Impassioned and Misleading Rhetoric against Religious Liberty – Part 2

An earlier article reviewed the testimony of Congressmen to the House Committee on Oversight and Reform regarding Trump Administration regulations to protect religious liberty against claims of sexual orientation and gender identity. In a second panel, the committee heard from witnesses it had called to address the issue. The Democratic majority committee called predominately pro-LGBT witnesses, who exhibited the same emotional and misleading rhetoric as the first panel, and which is the heart of the homosexual and transgender claim to justice.

Ernesto Olivares, who had been placed by a Christian foster care agency, and spent five years in the foster care system, testified first. He said the youth and the staff in the shelter in which was first placed used “derogatory language” about homosexuality. He said that at the foster home where he was later placed he found it difficult to go to church because it was “awkward and hurtful to hear that I would go to hell.” He felt he had to go because otherwise he might be “made fun of, or seen as weird.” He also said that LGBTQ youth are twice as likely to report being treated poorly. This would suggest that the state should regulate adoption and foster care agencies closely to prevent unkindness. He seems to believe that the Christian agency should have been required to protect him from “discrimination” and “anti-gay bullying.” He supports legislation (the Every Child Deserves a Family Act, H.R. 3114), requiring all foster care agencies to prohibit discrimination, not only with respect to sexual orientation and gender identity, but also with respect to religion. This would mean the secularization of all agencies, since any religious regulations or instruction could be classed as “discrimination.” He wants all agencies to be required to provide “affirming services to every LGBTQ child in foster care.”

This could easily mean that any expression of exclusivist religious doctrine or traditional sexual morality would be prohibited in the presence of any child in any foster care agency, since anyone can claim to be “LGBT.” As with other pro-LGBT witnesses, reports of suffering appear intended to elicit support for extreme measures at state intervention in religious organizations, civil society and personal life.

Evan Minton, the second witness, said he had been denied a hysterectomy at a Catholic hospital to change sexual identity from being a woman to being a man. Minton said that there had been a diagnosis of gender dysphoria and that doctors had determined that a hysterectomy was medically necessary. He claimed he did not know much about the hospital which he went to. Minton said the decision to cancel his hysterectomy because he was “transgender” left him “so devastated that I collapsed to the ground.” He believes that the hospital had refused to treat him “simply because of who I am.”

Minton’s relating of his experiences is an example of the abuse of language common in LGBT rhetoric. In fact, Minton had a healthy uterus. Minton said he was denied “the care that I needed,” yet there was nothing wrong with Minton’s body when she was a biologically intact woman, only with her belief (and apparently that of the doctors she consulted with), that she was in fact a man because she felt that she was a man. Even though she “underwent a hysterectomy at a different hospital,” nevertheless “the experience leaves scars.” This seemed to be the “basic right” claimed by all the pro-LGBT testimony at the hearing, the right not to be offended.

Minton said that he had no idea that the Catholic hospital would claim that “religious doctrine permits them to deny medically necessary care.” This is another claim that the religious conscience is being “privileged,” when it is a natural part of being religious, and everyone has religious freedom. Additionally, it well in line with a realistic understanding of sex. Like most pro-LGBT advocates, Minton refers to conscience objections related to sex as “refusal of care,” and said that care should be based on the will of patients to “broaden” health care, not in “limiting” it by respecting the conscience of the provider. The burden of what he said is that there is a moral and legal obligation to take an action understood to be sinful and evil. The mere statement of this shows that it is repugnant. Indeed, the claim that patients should prescribe their own treatment against the judgment of the provider would be considered ludicrous, if it did not concern a matter related to sex.

The fact that Minton was mentioned as one case justifying the Trump Administration’s conscience rule “truly knocked me down for almost a year.” Again we see the basic claim not to be offended, which tends initially to put any critic of LGBT claims on the defense, but is in fact an arrogant demand to get what one wants, regardless of reality. He said that “the Trump Administration’s rule labels me as a threat.” But he is, because he is demanding what he wants regardless of objective reality (in this case, the physical reality that sex is based on, and the inviolability of the conscience of others). Minton really presents personal pain as a justification for an arrogant claim against any other considerations.

Sarah Warbelow, Legal Director of the Human Rights Campaign, said that “the right to believe and worship or not are core American values.” But she said that “the Trump Administration has consistently attacked our community’s most vulnerable, employing a public policy strategy designed to divide and otherize.” Yet the movement for LGBT liberation can hardly present itself as representing victims, if the rights it demands are based on wishes and inclinations (i.e., sexual desire and “gender” independent of one’s body), and the right not to be offended. She claimed that the Trump Administration was trying to “redesign the evidence based approaches to our nation’s administrative infrastructure,” (apparently suggesting that the religious conscience is likely to be irrational, and people should be required to accommodate what they believe to be sinful or evil).

Warbelow said that the Administration’s case for its religious liberty regulations was based on an overly broad interpretation of the Hobby Lobby, Trinity Lutheran, and Masterpiece Cakeshop decisions from the Supreme Court. It may be that those decisions, although they are all positive for religious liberty, do not give an adequate basis for religious liberty, but they are necessary in the absence of a reasonable interpretation of the First Amendment, which guarantees religious exercise as well as belief. It might be added that the Constitution’s reference to “exercise” surely does include life in the public square, as evidenced by the clear intention of its principal author, James Madison. Contrary to what was maintained in the questioning that followed, his Memorial and Remonstrance against Religious Assessments, quite clearly states that our allegiance to God is superior to our allegiance to the state.

