Domestic Religious Liberty

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Equality Act

December 28, 2018

Institutional Exemptions and the Sacrifice of Principle

Without a doubt the most contentious issue before the Evangelical and social conservative worlds today is the “Fairness for All” proposal advanced by the Council of Christian Colleges and Universities and the National Association of Evangelicals, in conversation with LGBT activists. Essentially, the proposal offers support for making sexual orientation and gender identity (SOGI) a criterion in civil rights law and public policy, while exempting religious institutions. While NEA and CCCU are not specifically endorsing the particulars of the proposed Equality Act, which would be a national SOGI law (making sexual orientation and gender identity an anti-discrimination category in federal law), they are signing on to the principle of making SOGI law apply to individuals but not religious institutions.

While this proposal will be presented in the language of “fairness,” “pluralism,” and “compromise,” it in fact represents a surrender in the struggle to advance religious freedom or liberty of conscience against the legal mandate to accept homosexuality. The whole point of the struggle is that it is wrong to require actions believed to be sinful or evil. For traditional Christians, facilitating homosexual behavior, or now, behavior that identifies with the opposite sex, is indeed sinful. As this writer has often said, it is clear from the words of Jesus (Matt. 18:7) that Christians (and truly, in responsibility to God, everyone) are forbidden from facilitating sin. Additionally, it should be intuitively obvious to everyone that one should never be complicit in an action one believes to be evil.

Are the NEA and the CCCU holding to the principle that complicity in evil is wrong? Evidently not. SOGI law and public policy, as it is generally interpreted by the courts, requires complicity in homosexual and transgender behavior. This means that Christian professionals and business persons must facilitate this behavior, which is sinful, and which it is sinful to contribute to. Why should Christian organizations insist on exemptions for themselves, but not individual Christians? It cannot be that they believe that it is ever right to sin. One seems drawn to the conclusion that the leaders of these organizations believe that tolerating homosexual behavior would be unacceptable to their clientele, and would leave their continued existence in question. On the other hand, political and legal pressure is such that they feel they must accept that LGBT identities be included in civil rights law. Regardless of how they rationalize it to the world or themselves, they are practically accepting either that it is not sinful to facilitate sin, or that homosexual and transgender behavior is not sinful.

For what are these fine Christian institutions training their students? In the world, they will be doctors, nurses, teachers, business managers, and perhaps even some florists, bakers, and photographers. Are these schools training their students to facilitate sin? It is rather pointless to forbid sin in one’s own house, and maybe teach that it is evil (as American law, so emphatically at the present time, allows one to do) but implicitly condone it in the wider world.

Thus, if it is “fairness” for institutions to discriminate against homosexuality and transgenderism, then it is fair for individuals as well. And we must discriminate against personal behavior; without it, the worst crimes would be legal. Nor can we restrict privileged behavior to consensual sexual behavior, as many advocates of the sexual revolution might want. There is no way to know what counts as sexual if sexuality is self-defined, as we now see with transgenderism.

This shows the essential problem with homosexuality and transgenderism as civil rights categories, namely the incorporation of personal behavior and feelings into personal identity. Personal behavior and feelings are extremely important to people, but they cannot possibly be held to be “free” (in the sense of immune from adverse judgment) or equal. One can argue that skin color is unimportant and can be treated as equal, or that people of different sexual anatomies should be treated as equal (even if it is not plausible to hold that there are no differences in interest or ability). But different personal behaviors cannot be equal, and should not be immune from adverse judgment (i.e., discrimination).

These considerations dispose of the claim that there is a question of “fairness” between Christians and social conservatives on the one hand, and homosexuals and persons identifying as “transgender” on the other. Indeed, unfairness is being practiced against social conservatives, who are being required to take actions they believe to be evil. Opposition to SOGI requirements is not a claim to “discriminate against gay people,” or persons identifying with the opposite sex, but to discriminate against their behavior, which cannot possibly be protected from discrimination on the basis of equality.

The fusion (really the confusion) of feelings and behaviors with personal identity and the resulting claim of freedom, equality, and respect for one’s behaviors is a natural part of the corruption of the idea of natural rights, which is the touchstone of liberal civilization. This corruption was well analyzed by Aaron Rhodes, a prominent activist for religious freedom and natural rights in Europe, and summarized in an article by this writer in the spring. Rhodes maintains that for many people, “rights” are not the true natural rights which are held by everyone and enumerated in the Constitution, but policy positions extremely important to certain groups, which are then presented as “women’s rights,” “gay rights,” “rights of the disabled,” etc. Notice that the very use of the term “rights” puts opponents in the wrong, cast as opposing freedom and equality. But opposing such “rights” is really the demand of both freedom and equality.

Heritage scholar Ryan Anderson notes the same thing in a recent article. He identifies a central problem as a corrupted idea of “discrimination,” which casts many commonsense judgments as “discriminatory.” This then affects far more than strictly sexual behavior. Gravely threatened, Anderson said, are the “privacy and safety of women and girls” in rest rooms, liberty of conscience for medical professionals (e.g., against participation in sexual anatomy reconstruction), and the activities of myriad other professionals and business persons.

As noted above, there is no point in beginning to fight for religious and conscience freedom if we are willing to take the objectionable actions when so required. We ought to obey laws we don’t like or think are unwise. Only if law requires something evil should it be disobeyed. And there may be a national SOGI law when there is a Democratic President and Congress — a not unreasonable possibility in the near future. Then faithful Christians will become an underclass, unable to contribute our talents to society. Numerous Christian institutions in which enormous love, work, and investment have been made will have to either close or be complicit in sin. It is that thought which is surely motivating the CCCU. But that does not make it right to be complicit in sin.

Whatever course politics and law take, we must continue to argue that justice mandates that people not be required to take evil actions. But the requirement to sin is exactly what the NEA and CCCU have accepted.


2 Responses to Institutional Exemptions and the Sacrifice of Principle

  1. Art says:

    Thank you for the commentary. It is spot on!

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