I think Kathryn and I have many more agreements than we have differences on this issue, though that might not be apparent based on the perspectives from which we approach this issue. I would like to devote this last essay to hope: hope that Kathryn and I, both relatively young women who know the law and may be on the forefront of shaping these conversations for years to come, could try to create an ongoing forum for understanding and working toward common goals. Real respect is not based on complete affirmation of each others’ opinions or worldviews, for it is easy to give respect to those with whom you agree. But rather, I am seeking a respect between people who will, most probably, not come to a common understanding of what is God’s best for Christian faithfulness and human sexuality.
Let me underscore again that I completely agree with Kathryn when she states: “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?” This is not respect. Turning away some of the most marginalized members of a community from social services they desperately need is especially egregious for faith-based organizations that follow the teachings of Christ. As we see time and again in the New Testament, Jesus directed His ministry to the disenfranchised, the oppressed, those on the fringes of society. I have, on more than one occasion, advocated for conservative faith-based organizational leaders to support protections against SOGI discrimination in services offered to the community. Often, leaders in faith communities do not know about the very real challenges the LGBT community faces, especially the many young people who have been turned away by their families. For them to be open to supporting SOGI legislation, they first have to be educated about the tangible harms being done to the LGBT community. From Kathryn’s perspective, and honestly, from my perspective as well, this may seem silly. How could people not know about the harm suffered by the LGBT community at the hands of landlords who have denied them housing, employers who have denied them employment, and places of accommodation that have denied them services? But the truth is, there are great cultural, generational, religious and political divides in this country. Many Americans, especially those over 50, haven’t ever heard the personal stories of hardship that many LGBT people face.
For a meaningful, respectful dialogue to take place, people who have disparate views of sexuality have to be willing to come together and really listen to one another. Proximity is usually the best antidote to misunderstanding and enmity. I have seen more than one faith leader come to realize that their (conservative) theological view of same-sex relationships does not preclude them from coming to a theologically sound position of supporting the idea of SOGI legislation. I am sure that Kathryn would want to see these faith leaders change their theological views of human sexuality to become inclusive and affirming of same-sex relationships, as well. This is a reasonable thing for her to hope for. And perhaps, in time, some faith-based institutions and leaders will come to a different doctrinal stance on same-sex relationships. And many, probably, will maintain their current doctrinal views. But, especially for the purposes of this conversation, we must recognize that it is important to demonstrate to people who wont change their views on biblical sexuality that they can still support legal protections for marginalized people (with, sometimes, well-crafted exemptions for religious nonprofits to staff based on their faith precepts).
Kathryn’s language about respect, in part, concerns me. She makes the argument that a religious person or institution cannot show respect for members of the LGBT community unless they can affirm the ways in which these individuals express themselves and engage in relationships. I wholeheartedly disagree. Religious institutions often exist mainly to daily serve with respect those daily of different religions and worldviews than themselves. Respect is treating another person with dignity and care, even though there are significant, even vast differences. In our society with so many different religions, philosophical views, races, ethnicities, ethical systems, and more, we need to learn genuine respect--precisely because we do differ on so many important things.
Part of respect is language. Kathryn’s broad-stroke assumptions that all who support man-woman marriage must believe that LGBT individuals are “abominations” who should be “stoned” or “fried,” I believe, demonstrate a lack of respect for the many people who hold conservative sexual views yet deeply value that lives and human dignity of their gay and transgender neighbors. Many who hold the view that same-sex relationships are not biblically supported express their views with love and compassion. Even Justice Kennedy stated in his majority opinion in Obergefell: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” In other words, not everyone who opposes same-sex marriage does so with the hate and venom Kathryn alluded to. They do not have to affirm conduct they believe to be outside of God’s paradigm for human flourishing to be able to affirm that all people, of every sexual orientation, race, class, or identity, are children of God, beautifully and wonderfully made.
Kathryn also takes liberties when it comes to how she (mis)characterizes religious homeless shelters. I completely support SOGI laws that would not wholesale exempt religious shelters from serving everyone eligible regardless of their sexual orientation and gender identity. At the same time, in my work with hundreds of faith-based social service organizations, I have never come across a shelter, food bank, or jobs program that denied services to an individual because of their sexual orientation or gender identity. That is not to say that these instances of SOGI discrimination by faith-based social services providers (those providing housing, food, workforce training, or other such services) do not happen. I am sure there are instances where members of the LGBT community have been denied admittance to a shelter because of their sexual orientation. But I point this out simply to say that my organization has worked closely with a large segment of the faith-based nonprofit social services sector, and SOGI discrimination in these sorts of services simply is not the standard practice, nor would it be accepted or tolerated by the larger faith-based community. For example, Rev. Michael Brown, Executive Director of the Kalamazoo Rescue Mission wrote in an open letter in MLive “Because we recognize that Muslims observe different eating habits, we have attempted to accommodate this and to ensure that an alternative is available when pork is served as the main course. There are [also] persons from our community residing at the Gospel Mission who are gay or transgender and many who are not Christian. They are all welcomed to the services of the Mission.”
