“For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.”
-George Washington, 1790
[NOTE: Following remarks were delivered at the 6th Annual GSLEDD Conference, University of Ottawa]
My forthcoming paper deals broadly with antidiscrimination laws and more specifically with a series of U.S. state cases involving small business owners who open their businesses to the public and get in trouble for refusing to serve members of the LGBT community. In all of theses instances, the businesses are alleging that their refusal to provide some specific service is disconnected from that customer’s sexual orientation, but is linked to the seeming endorsement of the activity for which the service is provided towards.
Instead of going into the details of these cases, I’d like to spend my time dealing with something more fundamental about the faith and equality crisis, which is acknowledging that we need to approach this issue with an emphasis on finding a meaningful compromise, which, in the words of Professor of Law Robin Fretwell Wilson, is the only means towards “significant protections for religious objectors and significant protections for the LGBT community against discrimination.” I highlight recent events surrounding these two communities as illustration that both are not without their respective injuries or preferential procedures.
On the Equality side, as of late…
In April, the Seventh Circuit sitting en banc ruled that sexual-orientation discrimination in employment violates Title VII of the Civil Rights Act of 1964—thus, setting up a divide within the circuit courts ripe for Supreme Court review. Judge Posner, writing a concurrence, noted that the pervasive acceptance and normalcy of gay and transgender identity allows for the court to now interpret the words of Title VII differently, “not because we’re smarter than the statute’s framers and ratifiers, but because we live in a different era, a different culture.”
Contrast that with a decision that came out Tuesday of this week, where the West Virginia Supreme Court of Appeals in a 3-2 decision held that “sex” in the state’s civil rights statute does not include sexual orientation, noting that “where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” With the introduction of Justice Gorsuch to the Supreme Court, the majority seems likely to side with the approach taken by West Virginia.
On the international scene, homosexuality, according to a Pew Research Study from this week, says that the dominant view across most countries in Central and Eastern Europe say that homosexuality should not be accepted by society.
Other disconcerting reports are coming out of a semi-autonomous province in Northern Indonesia where two gay men have been arrested and face 100 lashes in a case that is drawing international attention to the enforcement of controversial new Islamic bylaws in the region. As of May 10, the two defendants appeared before the court without a lawyer and are now awaiting the judge’s decision.
Something closer to home: the Globe and Mail reported last month that “aid agencies are urging Canada to establish an emergency relocation program for gay men fleeing persecution in Chechnya. But thus far, Ottawa is prepared to offer only moral support.”
On the Faith side…
While religion has generally faced a lesser form of discrimination in the States, the international scene is drastically different. If I may make three points here connecting the above material particularly on the issue of antidiscrimination laws and conscience claims coming from the faith community.
First, in his 2016 essay, pre-eminent law and religion historian John Witte notes that:
“Religious liberty is increasingly viewed as an impediment to progress, not a bulwark of democracy; as a shield for bigotry, not a haven for the unpopular; as a threat to liberalism, not a foundation of liberty.”
Many news outlets have taken on the banner of progressive virtue signaling by placing religious liberty in quotes to suggest, among other things, that the fundamental right is nothing more than a veiled attempt to perpetuate bigotry.
Second, on the international scene, recent reports exacerbated with the rise of militant jihadi organizations in the Middle East, have “confirm[ed] the precarious status of religious minorities in many parts of the world.” For example, this again from John Witte:
a 2014 study found that Christians were more widely harassed than any other religious group, experiencing social and political hostility in at least 110 countries. These hostilities against religious believers are carried out by a wide range of private groups and governmental entities. They include arrests and detentions; desecration of holy sites, books, and objects; denial of visas, corporate charters, and entity status; discrimination in employment, education, and housing; closures of worship centers, schools, charities, cemeteries, and religious services; and worse: rape, torture, kidnappings, beheadings, and the genocidal slaughter of religious believers in alarming numbers in war-torn areas of the Middle East and Africa.
