Thursday, November 19, 2009

Chaid Feldblum quote in context

An openly lesbian woman is being nominated to America's Equal Employment Opportunity Commission. Predictably, the Christianist right in America is having an absolute fit. The website Good as You has already demonstrated that a video of Chai circulated by anti-gay activists has been significantly edited in a misleading way. I'm still exploring all the many claims being circulated, but I would like to put one quote back into context.
From this anti-gay website we have the claim

Feldblum has written: "Once a religious person or institution enters the stream of commerce by operating an enterprise such as a doctor's office, hospital, bookstore, hotel, treatment center, and so on, I believe the enterprise must adhere to a norm of nondiscrimination on the basis of sexual orientation or gender identity." Feldblum believes that every organization must ascribe to her vision of society or else face penalties from the EEOC.

Unusually for anti-gay activists, they include a reference to the original article. It is entitled "Moral Conflict and Liberty: Gay Rights and Religion", and I find it notable just how much she stands up for the rights of religious believers in it. Of course, you wouldn't know that from reading the one small passage that anti-gay activists cherry-pick from it.

And as is quite usual for anti-gay activists, the cherry-picked quote is taken out of context and a supposed "summary" is provided which misrepresents the true meaning. Nowhere does Feldblum say that she requires "every organization" to "ascribe to her vision of society". Feldblum, in the very next paragraph of this article explicitly cites situations in which she does believe religious organisations should be allowed to discriminate against gay people.

The text of the quote, and the continuation of it that demonstrates that anti-gay activists are lying, is on pages 52 through 54 of Feldblum's article. I'm including the two paragraphs here so people can see for themselves what's going on. I'd actually recommend reading the whole thing, though, so you can get a complete picture of Feldblum's views instead of relying on anti-gay distortions.
As a general matter, once a religious person or institution enters the stream of commerce by operating an enterprise such as a doctor's office, hospital, bookstore, hotel, treatment center and so on, I believe the enterprise must adhere to a norm of non-discrimination on the basis of sexual orientation and gender identity. This is essential so an individual who happens upon the enterprise is not surprised by a denial of service and/or a directive to go down the street to a different provider. While I was initially drawn to the idea of providing an exemption to those enterprises that advertise solely in very limited milieus (such as the bed & breakfast that advertises only on Christian Web sites) I became wary of such an approach as a practical matter. The touchstone needs to be, I believe, whether LGBT people would be made vulnerable in too many locations across society. An "advertising exception" seemed potentially subject to significant abuse.

Nevertheless, I believe there might be a more limited exception that would be justified. There are enterprises that are engaged in by belief communities (almost always religious belief communities) that are specifically designed to inculcate values in the next generation. These may include schools, day care centers, summer camps and tours. These enterprises are sometimes for-profit and sometimes not-for-profit. They are within the general stream of commerce, together with many other schools, day care centers, summer camps and tours.

I believe a subset of these enterprises present a compelling case for the legislature to provide and exemption in a law mandating non-discrimination based on sexual orientation. The criteria for an exemption should be as follows: the enterprise must present itself clearly and explicitly as designed to inculcate a set of beliefs; the beliefs of the enterprise must be clearly set forth as being inconsistent with a belief that homosexuality is morally neutral and the enterprise must seek to enroll only individuals who wish to be inculcated with such beliefs.

The dignity of LGBT individuals would still be harmed by excluding such enterprises from the purview of an anti-discrimination law. But in weighing the interests between the groups, I believe the harm to the enterprise in having its inculcation of values to its members significantly hampered (as I believe it would be if it was forced to comply with such a law) outweighs the harm to the excluded LGBT members.

I am more hesitant regarding the second limited circumstance, but I offer it for analysis and criticism. I believe there may be a legitimate exemption that should be provided with regard to leadership positions in enterprises that are more broadly represented in commerce. Many religious institutions operate the gamut of social services in the community, such as hospitls, gyms, adoption agencies and drug treatment centers. These enterprises are open and marketed to the general public and often receive governmental funds. It seems quite appropriate to require that the enterprises' services be delivered without regard to sexual orientation and the most employment positions and that most employment positions in these enterprises be available without regard to sexual orientation

But the balance of interests, it seems to me, shifts with regard to the leadership positions in such enterprises. Particularly for religiously-affiliated institutions, I believe it is important that people in leadership positions be able to articulate the beliefs and values of the enterprise. If the identity and practice of an openly gay person will stand in direct contradiction to those beliefs and values, it seems to me that the enterprise suffers a significant harm. Thus, in this limited circumstance, a legislature may perhaps be legitimately conclude that the harm to the enterprise will be greater than the harm to the particular individuals excluded from such positions and provided a narrow exemption from a non-discrimination mandate in employment for such positions.

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