Religious Freedom Restoration Acts (RFRAs)
So what is a proper way to determine which exemptions should be given in SOGI for religious institutions? I have already stated my view that religious exemptions are most needed in SOGI employment nondiscrimination laws for religious nonprofit employers. I have also explained, at length, why this sort of exemption is entirely different from broad exemptions for religious businesses and social services agencies serving the community. Here is an explanation of my reasoning: I believe that that Religious Freedom Restoration Act outlines a proper balancing test for weighing the rights of religious actors vs the government’s interests. The federal RFRA establishes the strict scrutiny test- if a generally applicable law “substantially burdens” one’s free exercise of religion, only the existence of the government’s “compelling interest” can allow the burdening of the claimant’s religious freedom. In addition, the government’s compelling interest has to be fulfilled in the “least restrictive means” possible.
I would like to suggest to Kathryn that using this balancing inquiry, exemptions for religious nonprofit organizations to staff consistently and transparently on a faith basis are justified. Here’s why: a religious institution must be able to employ people who fully embody its religious mission and doctrinal practices. The ability of a religious organization to hire based on faith is central to its ability to exercise its religion without substantial burden. This is the first inquiry of the RFRA balancing test. Yet, as this current language from USAID demonstrates, even the Obama administration recognizes the vital importance of allowing a faith-based organization to exercise its faith in staffing:
“This special provision [Title VII provision allowing religious organizations to hire based on faith] for faith-based groups protects the religious liberty of communities of faith. It permits faith-based groups to promote common values, a sense of community and unity of purpose, and shared experiences through service - all of which contribute to a religious organization's effectiveness. In order for a religious organization to define or carry out its mission, it is important that it be able to take religion into account in hiring staff. Just as a college or university can take the academic credentials of an applicant for a professorship into consideration in order to maintain high standards, or an environmental organization can consider the views of potential employees on conservation, so too should a faith-based organization be able to take into account an applicant's religious belief when making a hiring decision.”
Therefore, I would argue that under a RFRA balancing inquiry, it is clear that a religious organization’s religious practices are substantially burdened if they are forced to hire employees who are engaging in conduct or expressions that are in direct conflict with the doctrinal beliefs and practices of the faith-based institution. I hope Kathryn and I can both agree on this, even if we disagree about whether an exemption is appropriate. I believe it is clear that there is harm being done to the faith-based organization when it is not allowed to hire employees aligned with its faith-shaped mission and practices. Along the same lines, there would be harm done to an organization like Believe Out Loud, a faith-based organization “that empowers Christians to work for lesbian, gay, bisexual, transgender, and queer (LGBTQ) equality” if they were not allowed to staff according to their faith-based mission and were expected to hire all Christians indiscriminately, including those whose religious beliefs did not support same-sex relationships or gender variant identity expressions.
The next inquiry is whether there is a compelling interest in passing a SOGI employment nondiscrimination act. I believe that a case can be made that there is a compelling interest to end workplace discrimination in the secular and governmental spheres for members of the LGBT community. According to the William Institute on Sexual Orientation Law and Public Policy, 15 to 43 percent of gay and transgender employees have experienced discrimination of some form in the workplace and a full 90 percent of transgender have been mistreated in their places of employment.
The final inquiry in a RFRA balancing test is whether the law is achieving its compelling interest through the “least restrictive means” necessary. With respect to a SOGI nondiscrimination law without a religious accommodation for religious organizations, I believe the law is not narrowly tailored enough under a strict scrutiny test. Providing a clarification that religious employers are still allowed to hire based on faith would not impinge on the capacity of LGBT people to be protected from adverse actions in the vast majority of workplaces in this country. In fact, if the argument is that LGBT people suffer higher levels of unemployment now because they are not protected from discrimination by law, then passing such a SOGI employment nondiscrimination act with a properly tailored provision for religious organizations to hire based on religion would still achieve the goal of protecting LGBT workers from baseless discrimination by secular and governmental employers. And such a provision could be tailored in a way as to prevent any potential abuse: a religious employer could be required to certify that it is a religious organization which considers religion in hiring and that it would substantially burden its religious exercise if the religious organization was mandated to exercise employment practices contrary to its religious precepts and practices. This certification process could be subject to governmental inquiry as to ensure that employers were not merely claiming a pre-textual reason for SOGI discrimination, as opposed to a sincerely held and consistently practiced religious reason.
Thus, I believe that SOGI accommodations are justified for religious organizations in an employment context under a strict scrutiny balancing inquiry. Specifically, I believe that such an accommodation accomplishes beautifully the “least restrictive means” part of the test, achieving both the protection of the religious exercise of faith-based organizations and the compelling interest of preventing LGBT workplace discrimination, simultaneously. Win-win might not be the right expression. After all, some staunch LGBT advocates would rather see no religious accommodations under any circumstance. And some staunch religious leaders would rather see SOGI laws never pass under any circumstance. But balancing interests is not a zero-sum game. In fact, it isn’t a game at all. Real injustices, both for LGBT people and for the religious freedom of faith-based organizations, are on the line. This may be a perfect solution to no one. But it is, or at least should be, a possible, livable solution for everyone.