Why a compromise on gender identity, however well-intended, is a disaster for religious liberty
THE BRIEFING
Thursday, Dec. 13, 2018
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As World Magazine tells the story, we now know that the Counsel of Christian Colleges and Universities and the National Association of Evangelicals, yes you are talking about two very major evangelical organizations. The boards of both have adopted this kind of fairness for all approach as the template that they are suggesting to the nation. The fairness for all language doesn't come out of a vacuum. It comes from a history, to that we will turn in just a moment. But as the story unfolds, we have the documentation. The president of the CCCU, the Council of Christian Colleges and Universities, Shirley Hoogstra, told the presidents of member institutions as far back as August that the board had voted to approve this fairness for all approach.
The motion adopted by the board of the National Association of Evangelicals, we are told the board unanimously adopted it in October is itself entitled Fairness for All, and as World tells us it calls on Congress to consider federal legislation consistent with three principles. What are those three principles? One, we believe that God created human beings in his image as male or female and that sexual relations be reserved for the marriage of one man and one woman. So good so far.
Number two, we support long standing civil rights laws and First Amendment guarantees that protect free religious exercise. Again, so good so far. But there's number three. 'No one should face violence, harassment or unjust discrimination on the basis of sex, sexual orientation or gender identity.' Well again, to an extent, so good so far. Every Christian would agree that no one should face violence or harassment on the basis of those issues. But the words unjust discrimination are themselves extremely problematic, because that raises the question that this motion doesn't answer. Can't answer. Probably doesn't want to answer. And that is, just what kind of discrimination is unjust?
Unjust discrimination is one of those expressions that is impossible to refute. No one would be against a prohibition of unjust discrimination. But everything hinges on what exactly is meant by these words. And that points to a very deep problem. These kinds of compromises or at least apparent compromises, they are actually predicated on a moment in political history in which you have two sides that are facing off and they each agree to a common language, but in reality, in all honesty, they hold to two very different understandings of what the words mean.
You might put it another way, they are holding to the same vocabulary but in reality they know they are not holding to the same dictionary. This kind of fairness for all approach takes us back to the year 2015. Consider this headline from a little over three years ago by Laurie Goodstein at The New York Times: “Utah passes anti discrimination bill backed by Mormon leaders.” Now let's just remind ourselves what's going on here. Back in 2015, the leaders of Mormonism were very clear about their determination to protect the religious liberty of the Mormon church and the larger Mormon empire when it comes to these sexual orientation and gender identity non-discrimination laws. Utah's legislature adopted in 2015 what was called a compromise legislation. A compromise between the LGBTQ activists and the Mormon church. Those were the two most important forces in the legislative context in Utah in 2015.
So what was the compromise? The compromise was this: the Mormon leadership agreed that it would accept the legislature adopting sexual orientation and gender identity non-discrimination legislation. But it demanded and received in return for the common support of LGBTQ activists protections for religious liberty. How did that happen? Well, a closer look at the legislation indicates these were extremely limited religious liberty protections. For example, there was no protection given to Christians who are working as photographers or florists, cake bakers, or in other expressive professions that would be charged as being unjust and discriminatory in refusing to endorse or to express support for same sex marriage, and the larger complex of sexual orientation and gender identity as is now commonly construed.
Laurie Goodstein back in 2015 reported the compromise this way, “The bill would ban employers and landlords or property owners from discriminating against people on the basis of sexual orientation and gender identity, adding those categories to Utah's laws that already protect against discrimination on the basis of race, sex and age.” The next sentence, “Religious organizations and their affiliates, such as colleges and charities, would be exempted.” Now this is really interesting. By the way, the limited exemption went on also to protect employees from being fired for talking about religious or moral beliefs “as long as the speech was reasonable and not harassing or disruptive.”
Notice what this compromise turns out to be upon closer examination. It's a way of religious leaders saying we're going to protect our churches, our denominations, and the most closely held ministries to our churches and denominations, but we're going to let the other questions go unanswered. When it comes to Christians in the marketplace, Christians in the workplace, when it comes to the florists, the bakers, the cake makers and all the rest, we're going to say you'll simply have to defend yourself in court. We'll hope for the best.
