« Response to "SOGI Laws and Religious Freedom for Faith-Based Organizations" »

I would like to begin by noting that it is an altogether singular experience to be called upon to argue for one’s right to do what most of society takes for granted--to participate in society without having to think about whether you will face discrimination based on who you are. For my esteemed colleague in this conversation, this is an academic discussion. For those who are LGBT, the direction this country ultimately takes on this question will have far ranging consequences for their lives and ability to contribute as productive members of society. I ask that my readers keep that in mind going forward.

I have no doubt that Ms. Langston is attempting to set forward a framework of based on mutual respect and understanding as she asserts. I am glad to see that she does not support discrimination in housing and credit. Shelter, along with food and water, is among the most basic of needs, and the inability to find housing essentially precludes individuals from participation in society. Similarly, in our credit based economy, cutting off groups from access to credit makes participation difficult. A commitment to the basic dignity of all humans requires that we do not prevent some from accessing the tools necessary to support themselves and to find safe housing.

That said, Ms. Langston’s theology of mutual respect begins to break down before she even fleshes it out. The exemptions she suggests for religious shelters would, in many communities, leave homeless LGBT people and LGBT survivors of domestic violence without a roof over their heads.

Ms. Langston asserts that without religious exemptions, faith-based organizations will be harmed, however, before she has begun to provide support for that assertion she has already demonstrated a way that these exemptions will harm LGBT people. If we are building a theology of mutual respect, how is leaving LGBT people to sleep on the streets because a religious shelter refuses to take them a sign of respect? If we cannot respect the dignity of LGBT people on the most basic level of saying that they deserve a roof over their heads and a dry space to sleep as much as straight people, are we not saying that religious groups have a right to demand respect while refusing to offer it in turn to LGBT people?

Fundamentally speaking, if we are going to build a theology based on mutual respect, that requires both sides to actually respect each other and to discuss our differences as equals. Ms. Langston writes in terms of, “historical understanding of human sexuality,” and, “orthodox sexual ethic,” but let us be clear as to what that language actually means.

Depending on the faith tradition, this language means that LGBT people are irreparably broken because of the Fall, mentally ill, willful sinners deserving of the fires of hell, abominations, depraved, reprobate, people who should be “fried” as in Sodom and Gomorrah, or who should be stoned. It’s difficult to have mutual respect when one party considers the other party’s very existence to be an abomination and a sin against God. That looks very much like one child taking all the toys and then demanding respect and sharing when the other child is given a single toy. It’s respect in a single direction, and LGBT people are not the recipients of that respect.

As an aside, it’s not entirely clear that what is being presented as the historic understanding of human sexuality actually represents the historical reality. For one, the word “eunuch” as used in the ancient near east--including in the Bible--referred not only to men who had been castrated, but also to gender-variant individuals not unlike the hijra in modern India--people who would be understood as transgender in our modern Western taxonomy. For another, there is some indication that the early church practiced same-sex marriage rites that were lost to time (for a brief lay overview of John Boswell’s research, see here). This topic is far too lengthy to discuss here, but I bring it up to note that appeals to historical understanding of gender and sexuality within the church are not necessarily so clear as is often suggested.

Continuing on, I find it rather curious that so much of Ms. Langston’s mutual respect framework is based on the position of the LDS, given that the LDS policy is to require children of same-sex parents to disavow their parents in order to join the Church. This is the same institution that exerted enormous political power to campaign for the passage of Proposition 8 in California and the banning of same-sex marriage. Where is the mutual respect when they are denying children of LGBT parents the priesthood and entrance into the highest heaven based on the sins of the parents? Where was the mutual respect when they used the considerable power of the Church to impose church doctrine upon the civil sphere?

If it seems that I’m harping on the issue of mutual respect, it is because this respect only seems to go one direction. If it was merely the right to believe that LGBT people are sinful that LGBT people were asked to respect, that would be one thing. That's an area where we disagree, but I will absolutely fight for the religious freedom right of faith traditions to teach that it's a sin, even as I try to convince them otherwise. That's not all that's being asked, however. LGBT people are being asked to respect a right to faith-based discrimination in the workplace, from the businesses they wish to patronize, in their access to faith-based social services, and in federally funded institutions of higher learning, and what do they get in return? Access to credit and a roof over their head? Mutual respect and harmony does not mean one side demanding everything and giving next to nothing in return. 

I’m going to skip over the legal discussion because I believe that I’ve addressed that in my initial essay. I do want to note, however, that federal faith-based partnerships, which I agree with Ms. Langston are a good thing and should be encouraged, do not exempt the faith-based organization from following race, gender, or disability non-discrimination laws. That means, for example, that even if the organization believes that race mixing is a sin, they still cannot make hiring and firing decisions based on race. And, while those faith-based organizations can require employees to share the faith, they are required to serve all in the community, regardless of race, religion, or disability status.

We’re already prohibiting faith-based hiring discrimination based on race, gender, or disability status, even when those prohibitions conflict with the organization’s doctrinal creed. The question is not whether we can prohibit faith-based organizations from discrimination; the answer to that is that yes, we can. The question is whether we are going to privilege certain types of discrimination.

The final question I want to address is this. Where is the harm? Ms. Langston repeatedly asserts that without laws legalizing faith-based discrimination, people of faith will be harmed. She does not, however, demonstrate any concrete examples of harm caused by banning faith-based discrimination. If she is going to assert that not being allowed to discriminate harms the practice of religion, she needs to provide some sort of evidence that the harm not only exists, she needs to explain why that harm is any different than the harm caused by prohibitions on race-based discrimination. Merely asserting it does not make it so.

