Two days ago, Senator Mike Lee took to the Senate floor to explain why he could not agree to my confirmation to continue to serve on the EEOC. I did not recognize the person Senator Lee was talking about.
Senator Lee used quotes attributed to me to paint a picture of a person bent on suppressing religious liberty in this country. That is not me nor will it ever be. Those quotes were either misconstrued or taken out of context.
Senator Lee asserts that my use of the term “zero sum game” to describe the conflict that can arise between LGBT rights and religious liberty means that I believe LGBT rights must always prevail in such a conflict. Senator Lee has it completely backwards. I used the term “zero sum game” in a law review article in 2006 for the precise purpose of calling attention to the potential conflict that concerns Senator Lee and others. As I have explained, the point of using that term was to force people, particularly defenders of LGBT rights, to acknowledge that a conflict can indeed arise when those who believe homosexuality is sinful are forced to comply with a non-discrimination law protecting LGBT people. It is only if one acknowledges such a conflict in the first place that one can begin to explore what rights should be protected under different circumstances.
Senator Lee also quotes me as saying that I have a hard time coming up with any case in which religious liberty should win over sexual liberty. This is a “quote” that has been attributed to me by a reporter and, as best as I can discern, is taken completely out of context.
In 2006, Maggie Gallagher wrote an article in the Weekly Standard titled Banned in Boston in which she attributed this quote to me: “I’m having a hard time coming up with any case in which religious liberty should win.” She further goes on to quote me as saying: “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.”
Almost ten years later, Gallagher acknowledged my assertion that she had misquoted me and admitted that she did not have a tape of the interview. She insisted, however, that she had correctly captured my full position.
Gallagher reached out to interview me in 2005 about Catholic Charities in Boston shutting down its adoption services because of the state’s requirement that it not discriminate against gay couples in placing children. Unlike other people she quoted, I refused to comment on that specific situation. Instead, I noted the difficult and complicated issues that arise whenever religious groups are required to act in a manner contrary to their beliefs. That clearly did not provide Gallagher with the quote she wanted. So she moved on to ask me what the rule should be for religious individuals who are employers or business. I explained that when such individuals enter the stream of commerce, we must ordinarily expect them to comply with non-discrimination laws, even if it means hiring or serving gay people. Gallagher then created a quote extending that position to all situations of conflict between religious beliefs and LGBT rights and attributed that quote to me. This is truly ironic, given that most of the interview consisted of my explanation of why religious pluralism might require accommodations for religious organizations in certain circumstances.
Finally, Senator Lee quoted me as saying that “pockets of resistance” against LGBT rights cannot be permitted to flourish. That sounds like I am out stalking the streets at night looking for religious people and groups to stamp out.
This quote comes from a post by Americans for Truth About Homosexuality in 2010. The post quotes from my participation in a Beckett Fund gathering five years earlier. The Beckett Fund is a group that describes itself as defending “religious liberty for all — in principle and practice.” It is a group that litigates religious liberty cases, many of which I agree with. In December 2005, the Beckett Fund pulled together an informal group of people to talk about LGBT rights and religious liberty. While almost all the participants were conservative religious scholars, I was invited as one of the few LGBT scholars who was willing and interested in engaging in such a conversation. The symposium was off the record, as were the papers we submitted to guide our conversation.
Let’s assume that the words attributed to me came from the informal paper I submitted. (I no longer have the paper, so I don’t know if my words were edited.) However, as the full quote indicates, I was talking about how religious employers and business owners may feel burdened by non-discrimination laws that force them to hire or serve gay people, but that such a burden would be justified because the liberty interests of gay people “cannot be adequately advanced if ‘pockets of resistance’ to a societal statement of equality are permitted to flourish.” (emphasis added).
The fact that the phrase “pockets of resistance” is in quotations means I was probably quoting it from somewhere else, since it is not a metaphor I tend to use. But my thinking then and now remains the same. After passage of the Civil Rights Act of 1964, some business owners tried to justify not serving black people based on their religious belief that the races should not mingle. The courts did not accept their argument, concluding that individual resistance to the societal statement of racial equality could not be countenanced, even if the resistance was based on religious beliefs. I feel the same rule should apply to the religious beliefs of employers and business owners who enter the stream of commerce, whether it concerns beliefs about race, national origin, disability, sex, sexual orientation or gender identity. Exceptions for individuals who have chosen to enter the stream of commerce are hard to justify. I feel differently, however, with regard to religious organizations. Allowing such organizations to both “resist” and thrive is often essential to protecting religious pluralism.
The blog post by Americans for Truth About Homosexuality included an edited clip of a presentation I made at an event sponsored by the Family Research Council in 2008. The edited version of the clip, together with ominous partial statements pulled out from my comments and flashed across the screen, show how my efforts to engage in a sincere conversation about religious liberty and LGBT rights are contorted by those who have no interest in having such a conversation. If those clips are the best my opponents could find in my entire presentation, you can be sure there were plenty of other comments in which I made my commitment to religious liberty quite clear.
During the confirmation process, I asked Senator Lee several times to meet with me so he could hear my views directly. He chose not to do. It is unfortunate that I did not have the opportunity to explain to Senator Lee how the quotes he was using failed to capture my full position.
Senator Lee and others may feel they have kept a rabid opponent to religious liberty off the Equal Employment Opportunity Commission. They are wrong. It is true that they have ensured that someone who cares deeply about bothreligious liberty and LGBT rights won’t be protecting those interests from the perch of the EEOC. But I have fought for the civil rights of LGBT people, religious people and others for years. I won’t be stopping now.
First published on my Medium page.