Now of course that's not the language being used, but that is the only way to understand this kind of compromise. And of course, there are other issues. There are other issues about how in the world something like this protection of speech in Utah could possibly be enforced. Remember the qualification, the speech was protected “as long as the speech was reasonable and not harassing or disruptive.” Well who gets to evaluate that? Who judges whether or not someone's religious or moral beliefs articulated in the workplace, or the public square, are reasonable, not harassing or disruptive. To say the very least, that's not much of a protection.
Now in fairness to the CCCU and the National Association of Evangelicals, they have not at least as yet given their endorsement to any specific form of legislation, to any particular bill. Indeed, leaders of both organizations are sending signals that what they really are endorsing and approving is an approach to the question of how these issue are to be adjudicated in the public square, not a specific proposal. But once you begin to understand what's going on here, that again doesn't offer us much encouragement at all, because we are talking about an approach that in its very nature will require a compromise and that's going to mean inevitably a compromise of someone's religious liberty rights.
Last year I was part of an effort undertaken by several, indeed many, evangelical leaders to send a public signal in the form of a public letter calling upon evangelicals and evangelical ministries and organizations not to adopt this approach. Kate Shellnutt reporting the story for Christianity Today on January 12, 2017 ran an article entitled “No Middle Ground: Evangelical Leaders Reject Compromise on LGBT and Religious Rights.” Now the compromise word here is what's so important. Let's just remember what we learned as little children. If you compromise, you are giving something. Now what in the world would these Christian evangelical organizations give? They are giving to those who are demanding sexual orientation and gender identity legislation. They are giving them support. At least some level of public support for the federal adoption of that kind of legislation. What do they think they're getting in return? They think that they are getting a recognition of the inviolable nature of religious liberty when it comes to some people, some entities, some organizations, particularly churches, Christian colleges and universities, closely held Christian ministries. But as for the rest, there is no particular agreed upon protection at all.
But back when that letter was issued in 2017, there was another point I very much wanted to make. I made it on The Briefing. The biggest problem in this is that when the federal government adopts this kind of legislation it is, in essence, adopting a new doctrine. Doctrine means teaching. And make no mistake, teaching is a major important responsibility and function of the government and the law. That's what it's doing. When the government says we're going to criminalize theft, it is saying it is wrong to steal. When the government adopts this kind of anti discrimination language, it is saying make no mistake whatsoever that it is wrong. It's not only legally wrong, it's morally wrong to discrimination on the basis of x or y or z.
Now the government, in adopting that kind of anti discrimination legislation, is doing so it says because it wants to protect the rights and the dignity of the persons in the classes that are so protected. But what's interesting here is that the U.S. Constitution, as we have often remarked, offers an absolutely explicit guarantee of religious liberty. But these newly invented rights that are now colliding with religious liberty, the rights that are involved in the LGBTQ category and beyond, you are looking at the fact that courts and legislatures and major political leaders with executive authority are increasingly giving precedence and greater weight to these newly constructed rights, as they are called, that come under the category of SOGI and at the expense of the constitutionally clear language guaranteeing religious liberty.
Ryan T. Anderson and Princeton University Professor Robert P. George, in an article written for public discourse, get to the heart of the issue with this language “SOGI policies attempt to impose by force of law a system of orthodoxy with respect to human sexuality. The belief that marriage is merely a union of consenting adults regardless of biology, and that one can be male, female, none or both again, regardless of biology. Sexual orientation and gender identity laws impose this orthodoxy by punishing dissent and by treating as irrational the beliefs that men and women are biologically rooted and made for each other in marriage.” Now notice something else here. Here is where Christians had better think very, very carefully. When you create legislation like this, and then you create exemptions, just consider how weak the exemptions are. You are saying here's the rule, here's the standard, here's the teaching, here's the doctrine, here's the morality, but we're going to allow because of other issues or political pressures or constitutional principles a limited set of exemptions. The exemptions become by definition the exemption to the rule.
And here's the problem. The exemption to the rule will forever thereafter have the status of merely an exemption. The more honest way to present this kind of compromised approach is to say that it seeks to preserve religious liberty rights on a very narrow bandwidth while accepting the legitimacy and the new orthodoxy of the non-discrimination laws for sexual orientation and gender identity as the reality in the larger public square. But as we leave this issue we have to consider a final point. When you look at a society in moral motion, that includes our society explicitly, when you're looking at the trajectory of that motion, you come to understand that the great sexual and moral revolution that is so reshaping western civilization is coming with a tremendous momentum. It is coming with a tremendous power. You can understand why some, acting defensively, would say we need to find some kind of compromise to save as much as we can save while there's time.
