I wholeheartedly agreed with Elder Jack Gerard when he wrote in his recent Public Discourse piece, “People and institutions with traditional religious beliefs about marriage, family, gender, and sexuality face unprecedented challenges.” Elder Gerard and the leadership of the Church of Jesus Christ of Latter-Day Saints strongly believe that the Fairness For All Act (FFA) meets those unprecedented challenges by offering a fair compromise that will protect religious liberty while enshrining additional legal rights in federal law for individuals who identify as LGBT.
I have a high regard for the LDS Church and its leaders, having worked with them on several important projects, including managing the successful Proposition 8 campaign in California to define marriage in the state’s constitution. Yet despite my respect for the sponsors of the proposed law, I cannot support it.
The goal of the FFA is to reach a “live and let live” settlement with LGBT groups in a way that its sponsors believe addresses each side’s core interests. Religious groups would receive some statutory protections of their religious liberty rights, while LGBT groups would receive expanded legal rights in employment, public accommodations, and other areas. Unfortunately, the conflicts that exist in society today concerning sexual orientation and gender identity are not limited to religious liberty on one side and expanded LGBT rights on the other. Hence FFA does not represent a “settlement” of key issues, but instead a surrender on many of them.
The FFA Concedes Too Much
To illustrate, take just one of the most pressing current controversies: the impact on female athletes of defining sex under federal law to mean gender identity. Girls in high school and collegiate athletics increasingly find themselves competing against biological males who claim a female gender identity. The girls stand no realistic chance against biological males in contests of strength or speed. According to a study by two Duke University Law School professors, in 2017 the best time in the 100-meter sprint posted by a woman was outperformed more than 10,000 times by biologically male athletes. It is simply wrong to ask female athletes to compete against biological males. Doing so denies them the opportunity to showcase their talents in a fair competition, and even risks denying them future collegiate scholarships. Backers of FFA point to a provision that purports to prove that the legislation has no impact on Title IX, but that is of little comfort. Once sex becomes gender identity under federal law, in the marketplace of sports competition, girls will be crushed.
Gone, too, will be women’s privacy when biological men are guaranteed access to intimate areas such as locker rooms, showers, and restrooms. Women’s safety and security are also risked when biological men are granted access to female homeless centers, drug rehabilitation facilities, and even domestic violence centers.
Also sacrificed on the altar of political correctness is adherence to the historic, universal understanding of the bodily reality of human beings. Throughout history, people have distinguished men from women based in large part on physical, bodily differences. These distinctions are not religiously based. A person (religious or not) may simply not accept the underlying premise that bodily sex is distinct from gender identity. Such an understanding is not discrimination. Until the last few seconds of human history, it has been common sense.
Elder Gerard and other backers of FFA do not, of course, think they are surrendering ground on these issues. Rather, they believe that the ground is already lost, or soon will be. Indeed, Elder Gerard makes an impassioned plea to act immediately, “to reach a sustainable and balanced resolution while there’s still time.” In doing so, however, he concedes far too much. For example, he writes that “The Supreme Court’s 2015 decision in Obergefell holding that same-sex marriage is a federal constitutional right . . . [is] already a permanent part of our constitutional and civil rights law.”
Really? Obergefell was decided on a 5-4 vote. Its author is no longer on the Court, having been replaced by a far more conservative jurist. The late Justice Ruth Bader Ginsburg has been replaced by a strong Catholic champion of marriage and religious liberty, Amy Coney Barrett. Moreover, two justices, Clarence Thomas and Samuel Alito, recently made public comments seemingly inviting a challenge to Obergefell. Rather than declare Obergefell to be settled and permanent, people of goodwill should instead be working together on strategies to challenge and reverse it.
The FFA Is a Non-Starter
Elder Gerard makes a compelling case that the misnamed Equality Act is an aggressive attack on religious entities, enjoys strong Democrat support and, save for the Senate filibuster rule, could very likely pass. I agree. However, the political strength of the Equality Act actually undercuts his argument that FFA would derail it. The reality is that such a settlement, even if it were desirable, is not achievable. LGBT lobby groups do not want to “live and let live.” They want their interests to live and the interests of religious conservatives to die. They are playing to win.
The FFA concept has been around for many years. Very considerable efforts have been made to push the idea, but it has failed to gain traction. No major LGBT organization of consequence has signaled willingness to support it in exchange for dropping the Equality Act. The envisioned FFA grand bargain is a grand illusion.
Backers of FFA decry religious conservatives who do not bargain with LGBT lobbyists as “just say no” advocates who hope they can hold out forever against progressive social change. That is an unfair characterization. Religious conservatives are willing to consider policy proposals that address in a tailored and balanced way legitimate concerns about discrimination that LGBT-identified individuals have faced. Unfortunately, the LGBT lobby is not interested in targeted, balanced reforms. They want sweeping, one-sided enactments. There is no discussion or negotiation to be had. Again, they are playing to win.
So What Should Religious Conservatives Do?
If FFA is not the way to go, what should religious conservatives do to fend off proposals like the Equality Act?
First, religious conservatives must work to ensure that those who advance their interests in Congress become the majority in Congress. That is Job #1. Unfortunately, religious groups don’t generally do that job very well. The model for religious political engagement relies on non-reportable, tax-deductible gifts for educational materials such as voter guides. We must dump that model in favor of raising reportable, non-deductible dollars to pay for things like hard-hitting advertisements, digital engagement, and targeted voter outreach.
Second, we need to invest in messaging. Elder Gerard points to public polling that seemingly tells a foreboding story about acceptance of our arguments, but polling on social issues is notoriously difficult, with outcomes dependent on how issues are presented. For example, Elder Gerard cites a poll showing that 90 percent of Americans say it should be illegal to refuse to hire or fire people because they are lesbian, gay, or bisexual, but that is not the issue. The issue arises when someone who is LGBT acts in a way that collides with the values that an employer has put forward, such as a homosexual teacher in a religious school who rejects the Church’s teaching on marriage and openly promotes same-sex marriage in his classroom. Framed that way, a large majority of Americans would agree that religious schools should have the right to hire teachers who share their core beliefs.
Third, religious conservatives need to be proactive in looking at threats and opportunities and then develop appropriate strategies to deal with them. We need an interfaith effort in the courts to defend our views and go on offense to reclaim our rights. That includes a strategic effort to overturn Obergefell, and a comprehensive effort to limit the impact of the wrongly decided Bostock decision.
Fourth, we need a coordinated strategy among faith groups to demand that our rights be protected in federal law. That includes enacting the First Amendment Defense Act (FADA). Elder Gerard is quite right that proposals like FADA have never moved forward even when Republicans controlled Congress and the White House. But rather than accept that as being inevitable, we must change the dynamics. Again, the answer is political engagement. The 2022 mid-term elections provide conservatives an excellent opportunity to capture control of the House of Representatives and reclaim the Senate. We must make sure that our issues are front and center. And when we are successful, we must make it crystal clear to the new majority that we expect them to deliver on our issues or we will find others who will.
I don’t enjoy disagreeing with my friends in the LDS Church on this important issue. But after more than forty years of running political campaigns across America, and having dealt with LGBT issues for the past decade, I firmly believe the strategy behind the Fairness For All Act is flawed. You cannot reach a “live and let live” settlement with people who want your views to die. You cannot expect prospective allies to support something that is not fair and that does not protect all.
The answer to the challenges that we face is to fight to win.