She referred to Lyndon Johnson’s Executive Order 11246, issued shortly after the passage of the Civil Rights Act, as being “severely limited” by the Trump Administration in its revisions of the order’s “implementing regulations.” The order itself does not mention sex, let alone sexual orientation or gender identity. Presumably the “implementing regulations” include Johnson’s Executive Order 11375 (which does prohibit sex discrimination by federal contractors, but nothing else related to sex), and two orders from Barak Obama, Executive Order 11478, and 13672, which do prohibit discrimination on the basis of sexual orientation and gender identity in hiring and firing by government contractors. This the Trump Administration would alter to allow religious commitments to be used by federal contractors in employment decisions, an entirely reasonable regulation, as religious organizations must function by religious standards.

Hiram Sasser of the First Liberty Institute testified in favor of religious freedom and liberty of conscience. He referred to President Clinton’s comments on signing the Religious Freedom Restoration Act, that “our founders cared a lot about religion … We live in a pluralistic society with millions of Americans sharing different views about family, faith, and conscience. In such a multicultural society, we must pursue tolerance and mutual respect. We can do this without resorting to a zero sum game of political power.”

Sasser noted that the religious conscience is protected with respect to military service even when the contrary government interest is “the very preservation of the state itself.” Indeed, one’s person’s exemption from military service can lead to the death of a soldier who executes his military duty. This is surely the greatest “third party harm” there is. Nevertheless, conscientious objectors have received protection even in this extreme situation, and action against conscience was not required. He noted that conscience protections “have a long history in our country, in a fully developed body of law.” He pointed to the Religious Freedom Restoration Act as a broad religious accommodation “in that it applies to all federal law.” He said that “protecting minority faith positions is the key to liberty for us all, because we never know when we will be in the minority faith position.” He said that in religious liberty conflicts “the executive branch should defer to Congress.” Consequently, the Trump Administration’s efforts to reverse the Obama Administration’s re-interpretation of federal civil rights law to include sexual orientation and transgenderism is simply honoring Congress’ original intent.

Sasser noted further that “the First Amendment remains a meaningful guardian should government stray from its constitutional obligations.” This seemed to say that the First Amendment might be appealed to, should Congress or the President turn against religious liberty. He referred to Justice Robert Jackson’s statement in the West Virginia vs Barnette case that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens, by word or act, to confess their faith therein.”

The Rev. Stan J. Sloan of the Family Equality Council said that Jesus overturned tables “for those who instead choose to distort religion.” He said that pro-LGBT advocates at the hearing were there “to begin overturning tables and to begin cleansing our nation of distorted ideas of religion that have no place in the separation of church and state.” This would seem to imply that there are good and bad religious ideas that the state can identify, violating the Constitution’s no establishment clause.

He claimed that if you are LGBTQ “you are seven times more likely to foster parent and seven times more likely to adopt a child than if you are straight.” Beyond the fact that LGBT persons cannot have children other than from opposite sex unions, this assumes that there is not ready access to adoption and foster care for LGBT couples. The real question is whether or not all foster care and adoption agencies are required to provide children to same sex couples, or whether, on a religious basis, they may provide them only to married opposite sex couples. He claimed that state religious freedom acts allowing religious agencies to follow their own religious doctrine in placing children had been “put in place under the guise of religion, and under the name of religious liberty.” Yet, as noted in the previous article on this hearing, unless Sloan is questioning the sincerity of religious adoption and foster care agencies, the ideas which require discrimination against homosexual and transgender behavior are in fact religious ideas, and thus protected by the Constitution. He referred approvingly to Congressman John Lewis’ proposed Every Child Deserves a Home Act, which would void these religious liberty protections. Yet in doing so, he is in fact attacking religious liberty by favoring the penalization of religious ideas he does not like.

Sloan admitted near the end of his testimony that cakes for same sex weddings are readily available, without requiring bakers with conscience objections to provide them, but seemed to claim that the often grim reality near the bottom of the socioeconomic ladder means conscience objection against LGBT requirements should be illegal. But he destroyed the force of this by referring to “being denied proper medical care as a trans person at the nearest clinic.” Transgenderism is in fact (like homosexuality) strictly a state of mind, not a physical reality. But sex is physical, and refusing to recognize that, as transgenderism does, has real consequences. Biological men who believe they are women (“transgender women”) should not be allowed in shelters for homeless or abused women, yet the LGBT antidiscrimination requirements Sloan wants would mandate this very real (and physical) danger. No accommodation could be made for the safety of the women in the shelter, because any such accommodation would be held to insult the dignity of the “transgender woman.”

Throughout the hearing, the pro-LGBT witnesses appealed again and again to personal pain as the overriding factor in establishing justice. This overrides both law (causing sexual orientation and gender identity to be read into the meaning of “sex” in civil rights laws and executive orders), and freedom (that of anyone, particularly the religious citizen) who objects to putting personal feelings above reality. The difficult aspect of the moral struggle for social conservatives is that hurt feelings can easily be presented, as they were in the hearing, as cases of victimization, when in fact they are assertions of self will against all other reality. It is important not to accept this willfulness, take the penalty where it does prevail, and continue speaking the truth, regardless of how badly anyone is offended.