On the other hand, we can easily see where the harm is if faith-based discrimination against LGBT people is permitted. People can lose their jobs or be unable to find one, they can be refused service in restaurants and stores and their access to social services that are covered by faith-based organizations in their communities will be cut off. For LGBT young people who are expelled from faith-based colleges because of who they are, they are out tens of thousands of dollars and have the expulsion as a black mark on their record that can negatively affect their ability to transfer to a new institution and to pass background checks in the future. Those are very real harms.

Now, I want to be clear, I do not believe that Ms. Langston thinks that LGBT people should end up on the streets because they are unable to find work. She seems to be genuinely concerned for the wellbeing of LGBT people. That said, if you are proposing a faith-based discrimination framework that is going to harm LGBT people and make it difficult for them to work and support themselves, it’s necessary to demonstrate that failure to do so will bring actual harm to faith-based organizations.

And so I end with that final question. Where is the harm?

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Apologies to Ms. Langston, Mr. Heie and the readers for the tardiness of this post. Unfortunately illnesses don't pay attention to deadlines.


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Reader Comments (2)

I feel compelled to respond to Ms. Brightbill. I never suggested that we should exempt shelters, religious or otherwise, from serving LGBT people. I specifically addressed only employment exemptions in my first post, as the question asked us to respond to housing, consumer protection and employment. That is what I responded to. In my second post, I responded explicitly to Kathryn's initial essay and completely agreed with her that there should be public accommodations laws that protect LGBT people from discrimination, and that faith-based orgs should not be exempt from serving the LGBT community. I am not sure how she draws these conclusions, but I do hope the readers will note, accurately, where I stand. I support SOGI laws and advocate for appropriate accommodations specifically in employment contexts for faith-based nonprofits.

December 14, 2015 | Unregistered CommenterChelsea Langston

Dear Ms. Brightbill,

I generally support the moral and legal framework of principled pluralism Ms. Langston outlined. I also find persuasive most of the implications of it that she laid out for protecting religious organizations and persons who identify as LGBT from wrongful discrimination.

Because Ms. Langston thoroughly responded to your initial essay and your response post to her essay, I would like to focus on a specific underlying issue.

In terms of SOGI nondiscrimination laws, can a workable line be drawn between status and conduct or identity and expression in defining the class of protected persons? You appear to reject this distinction throughout your essays, but I question why the law must reject it. Underlying the integration of sexual identity and expression is a deeper view of the human person and human flourishing. Underlying the separation of sexual identity and expression implicit in historic Christian teaching is also a deeper view of the human person and human flourishing. Is it appropriate for the law to preference one of these views over the other, especially by way of nondiscrimination rules?

If a workable line cannot be drawn between status and conduct or identity and expression vis-à-vis the formulation and application of SOGI nondiscrimination laws, then those laws can easily become blunt instruments to advance certain views on human sexuality and flourishing over others. Just as problematic, these laws move forward rhetorically under the banner of equality, which can obscure the reality that in application they sometimes amount to government endorsement of certain views on human sexuality over others. Many advocates and supporters of LGBT identities and expressions may be pleased with the outcome of this indirect means of advancing of their cultural-moral-legal goals, but I have concerns about the lack of transparency in terms of effect when nondiscrimination rules don’t distinguish protections of identity from protections of expression.

It seems that SOGI nondiscrimination laws could be drafted in such a way that they prohibit adverse treatment of LGBT individuals when such treatment is based upon their identification as LGBT. However, generous space for exemption and accommodation for religious organizations and conscientious objectors could also be written into these laws in numerous ways. One way would be clarifying that when a contested act of discrimination can be directly linked to the organization’s or conscientious objector’s views on appropriate sexual expression, these laws do not apply, or at least don’t usually apply.

For example, SOGI nondiscrimination laws should not obligate a Catholic pregnancy center to hire a woman in a lesbian relationship when the organization holds all of its other employees to confessional and conduct standards compatible with the teachings of the Catholic Church—in this instance it is not her sexual orientation that made her ineligible for employment but rather her rejection, in practice, of the teachings of the Church on marriage and sexuality. Clearly this is an example of a religious organization basing an act of discrimination on conduct and not identity. Suppose that same woman sought reproductive services, became pregnant, and then found herself in a dire situation without support and needed help with her pregnancy. Suppose she then went into this same pregnancy center not as an applicant for a job but now as a patient seeking help. Suppose further that the pregnancy center turned her away when she disclosed that she identifies as a lesbian. Couldn’t we at least say that the nature of the discrimination in these two hypotheticals is quite different not just in degree but in kind?

My broader argument is that when a contested good, service, employment opportunity, etc., if granted or offered by a religious organization to an LGBT person, would convey affirmation of a contrary understanding of human sexuality and flourishing in that very act of granting or offering, SOGI nondiscrimination laws should not apply. This principle could be put into effect by allowing religious organizations to avoid actions/decisions that would affirm LGBT expressions even as these laws also protect LGBT persons from adverse treatment based on their identity. Do you find anything workable is this construal of these issues?

I am grateful to you and Ms. Langston for investing your time and energy to engage one another in this venue.

Nathan

December 24, 2015 | Unregistered CommenterNathan Berkeley

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