Fairness for all, or a few?
Religious Liberty | Critics of an NAE-CCCU plan to protect religious freedom say it favors institutions over individuals
by J.C. Derrick
Posted 11/29/16, 02:37 pm
Presidents of two major evangelical organizations are calling on Christian leaders to consider supporting legislation that would codify rights for LGBT and religious communities in the wake of the Supreme Court’s Obergefell v. Hodges decision last year legalizing same-sex marriage.
Leith Anderson, president of the National Association of Evangelicals (NAE), and Shirley Hoogstra, president of the Council for Christian Colleges and Universities (CCCU), have led the effort, conducting forums with some 200 Christian leaders in nine cities over the past 15 months. Some criticize their plan, known as “Fairness for All,” because it could protect churches and colleges but not other nonprofit religious organizations or Christian-led businesses.
Anderson and Hoogstra speak favorably for this plan, which is based on a 2015 Utah law that amended the state’s anti-discrimination and fair housing acts to include lesbian, gay, bisexual, and transgender persons. The legislation included an exemption for religious organizations, and a similar provision on the federal level would cover the constituencies Anderson and Hoogstra represent.
“We have a fiduciary duty to protect the religious freedom of our institutions,” said CCCU spokeswoman Shapri LoMaglio. “We’re doing everything possible to protect the religious liberty of as many individuals and institutions as possible.”
LoMaglio described the series of forums as “educational” sessions designed to solicit input, but attendees told WORLD the events effectively persuaded many to support Fairness for All—at least in principle.
That’s notable because most major conservative advocacy groups and several Christian leaders oppose Utah’s plan, including The Heritage Foundation, Alliance Defending Freedom, the Southern Baptist Convention’s Ethics and Religious Liberty Commission (ERLC), the Family Research Council, First Liberty Institute, the U.S. Conference of Catholic Bishops, Princeton University professor Robert P. George, Heritage fellow Ryan T. Anderson, ERLC president Russell Moore, and Colson Center for Christian Worldview president John Stonestreet.
While most dissenters believe Fairness for All is well-intentioned, they object to the lack of protections for religious individuals. Kelly Shackelford, president of First Liberty Institute, said a better title for the concept would be “Fairness for a Few.”
“Sometimes people with good intentions can do a lot of damage to others,” he added. “We’ve seen these bills have unintended consequences that are devastating for people of faith.”
Shackelford cited as an example his clients Aaron and Melissa Klein, Oregon bakers who declined to make a wedding cake for a lesbian customer they had served in other capacities in the past. The state issued a $135,000 fine, forcing them to close their business.
Utah’s law protects businesses with 15 or fewer employees, but the ERLC’s Russell Moore and Andrew Walker noted the arbitrary number could be subject to change or elimination, and a business owner with 17 employees could be forced to violate his or her conscience.
“Legally compelled speech where the government has not sought out a less restrictive means goes against the letter and spirit of our First Amendment,” they wrote. “This is unacceptable.”
LoMaglio stressed that no federal legislation exists yet, so specifics are negotiable. She declined to discuss possible deal-breakers, including whether the CCCU would support a religious exemption that didn’t protect individuals such as the Kleins.
“We’re looking for a comprehensive solution that protects the most people possible that is politically viable,” she said.
The NAE-CCCU forums include details on the Equality Act, an LGBT bill supported by Democrats, and the First Amendment Defense Act, a religious freedom bill supported by Republicans, with Fairness for All presented as a strategic compromise.
Michael Wear, founder of a Washington, D.C.–based consulting firm focused on helping Christians navigate public policy issues, has attended several of the forums and praised Anderson and Hoogstra for their “phenomenal” leadership. He said these discussions are critical for securing robust religious freedom in a post-Obergefell context.
“I find it very hard to believe we’re going to go indefinitely into the future without addressing things like employment rights for LGBT persons who are legally allowed to marry,” said Wear, who led evangelical outreach for the Obama administration’s Office of Faith-based and Neighborhood Partnerships. “These questions are going to be addressed. It’s just a matter of the context in which they will be addressed.”
Many observers thought the Fairness for All push may lose steam in the wake of President-elect Donald Trump’s surprising win earlier this month and his subsequent nomination of Betsy DeVos for education secretary. (DeVos graduated from Calvin College, a CCCU member school, where Hoogstra was an administrator until 2014.)
That doesn’t appear to be the case: Hoogstra and Anderson, who did not respond to requests for comment, have another event scheduled, and advocacy for the plan took place the week after the election at a conference for independent colleges and universities. Some supporters of the plan believe a Republican Congress and White House is the best time to move forward with the proposal—similar to the scenario in conservative Utah.
Supporters cite a California bill that would have gutted freedoms for religious schools earlier this year as a prime reason for moving quickly on federal legislation similar to Fairness for All—also referred to as a sexual orientation and gender identity (SOGI) law. They believe a federal law with a religious exemption would be a permanent solution to ongoing tensions between LGBT rights and religious freedom.
Greg Baylor, a former CCCU board member who is the leading higher education attorney for Alliance Defending Freedom, disagrees. He said there is “grave risk” that any religious exemptions would be removed later: “This is precisely what almost happened earlier this year in California, where the legislature, through Senate Bill 1146, tried to gut the long-standing religious exemption from the state Equity in Higher Education Act’s prohibition on SOGI discrimination.”
Two years ago, LGBT advocates succeeded in repealing the decades-old religious exemption in Washington, D.C.’s Human Rights Act.
Baylor said Christian schools should beware they don’t handcuff their own graduates in pursuit of self-preservation: “Those who support the integration of faith into all areas of life, including the commercial sphere, should be hesitant to support laws that punish people for doing precisely that.”