The Trump Administration has brought encouraging changes to America in the direction of restoring the religious liberty Americans have historically known. But the situation in today’s world can change quickly, as the coronavirus pandemic shows. This was made clear by a hearing of the House Committee on Oversight and Reform concerning the Administration’s regulations to protect religious liberty on February 27.
These regulations are aimed at undoing the Obama Administration’s effort through regulations to make sexual orientation and gender identity (SOGI) antidiscrimination categories apply to government contractors, and the infamous “dear collegue” letter to school administrators to open school rest rooms to both sexes (by recognizing “transgender” students as belonging to the opposite sex). In general the Obama Administration sought to expand the SOGI antidiscrimination regime in federal law. The title of the hearing “The Administration’s Religious Liberty Assault on LGTBQ Rights” was a direct condemnation of religious liberty, but at least recognizes that it is religious liberty that is being attacked, rather than a false concept of it, as is commonly done by leftists and the news media.
In the background, as well, is the proposed Equality Act, a national SOGI law which, like state and local SOGI laws, would surely be interpreted to prohibit discrimination against homosexual and transgender behavior, as well as against LGBT persons, but unlike state and local laws, has no religious exemptions, and indeed, amends the Religious Freedom Restoration Act of 1993 (RFRA) to remove any conscience protection it would afford against SOGI claims. A related proposed Do No Harm Act likewise prohibits conscience objections to abortion, and also effectively condemns the religious conscience against abortion as harmful.
A Democratic President and Congress would quickly rescind Trump’s advances to protect religious freedom, and enact the Equality and Do No Harm legislation, likely as their first priority. How likely such a political outcome is we cannot know at this point, but it is something Christians must consider with a firm will to obey God at all times and places.
Two panels of witnesses responded to the committee’s questions, with witnesses predominately speaking against religious liberty (as might be expected from the name chosen for the hearing and the Democratic majority). Republican Congressmen and witnesses favorable to religious liberty emphasized that religious belief informs all of life, and those opposed emphasized the pain that the religious doctrine concerning homosexuality causes LGBT identifying people. Committee members generally questioned witnesses favorable to the member’s own viewpoint.
The committee heard from two panels. The first testimony was typical of the rhetoric and inconsistent thinking that followed, which the public is supposed to accept without a rather minimal degree of thinking through. Rep. Sean Patrick Maloney of New York began by saying he hoped that “the day will come” when he and other LGBT identifying persons “won’t have to come in here like supplicants seeking our basic rights,” nor treated to “expressions of discrimination dressed up as religious liberty.” Yet what he and other LGBT advocates seek is not rights that everyone else has, but freedom from disapproval and complicity in personal behavior, which no one else has. For that, indeed, he requires special action from the state. The attack on “expressions of discrimination” causes one to wonder whether, like many, he favors suppression of speech condemning homosexuality, and forced speech to support it. Nor is it reasonable to claim that religious liberty is only a pretext if appeals to religious liberty are appeals of sincere religious belief, as LGBT advocates and their supporters do commonly acknowledge. What they are really seeking is indeed an LGBT agenda, which must involve suppressing the (religious) rights of others (the opposite of what is claimed).
Maloney then testified of his experiences raising children with his partner. He testified that he and his partner were sought out for a child no one else would take, and claimed that same-sex parents are sought out for such children. He believes that “when you allow people to discriminate against those [same-sex] couples, you deprive children of good moms and dads and families who are going to love them, and when you dress it up as religious liberty you simply sanction discrimination and deprive those children of a home that they deserve.” Yet this is hard to understand if in fact same-sex couples are sought out by adoption and foster care agencies and many such agencies provide children to same-sex couples (which they do). What he was really asking for in saying that the state must not “allow people to discriminate” is that the state must require all agencies to provide children to same sex couples. He hardly established that same-sex couples are blocked from raising children in need of homes if religious adoption and foster care agencies do not provide them, or that religious agencies should be closed, reducing the chances that children will find homes or that couples seeking children to raise will find them.