But by the very nature of the compromise, I would suggest to you this is the wrong approach to take. And furthermore, when you are looking at this kind of compromise in a society in moral motion you have to say how long could such a compromise last anyway. One of the things to note is that several of the national and most powerful LGBTQ organizations criticized the 2015 compromise in Utah, saying that it was, if anything, only a situation for now until they could gain, if necessary, if possible, by federal legislation or judicial decision a greater advantage and the compromise would exist no more. The fact that this council representing so many of the most historic and evangelical colleges and universities and the board of the National Association of Evangelicals has now undertake this approach and is now urging its larger embrace, that is a very interesting and important sign of the times.
It is also, I think, a failed project from the very beginning. It might be well intended, but even well intended mistakes are mistakes. But this news story World Magazine also reminds us of what is at stake. It's hard to imagine higher stakes, because we're talking about nothing less than the future of religious liberty in the nation.
Thursday, Dec. 13, 2018
Audio
Download MP3
Play16:32TRANSCRIPT
The Briefing
December 13, 2018
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Thursday, December 13, 2018. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Why a compromise on gender identity, however well-intended, is a disaster for religious liberty
A big issue has been brewing within evangelical circles. It has been waiting for the moment to public disclosure, and that moment has come. Yesterday, World Magazine ran an article by J. C. Derrick entitled Boards Back: SOGI Compromise. That is sexual orientation and gender identity compromise. The subhead, Major Christian Groups Endures Framework to Expand LGBT Rights in Exchange for Religious Protections. Derrick gets right to the point when he tells us two major evangelical organizations have formally endorsed principles that would add sexual orientation and gender identity. That's SOGI, to federal nondiscrimination law.
Now if you just start with that opening sentence, it tells us that two major evangelical organizations, that tells us something, this is a big story, have formally endorsed, that tells us we're talking about official action, not just something under consideration. Principles that would add sexual orientation and gender identity to federal nondiscrimination law. Now if all you have is that introductory sentence, you would want to ask a big question. Why would two major evangelical organizations do any such thing? The answer is that they're trying to establish a kind of template, a compromise legally, constitutionally, politically and more importantly, perhaps, culturally.
They're trying to find a way to encourage the federal government to adopt sexual orientation and gender identity protections that would not come at the violation of religious liberty. Now that sounds like the perfect deal politically, if it were possible. That sounds like a way through this cultural impasse. On the one hand, you have one side in this moral revolution that is demanding nothing less than the coercive power of the state, and of course that includes the federal government, to force everyone to get in line with the moral revolution, especially on the issues of sexual orientation and gender identity.
On the other side, you have those who cannot by conviction join the moral revolution, and they are saying you must respect our religious liberty rights. And of course, that's the side of the argument on which you would find evangelical Christians. So what is this compromise? Is it tenable? Is it possible? The bottom line is I believe it is neither. It is not tenable, it is not possible. You can state, as many will, that it is well intended. But a well intended mistake is still a mistake. A well intended wound to religious liberty is still a wound. And that's what we're looking at here.
The Briefing
December 13, 2018
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Thursday, December 13, 2018. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Why a compromise on gender identity, however well-intended, is a disaster for religious liberty
A big issue has been brewing within evangelical circles. It has been waiting for the moment to public disclosure, and that moment has come. Yesterday, World Magazine ran an article by J. C. Derrick entitled Boards Back: SOGI Compromise. That is sexual orientation and gender identity compromise. The subhead, Major Christian Groups Endures Framework to Expand LGBT Rights in Exchange for Religious Protections. Derrick gets right to the point when he tells us two major evangelical organizations have formally endorsed principles that would add sexual orientation and gender identity. That's SOGI, to federal nondiscrimination law.
