ENDA through. What happened? Every time the measure was poised to pass, activist groups would insert some new provision that would lose majority support (adding transgender protections most prominently, and now the expansion to include public accommodations). Or, as with ENDA under Harry Reid’s Senate and Nancy Pelosi’s House, the Democrats would strangely fail to move the bill out of committee, with nary a protest from HRC—until Republicans were back in charge. (“No Compromise, Declare LGBT Activists”, IGFCultureWatch, October 27, 2016)
To which I’d add, the polarization/compromise-rejection serves those who don’t actually want a solution because they profit from permanent cultural warfare. And that’s because ongoing cultural war equals (1) big money flowing to advocacy groups and (2) hot-button issues that the political parties can use to fire-up their respective bases
Brit Hume has a regular feature on On the Record on left-ideological controversies on college campuses. I rather doubt political parties are responsible for creating college wingnuts. Advocacy groups? Worth a maybe. An interaction between the two forces? Worth a stronger maybe.
Where do wingnuts (and wingnut behavior) come from? Someone should do a study or talk about one.
I believe it comes from the people’s complicity with the system. Only one election every four years is important. Only one person, the president, can save the country. He’s a Democrat, no he’s a Republican, so I’ll just vote for them every year. Social issues and war are too dangerous to talk about in public, too many crazy and ignorant complete strangers come up to you and shout obscenities, I’ll just vote and give money.
I’ll have to watch the video later.
As anyone who follows my comments knows, I believe that the Sherbert/Yoder test (“substantial burden”, “compelling state interest”, “least restrictive means”) is the correct balance between laws of general application and religious objection, and I believe that it should be applicable to all laws and state/governmental actions, state and federal alike.
I would have only guessed the second half of that. I actually still do not believe the first half of that is true.
posted by JohnInCA on
From my perspective it’s pretty simple. Golden Rule: “Treat others as you would be treated”.
Currently (under federal law) a Christian butcher/baker/candlestick-maker can kick me out of their store because of their God’s grudge against gays. They can then follow me into my store and I am prohibited from kicking them out because of their God’s grudge against gays.
That’s the status quo. The status quo, quite obviously, fails the Golden Rule.
The Equality Act moves us closer to it. It puts me under the same protections that our religious opponents already enjoy.
The First Amendment Defense Act moves us further from it. It takes the status quo and piles even more special rights on anti-gay Christians, while doing nothing for my situation.
So let’s be clear: if my options are FADA or status quo, I’ll take the status quo. And that is why compromise will fail. Because it’s a regression.
posted by TJ on
Hmm.
I recall that people in Utah managed to come together to protect gays from some types of discrimination.
posted by JohnInCA on
You should also recall that the Utah law wasn’t rolling back any protections and that the state’s non-discrimination law already had wide carve-outs for religion.
So to make that clear: The Utah “compromise” was an unequivocal step forward and treated LGBT the same as everyone else.
FADA, in contrast, does nothing of the sort, and if put into effect alongside non-discrimination protections for gay people would treat (at the federal level) gay people different from other protected groups, which is (legally and philosophically) a bad move.
posted by Doug on
This is a prime example why you cannot offer a compromise on anything with the Republican Party.
https://www.texastribune.org/2016/10/28/texas-republicans-want-narrow-scope-same-sex-marri/
posted by TJ on
Part of the problem – I suspect- is that LGBT groups with the most resources , don’t want to make the necessary, long-term investments in the “red” States and districts.
For decades, the goal seems to have been on the urban cities and “blue” districts.
Granted, their may have been a valid point behind this strategy. It has some success stories to be sure.
However, the flip side is that getting federal or state civil rights bills passed is difficult when you need backing of elected officials in states and districts where the big LGBT groups look as “fly over” places.
posted by JohnInCA on
First up, let’s clarify terms. In this case “resources” roughly means that frothy mix of money, time, and connections.
Starting with that definition, where do you find people with more “resources”? Cities. Which are, whataya know, blue. Even in “red” states, cities tend towards blue.
To put it simply, it isn’t that LGBT groups aren’t trying to make the “necessary, long-term investments” in “red” states, it’s that they’re investing in the necessary, long-term investments in their own states and districts. Because just as it’s true that even red states have blue cities, blue states have red rural areas.
Or to put it another way… people are self-interested. It’s a lot harder to persuade people to throw money at a national cause that will help way over there when they see problems at home they still want addressed.
posted by Houndentenor on
I don’t think there’s anywhere in the country where outside groups coming in to tell local people what to do goes over well. If they want to expend resources they need to just give the money and maybe some advice on strategy to the local groups.
posted by Jorge on
You mean like North Carolina and really big city in North Carolina?
Shall we just let people be ruled by their own rulers?
I think not! Rulers have an obligation to be wise and fair.
posted by Houndentenor on
Would there be any real return for an investment in red areas (not states but areas as there are blue cities in most red states)? Or would it be a waste of resources that could be better spent elsewhere. The Houston campaign was not well run and that would have been a good use of resources, but the Texas state legislature is a lost cause for gay issues. Also, why aren’t the gay conservative groups focused on the red states? Because even they know that’s a waste of time.
posted by Kosh III on
“Also, why aren’t the gay conservative groups focused on the red states? Because even they know that’s a waste of time.”
Plus it’s much easier to lounge around in safe blue areas and blame mythical leftists and Democrats.
posted by TJ on
I understand that it’s easier for gays in the Twin Cities to focus on the metro region and ignore the “fly over farm belt ” of the state.
posted by Jorge on
Currently (under federal law) a Christian butcher/baker/candlestick-maker can kick me out of their store because of their God’s grudge against gays. They can then follow me into my store and I am prohibited from kicking them out because of their God’s grudge against gays.
Sounds consistent to me. One involves expression of religion. The other involves discrimination against religion.
The reason you should kick them out is because of God’s grudge against people who God grudge against gays.
posted by JohnInCA on
So you just skipped the preceding and following lines, eh?
Golden Rule Jorge. They want to discriminate against me? I should be able to discriminate against them. They want me to be prohibited from discriminating against them? Then they should be prohibited from discriminating against me. It’s not that complicated, but not a single “Religious Liberty” law that’s been proposed would play by it.
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