Has the Republican electoral victory in the White House, Senate, and House of Representatives ushered in a new moment in the debate about religious liberty and LGBT rights? Jesuit Father Thomas Reese thinks so. In a blog post for The National Catholic Reporter, Reese, who has been serving as the chair of the Obama administration’s U.S. Commission on International Religious Freedom, makes the case that the new national mood means that it is now “Time for compromise on gay rights and religious freedom,” the title of the essay.
Reese says that the days of thinking of the debate as a “zero-sum game where no compromise is possible” should end. He describes the current political context of the debate:
“The Republican sweep should give gay activists pause. With Republicans in control of both houses of Congress and the White House, it is unlikely there will be any more gay-friendly legislation or regulations. While Trump does not appear to be a homophobe, he is appointing to his administration people who would like to roll back gains of the gay community, and his judicial appointees will undoubtedly look askance on expanding gay rights. Although he will not press for a reversal on gay rights, he will probably sign any religious liberty legislation he gets from the Republican Congress. . . .
“The best the gays can hope for is a retention of the status quo. But it is just as likely that they will see roll back in some areas. Will this encourage the gay community to compromise or will it make them dig in for a longer fight?”
And religious liberty advocates might be tempted to view the new mood as a total success for their perspective, but Reese cautions that this kind of thinking would be a mistake:
“The danger is that they will see [the defeat of Hillary Clinton and the success of Republican candidates] as a total rejection of the gay agenda and an opportunity to reassert their power. But it would be a dangerous mistake if they overreached.
“They should remember those polls that show growing sympathy for gays, especially among young people. In addition, the business community has been willing to use its economic power to push states like Indiana to reverse religious freedom legislation if it is seen as anti-gay.
“Nor should they forget that Donald Trump says that same-sex marriage is here to stay. He even spoke of protecting LGBTQ citizens in his acceptance speech at the Republican Convention, a first for a Republican nominee. While Congress and his administration will be filled with people who have opposed gay rights, this opposition is not a priority with Trump. And if history continues to repeat itself, the Democrats will be back in the White House in four or eight years.”
Reese surmises that this atmosphere which is fragile to both sides’ goals “presents the country with an ideal opportunity to discuss compromise.” Reese’s vision of one possible compromise is as follows:
“In broad strokes, it would see an extension of nondiscriminatory laws to cover gays while providing limited exemptions for religious believers and institutions. People could no longer be discriminated against in employment, housing, and public accommodation based on their sexual identity or orientation, but church institutions would retain the right to employ and serve on the basis of their faith claims.”
Reese sees the following benefits for the gay community in such a compromise:
“They get national legislation outlawing discrimination in all but a few instances of employment, housing, and public accommodation. Most of the pie is better than nothing. In addition, they get to appear gracious in victory, knowing that the real challenge is not getting legislation passed but winning over most people to a recognition that gays should be treated with respect. As long as they are seen as attacking religion, they will meet opposition from people for whom religion is a central part of their lives.”
Religious leaders would gain the following:
“More certainty about what is legal or illegal. The ability to run their institutions according to their beliefs without state interference or the fear of being sued. Clear exemptions that protect their institutional freedom. An end to being portrayed as homophobic.”
Reese’s proposal has its appeal, but it has its flaws, too. For one thing, he sees the debate as much more black-and-white than it actually is. We are not in a situation of gays on one side and religious people on the other. What about all the LGBT people who themselves are religious and who want their faith institutions protected? What about the many religious people who see religious freedom as primarily protecting religious people and their consciences, and not just institutions? The reality of the debate is a lot more complex than two totally separate, opposing camps.
Related to this idea of complexity is the situation of LGBT people being fired from employment or dismissed from volunteer opportunities with religious institutions. Reese does not really address that important question in his essay.
Second, he sees religious people as motivated by conscience and faith, and the LGBT community motivated by achieving political reform. That is why he urges the LGBT community to engage in a pragmatic compromise so that they can achieve some, if not all, of their goals. He blames the inability to compromise on LGBT leaders, not the grassroots:
“Most gays would accept these exemptions, but sadly the activists are not interested in compromise.”
While it is certainly true that leaders and the grassroots don’t often share the same opinions (Catholic bishops and lay people are an excellent example), in the case of LGBT rights vs. religious liberty advocates, I think that the leaders and grassroots are on the same page.
From the perspective of LGBT people, especially those at the grassroots, the issue is not one of mere pragmatism, but one of being legally and politically considered as second-class. The debate for LGBT people is as much a matter of closely-held principles (such as human dignity) as it is for the religious liberty advocates.
A third problem with the argument Reese lays out is that he seems to minimize the details of what compromises might involve. He states:
“”The details of the compromise need to be negotiated, and the results might be different in different localities. How small should be the family businesses that are exempted? What about an individual employee who has a conscience problem? What if there is no alternative business or employee available to the gay person? For florists and bakeries, should the exemption only cover same-sex weddings and not other purchases? Should exemptions for religious institutions cover all employees, including janitors, or only those considered “ministers” and teachers of religion? Can issues like bathrooms and locker rooms for transgender persons be postponed for a later day?”
These details are important, and involve some very important practical concerns as well as principles. Compromising on many of them could mean allowing for discriminatory practices to still exist.
A final weakness of Reese’s argument is that the definition of religious liberty is not something that should be dictated by leaders of religious institutions alone. If religious liberty laws are going to allow exemptions for secular businesses run by religious leaders, then that already is an admission that religion is not just a matter of institutional concern, but personal concern, too. So, religious liberty proposals need to take into account the religious concerns of LGBT people and their supporters, too.
Despite my critique of Reese’s argument, I think he is sincere in his efforts to try to resolve this debate in a way that allows LGBT people to gain steps toward equality. He is certainly not motivated by homophobia, but more from a desire to see LGBT people win some political gains during what promises to be a difficult four years. The overall weakness of his essay is that it doesn’t take the LGBT perspective seriously enough to see what values, as well as practicalities, are at stake for them, or how they view the issue.
Fr. Reese has been a strong supporter of LGBT equality. You can read about a number of his previous statements about LGBT issues by clicking here. I thank him for using his powerful voice to advocate for LGBT people.
–Francis DeBernardo, New Ways Ministry, December 5, 2016