Now if you just start with that opening sentence, it tells us that two major evangelical organizations, that tells us something, this is a big story, have formally endorsed, that tells us we're talking about official action, not just something under consideration. Principles that would add sexual orientation and gender identity to federal nondiscrimination law. Now if all you have is that introductory sentence, you would want to ask a big question. Why would two major evangelical organizations do any such thing? The answer is that they're trying to establish a kind of template, a compromise legally, constitutionally, politically and more importantly, perhaps, culturally.
They're trying to find a way to encourage the federal government to adopt sexual orientation and gender identity protections that would not come at the violation of religious liberty. Now that sounds like the perfect deal politically, if it were possible. That sounds like a way through this cultural impasse. On the one hand, you have one side in this moral revolution that is demanding nothing less than the coercive power of the state, and of course that includes the federal government, to force everyone to get in line with the moral revolution, especially on the issues of sexual orientation and gender identity.
On the other side, you have those who cannot by conviction join the moral revolution, and they are saying you must respect our religious liberty rights. And of course, that's the side of the argument on which you would find evangelical Christians. So what is this compromise? Is it tenable? Is it possible? The bottom line is I believe it is neither. It is not tenable, it is not possible. You can state, as many will, that it is well intended. But a well intended mistake is still a mistake. A well intended wound to religious liberty is still a wound. And that's what we're looking at here.
As World Magazine tells the story, we now know that the Counsel of Christian Colleges and Universities and the National Association of Evangelicals, yes you are talking about two very major evangelical organizations. The boards of both have adopted this kind of fairness for all approach as the template that they are suggesting to the nation. The fairness for all language doesn't come out of a vacuum. It comes from a history, to that we will turn in just a moment. But as the story unfolds, we have the documentation. The president of the CCCU, the Council of Christian Colleges and Universities, Shirley Hoogstra, told the presidents of member institutions as far back as August that the board had voted to approve this fairness for all approach.
The motion adopted by the board of the National Association of Evangelicals, we are told the board unanimously adopted it in October is itself entitled Fairness for All, and as World tells us it calls on Congress to consider federal legislation consistent with three principles. What are those three principles? One, we believe that God created human beings in his image as male or female and that sexual relations be reserved for the marriage of one man and one woman. So good so far.
Number two, we support long standing civil rights laws and First Amendment guarantees that protect free religious exercise. Again, so good so far. But there's number three. 'No one should face violence, harassment or unjust discrimination on the basis of sex, sexual orientation or gender identity.' Well again, to an extent, so good so far. Every Christian would agree that no one should face violence or harassment on the basis of those issues. But the words unjust discrimination are themselves extremely problematic, because that raises the question that this motion doesn't answer. Can't answer. Probably doesn't want to answer. And that is, just what kind of discrimination is unjust?
Unjust discrimination is one of those expressions that is impossible to refute. No one would be against a prohibition of unjust discrimination. But everything hinges on what exactly is meant by these words. And that points to a very deep problem. These kinds of compromises or at least apparent compromises, they are actually predicated on a moment in political history in which you have two sides that are facing off and they each agree to a common language, but in reality, in all honesty, they hold to two very different understandings of what the words mean.
You might put it another way, they are holding to the same vocabulary but in reality they know they are not holding to the same dictionary. This kind of fairness for all approach takes us back to the year 2015. Consider this headline from a little over three years ago by Laurie Goodstein at The New York Times: “Utah passes anti discrimination bill backed by Mormon leaders.” Now let's just remind ourselves what's going on here. Back in 2015, the leaders of Mormonism were very clear about their determination to protect the religious liberty of the Mormon church and the larger Mormon empire when it comes to these sexual orientation and gender identity non-discrimination laws. Utah's legislature adopted in 2015 what was called a compromise legislation. A compromise between the LGBTQ activists and the Mormon church. Those were the two most important forces in the legislative context in Utah in 2015.
So what was the compromise? The compromise was this: the Mormon leadership agreed that it would accept the legislature adopting sexual orientation and gender identity non-discrimination legislation. But it demanded and received in return for the common support of LGBTQ activists protections for religious liberty. How did that happen? Well, a closer look at the legislation indicates these were extremely limited religious liberty protections. For example, there was no protection given to Christians who are working as photographers or florists, cake bakers, or in other expressive professions that would be charged as being unjust and discriminatory in refusing to endorse or to express support for same sex marriage, and the larger complex of sexual orientation and gender identity as is now commonly construed.