Finally, as an illustration of the cross-sectional dynamics between the faith and equality crisis, I point you to the number of recent challenges mentioned at the start, dealing with public accommodation laws. Richard Samuelson, writing in Mosaic Magazine, notes that personal identity in the context of the gay-rights movement “has resulted in a legal battle in which the radioactive charge of ‘discrimination,’ borrowed from the civil-rights movement of the 1960s, is wielded as a weapon to isolate, impugn, and penalize dissenting views held by Americans of faith and informing the conduct of their religious lives.”
Striking a Proper Balance…
While I run in danger of being accused of bigotry by some like Wake Forest Professor Shannon Gilreath, who writes that distinguishing anti-gay discrimination with anti-black discrimination is merely a “convenient smoke screen enabling bigots to mask their true animus,” I advocate doing just that in respects to the cases mentioned—desiring earnestly to embody the balanced spirit of George Washington’s words to the Hebrew Congregation in Rhode Island: “For happily the Government of the United States—which, gives to bigotry no sanction, to persecution no assistance—requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.”
My paper in this takes much from the advice of Professor Andrew Koppelman who sets out to show that the purpose of antidiscrimination laws is to transform society, by not only changing the structure through state action, but also changing the conscience of bigotry. While this goal is admirable, Koppelman also reminds us that the use of antidiscrimination laws as a form of social transformation must be met with a need to strike a proper balance in considering the impact of theses laws that arguably stifle other liberal values touching on speech, association, and religion. Being mindful that the “scope is limited . . . by the very magnitude of the evil it seeks to combat,” Koppelman warns that without a proper understanding of the goals and the corresponding level of danger, antidiscrimination laws used towards social change will fail to strike a proper balance. Most importantly, Koppelman notes that antidiscrimination laws should not always trump other values, echoing the words of Edmund Burke, who said that “it is better that the whole should be imperfect . . . than that, while some parts are provided for with great exactness, others might be totally neglected, or perhaps materially injured, by the over-care of a favourite [sic] member.” While in some instances an established orthodoxy may be imposed; in other areas, religious claimants should be provided opportunity to appeal to the devices of argumentation and convince decision-makers to rule in their favor.
Outside the legal issues, the social issue must also be addressed. At its core, the faith and equality community must learn to extend itself beyond its immediate comfort zones and seize in accumulating for itself largely sympathetic, compromised voices from the other side. Christians must, among other things, understand the dignitary harms that come with a history of discrimination outlined beautifully by Lillian Faderman in her comprehensive story of the Gay Revolution. At the same time, the LGBT community must also seek to understand the position of well-meaning Christians instead of painting us all with broad strokes of indictment.
Jewish philosopher Lenn E. Goodman gets this right (see this): social and communal bonds are forged through authentic encounters with the genuine other. Moral truth and political justice are best approximated when persons bring their best arguments, their deepest convictions, and a sense of mutual respect for one another to the conversation table.
Goodman writes in his Religious Pluralism and Values in the Public Sphere
“The profit of pluralism . . . is the space it allows for individuals and groups to retain their identity and commitments, not blurring the differences that make all the difference or blunting the seriousness that distinguishes high seriousness from mere entertainment . . . [F]ruitful dialogue demands our knowing something about who we are ourselves, what we believe and care about, and how what is other actually is other.”
My paper tries to draw a balance within the gray areas of the law by advocating for an approach to protecting the LGBT community while leaving room for fundamental rights under the First Amendment. While this approach is inevitably going to upset those who want a total win for their side, I air on the side of retaining the tension in hopes that fruitful discussion can be had between both sides—as Koppelman writes:
“if we are going to have transparency, if we are to escape the solitary confinement of our own minds, then we are going to have to learn to live with moral confrontation.”
With the faith/equality crisis, we have an opportunity to establish a new framework for evaluating fundamental rights that gives “to bigotry no sanction, to persecution no assistance.”