Earlier this month, Chai Feldblum, whose renomination as EEOC commissioner is stalled due to her positions on what should happen when considerations of gay dignity collide with considerations of religious liberty, tweeted: “After months of having my views misrepresented, I am finally speaking for myself.” She speaks for herself in this article called “What I Really Believe About Religious Liberty and LGBT Rights.”
In her article, Feldblum tries to position herself as a moderate on the issue of gay dignity vs. religious liberty. Moderates, she says, are those who look to accommodate both sets of rights, rather than adopting a “winner-take-all” attitude. She cites Justice Kennedy and his opinion in Masterpiece Cakeshop v. Colorado ( a punt, basically) as the model of moderation in this area.
Feldblum sees the winner-take-all mentality — the insistence that one side must always win and the other must always lose — as extremist. Moderates like Justice Kennedy reject it. And Feldblum assures us that she’s a moderate, not an extremist.
But this what Feldblum said about the issue to Maggie Gallagher in 2006:
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. . . .
I’m having a hard time coming up with any case in which religious liberty should win.
In the past, Feldblum has said Gallagher misquoted her. She does not repeat this claim in her current article. She doesn’t repudiate the quote. She just pretends it does not exist.
If we consider Feldblum’s 2006 quote in conjunction with her 2018 article, we must conclude that Feldblum is no moderate. Rather, like the extremists she now wants to distance herself from, Feldblum adopts a winner-take-all attitude, insisting that one side (gay people) should win almost every time, while the other side must lose because that’s the only way, realistically, to affirm the dignity of gay people.
It’s not a question of balancing or accommodating, Justice Kennedy style. The imperative is “to affirm the dignity of gay people.”
In her article, Feldblum finally manages to come up with a case in which religious liberty “should win.” She says:
A priest, a pastor, an Orthodox Jewish Rabbi, an imam or any clergy person can never be forced to perform an inter-faith marriage or a marriage between two same-sex partners — because the First Amendment appropriately protects the right of members of the clergy to make such decisions based on their faith alone.
I’m not sure why Feldblum had “a hard time coming up with” that case when Gallagher interviewed her, but I assume Feldblum means what she says about the clergy not having to perform same sex marriages. What about the religious rights of non-clergy, though?
In that case, EEOC insisted that a funeral home engaged in unlawful discrimination when it fired a male funeral director who, in the process of “transitioning” to female, dressed as a woman at work. The employer argued that the EEOC’s discrimination claim must be considered in light of the Religious Freedom Restoration Act (RFRA), which prohibits the government from enforcing a law if the law substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling interest.
Considering the discrimination claim in light of RFRA entails just the kind of balancing and accommodation, Feldblum now says she favors, and Feldblum references RFRA in article, though not by name. However, Feldblum’s EEOC tried to read RFRA into oblivion. It argued that because Congress intended RFRA to apply only to suits in which the government is a party, and because the “transitioning” funeral home director (represented by the ACLU) intervened in the case, RFRA cannot apply.
But the EEOC can always ask the ACLU and like-minded groups to intervene in EEOC cases whenever a defendant raises a RFRA defense. Such groups will be willing to comply, especially since little work will be required of them — they can simply piggyback on the government’s prosecution. If such intervention eliminates RFRA from the case, as Feldblum’s EEOC argued it did, RFRA’s protections would become a virtual dead letter.
Quite apart from its cynical attempt to render RFRA a dead letter, Feldblum’s EEOC showed no desire to balance gay rights with religious liberty interests or, indeed, common sense. The funeral home was willing to employ the transitioning director. The owner just didn’t think having a male funeral director dress up like a woman during a funeral service is consistent with his desire to honor God by serving mourners in ways that comport with his religious views.
A decent respect for the owner’s religious views, not to mention the dignity of the funeral service and, undoubtedly, the wishes of mourners in some instances, would have caused the EEOC to refrain from bringing a lawsuit to coerce a funeral home into letting a male funeral director dress like a women during a service. One can transition from male to female and still occasionally wear a suit.
But Feldblum’s EEOC did not refrain. It coerced.
Now, consider Feldblum’s deciding vote in the case of Todd Lusardi. The case did not involve the assertion of religious liberty rights, but it well illustrates Feldblum’s extremism in the pursuit of LBGT rights.
In this case, the EEOC decided that the Department of the Army discriminated against Todd Lusardi when it denied him equal access to female restroom facilities. Though he had changed his name to Tamara, Lusardi was genetically male and had even retained (at least at the time of the events in question) male genitalia.
Feldblum’s EEOC actually granted Lusardi more relief than he asked for. It went out of its way in a footnote to opine that his employer unlawfully deprived him of the “use of common locker and shower facilities that non-transgender employees could use.” In other words, according to Feldblum it’s unlawful sex discrimination to bar a man who thinks of himself as a woman from sharing locker and shower facilities with women.
This is not a moderate position.
In her article, Feldblum emphasizes that her father was an Orthodox Jewish Rabbi and that on her mother’s side, she comes from a long line of Hasidic Rabbis. “I grew up in a home in which religion and God were the defining aspects of our daily lives,” she states.
We all know people who were raised in strict religious households who, as adults, detest religion. I don’t assume that Feldblum is like that. I take her at her word that she respects religion.
The problem is that Feldblum’s public record — including her interview with Gallagher and her conduct at the EEOC — shows that her respect for religion doesn’t prevent her from wanting to run roughshod over sincerely held religious beliefs when they conflict with her overriding mission of maximizing “gay dignity.”
It’s a respectable mission for an activist, but it’s not a moderate one.