On LGBTQ rights and religion, we don’t need another militant campaign

The Fairness for All Act is a sustainable way forward without alienating those who ought to be our allies

Thorny as the debate can be for supporting religious liberty while securing nondiscrimination protections for LGBTQ Americans, the best outcomes won’t be won in a zero-sum game. That’s what conservative strategist Frank Schubert misses in a recent Public Discourse article criticizing the Fairness for All Act

The legislation, introduced by Utah Republican Rep. Chris Stewart, aims to protect LGBTQ civil rights in employment, housing, public accommodations and federal programs while carving out targeted exemptions for religious employment and education, among other areas. 

In a Washington Post essay, Brookings Institution scholar Jonathan Rauch called it a “political breakthrough,” ticking all the boxes for President Joe Biden if he chooses to endorse it: showing he’s serious about nondiscrimination, proving he’s not deaf to the religious community and making the lives of millions of Americans of all stripes and persuasions better off.

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According to Schubert, though, there should be no balancing. While he underscores the danger the Equality Act poses to faith institutions — it broadly advances protections for LGBTQ Americans without addressing any religious concerns — Schubert takes an oppositional stance when it comes to crafting solutions. 

Fairness for All concedes too much, he argues, making it imperative that religious conservatives defend their faith completely from those who want to destroy it. That means “winning” — at the ballot box and through every legislative avenue. 

Priority No. 1 should be making sure those who champion the religious conservative viewpoint become the majority in Congress, he says. Then, the movement needs a calculated effort to “defend our views and go on offense to reclaim our rights,” among other tactics.

After communicating with a lawyer who works in this arena, I’ll put forward two serious flaws he sees with this approach.

First, Schubert assumes a large-scale conservative swing is around the corner, and that it would be sufficiently influential to not only win legislatively but to sustain those victories over time. Yet, in today’s culture, the odds of overturning court decisions like Obergefell v. Hodges — legalizing gay marriage — are next to zero, to say nothing of maintaining that reversal in the long run.

Schubert suggests that, since the author of Obergefell has left the Supreme Court and three more conservative justices have joined, it’s only a matter of time before the court moves the other way. But it was the Trump-appointed Justice Neil Gorsuch who penned last year’s opinion solidifying employment rights for LGBTQ workers. It would seem the appetite is not there.

By contrast, those behind Fairness for All understand the legal realities of today and choose to work within them to find common ground. Public opinion polls show two-thirds of Americans support legal same-sex marriage and a full 90% think LGBTQ employees deserve nondiscrimination protections in their work. Upturning those majorities isn’t going to happen. Leveraging them to foster understanding on both sides and create reasonable protections for all is much more promising.

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But what of the LGBTQ activists who won’t yield to anything less than their full buffet of policies? Schubert is right that they likely won’t settle, but that also exposes the second flaw in his argument: The target population for a legislative solution is not a handful of activists but the broad swaths of middle Americans who do support reasonable give-and-take.

Fairness for All compromises where the Equality Act doesn’t, making it palatable for most religious observers and LGBTQ persons — and the common intersection of the two — who just want to live their lives without harassment. It may not be the perfect bill, but it advances the issue further than Congress has managed and would give everyone a legal framework for navigating the moments when contrasting world views butt heads.

That’s far better than our current tact of endless litigation and animosity, the presence of which is largely responsible for where we are today.

For decades, religious politics responded to the movements of the sexual revolution — particularly to the embrace of LGBTQ rights — in unkind ways, allowing fear to overshadow legitimate arguments about First Amendment freedoms.

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The dilemma of such evangelical populism, writes theologian Matthew Lee Anderson, is that “careful arguments don’t move votes, but the extremist rhetoric necessary to win tends toward disrespect and also generates a backlash.”

Many activists have chosen the latter. Bad policies and ballot initiatives around the country — like, as Anderson points out, the failed 1978 California proposal to fire LGBT schoolteachers — spurred and emboldened the other side. The effects of extremism have left a vacuum of trust where there ought to be good-faith conversations and problem-solving. 

The one-sided Equality Act is a natural outcome of that environment. Fairness for All is a serious effort to bridge the way forward.

In an earlier Public Discourse post by Elder Jack N. Gerard, a General Authority Seventy of The Church of Jesus Christ of Latter-day Saints, Elder Gerard writes with urgency that the time is now for constructive engagement on finding fairness for all. Waiting and fighting for political purity will be a disaster for religion. 

“Blessed are the peacemakers,” Elder Gerard reminds. The country has had enough of militant social issues campaigns and their pyrrhic victories. The better option is not alienating today those who could be tomorrow’s allies, and finding common ground sturdy enough for all to stand on.