Representative Mark Takano of California said that the House LGBT Equality Caucus, of which he is a co-chair, is committed to ensuring “dignity and respect” for everyone regardless of SOGI status. Using the familiar (and largely vacuous) belief/action dichotomy for religious liberty, he said he supports “robust” religious expression in public, but believes SOGI categories should be applied to organizations receiving federal dollars. Such organizations should treat “everyone fairly,” and not “use religious liberty as a reason why it would discriminate.” Yet the Constitution provides for “the free exercise of religion,” and a religious organization cannot be religious unless it can function by religious standards. This is not “privilege,” as LGBT advocates maintain – everyone has religious liberty. It is Takano’s own idea that “fairness” means no adverse judgment (i.e., discrimination) against LGBT behavior, which he wants to be law, while much other personal behavior can be discriminated against. It is, as noted above, LGBT behavior which is being privileged against adverse judgment, implicitly attacking religious doctrine against homosexuality as well as practice. He also noted that the Trump Administration “had made legal arguments before the Supreme Court that would limit nondiscrimination protections under Title VII which exists to prevent people from being fired for sexual orientation.” Yet Title VII of the Civil Rights Act only mentions sex. The Obama Administration re-interpreted “sex” in Title VII to include sexual orientation and gender identity, while no one imagined that “sex” included such a thing in 1964, and surely would have been unanimously opposed or nearly so if it had been suggested. The Trump Administration simply returned to the original intent of Congress.
Representative Mike Kelly of Pennsylvania spoke in favor of religious liberty for adoption and foster care agencies, and while giving good testimony, he showed, as is common today, the defensive position that advocates of religious liberty are in at the present time. He pointed out that adoption agencies “started in the faith based community.” He referred to the legislation he supports, H.R. 897, the Child Welfare Provider Inclusion Act, which would protect child adoption or foster care agencies from government discrimination based on the exercise of the “sincerely held religious beliefs or moral convictions of the provider.” He emphasized that it does not restrict who agencies can provide children to in any way. He said that the prevailing sense of the committee hearing was that “unless you believe what I believe, you are not entitled to provide loving homes for little boys and girls.” Child welfare agencies should be free to follow their religious beliefs and moral convictions “not to take care of a political issue, but to take care homeless children that are looking for a loving home.”
Representative Joseph Kennedy III of Massachusetts, sponsor of the Do No Harm Act, delivered perhaps the most impassioned testimony, which also showed perhaps best the arbitrary thinking of pro-LGBT advocates with respect to religious liberty. He said that the hearing should expose “this dangerous assault on LGBTQ Americans.” He conceded that the Religious Freedom Restoration Act was passed in 1993 with “overwhelmingly bipartisan support.” It was occasioned by the Supreme Court overturning in 1990 an earlier decision from 1963, Sherbert vs. Verner, which acknowledged a constitutional standard for religious exercise of requiring law to have a compelling state interest, applied in the least restrictive way, if it restricts religious liberty. The ceremonial use of peyote by Indians in Oregon was at issue, and the court found they had no exemption for an Oregon law against the use of peyote. Indeed, the court specified in its Employment Division vs. Smith decision that law could prohibit religiously required action, or require religiously forbidden action unless it was specifically targeted at religious belief and practice. RFRA was enacted to reestablish at a statutory level what the court had taken away at a constitutional level. Kennedy seemed happy with the act as far as it protects what many liberals and leftists would consider oppressed minorities, but not if it protects traditional religious sexual morality.
He said RFRA had “morphed into something far more dangerous” than the Smith decision. “Instead of shielding vulnerable Americans from persecution, this has now become a sword used to marginalize vulnerable communities,” apparently because it protects what he thinks are oppressive ideas. He was keen on claiming that unless religious believers take action that they believe to be sinful or evil, others will suffer. In this way, he makes those who suffer for their religious beliefs into victimizers, implicitly attacking the beliefs themselves. Meanwhile persons requiring action against their biological sex and traditional chastity are made into victims. This would include, apparently, the testers sent by LGBT activists to require wedding, photography, or bakery providers to violate their consciences on pain of legal action, women seeking abortions they could easily get elsewhere (thus putting to death unborn or even newborn children), and biological men who claim they are women seeking accommodation in shelters for homeless and abused women. In fact there has been no change either in RFRA or its interpretation, rather Kennedy and the LGBT leadership simply do not like the beliefs it protects. .
The second panel showed a similar use of emotional rhetoric to trigger liberal/left biases and mislead the general public, as well as a lack of basic logic. That will be reviewed in a subsequent article.