Laurie Goodstein back in 2015 reported the compromise this way, “The bill would ban employers and landlords or property owners from discriminating against people on the basis of sexual orientation and gender identity, adding those categories to Utah's laws that already protect against discrimination on the basis of race, sex and age.” The next sentence, “Religious organizations and their affiliates, such as colleges and charities, would be exempted.” Now this is really interesting. By the way, the limited exemption went on also to protect employees from being fired for talking about religious or moral beliefs “as long as the speech was reasonable and not harassing or disruptive.”
Notice what this compromise turns out to be upon closer examination. It's a way of religious leaders saying we're going to protect our churches, our denominations, and the most closely held ministries to our churches and denominations, but we're going to let the other questions go unanswered. When it comes to Christians in the marketplace, Christians in the workplace, when it comes to the florists, the bakers, the cake makers and all the rest, we're going to say you'll simply have to defend yourself in court. We'll hope for the best.
Now of course that's not the language being used, but that is the only way to understand this kind of compromise. And of course, there are other issues. There are other issues about how in the world something like this protection of speech in Utah could possibly be enforced. Remember the qualification, the speech was protected “as long as the speech was reasonable and not harassing or disruptive.” Well who gets to evaluate that? Who judges whether or not someone's religious or moral beliefs articulated in the workplace, or the public square, are reasonable, not harassing or disruptive. To say the very least, that's not much of a protection.
Now in fairness to the CCCU and the National Association of Evangelicals, they have not at least as yet given their endorsement to any specific form of legislation, to any particular bill. Indeed, leaders of both organizations are sending signals that what they really are endorsing and approving is an approach to the question of how these issue are to be adjudicated in the public square, not a specific proposal. But once you begin to understand what's going on here, that again doesn't offer us much encouragement at all, because we are talking about an approach that in its very nature will require a compromise and that's going to mean inevitably a compromise of someone's religious liberty rights.
Last year I was part of an effort undertaken by several, indeed many, evangelical leaders to send a public signal in the form of a public letter calling upon evangelicals and evangelical ministries and organizations not to adopt this approach. Kate Shellnutt reporting the story for Christianity Today on January 12, 2017 ran an article entitled “No Middle Ground: Evangelical Leaders Reject Compromise on LGBT and Religious Rights.” Now the compromise word here is what's so important. Let's just remember what we learned as little children. If you compromise, you are giving something. Now what in the world would these Christian evangelical organizations give? They are giving to those who are demanding sexual orientation and gender identity legislation. They are giving them support. At least some level of public support for the federal adoption of that kind of legislation. What do they think they're getting in return? They think that they are getting a recognition of the inviolable nature of religious liberty when it comes to some people, some entities, some organizations, particularly churches, Christian colleges and universities, closely held Christian ministries. But as for the rest, there is no particular agreed upon protection at all.
But back when that letter was issued in 2017, there was another point I very much wanted to make. I made it on The Briefing. The biggest problem in this is that when the federal government adopts this kind of legislation it is, in essence, adopting a new doctrine. Doctrine means teaching. And make no mistake, teaching is a major important responsibility and function of the government and the law. That's what it's doing. When the government says we're going to criminalize theft, it is saying it is wrong to steal. When the government adopts this kind of anti discrimination language, it is saying make no mistake whatsoever that it is wrong. It's not only legally wrong, it's morally wrong to discrimination on the basis of x or y or z.
Now the government, in adopting that kind of anti discrimination legislation, is doing so it says because it wants to protect the rights and the dignity of the persons in the classes that are so protected. But what's interesting here is that the U.S. Constitution, as we have often remarked, offers an absolutely explicit guarantee of religious liberty. But these newly invented rights that are now colliding with religious liberty, the rights that are involved in the LGBTQ category and beyond, you are looking at the fact that courts and legislatures and major political leaders with executive authority are increasingly giving precedence and greater weight to these newly constructed rights, as they are called, that come under the category of SOGI and at the expense of the constitutionally clear language guaranteeing religious liberty.
Ryan T. Anderson and Princeton University Professor Robert P. George, in an article written for public discourse, get to the heart of the issue with this language “SOGI policies attempt to impose by force of law a system of orthodoxy with respect to human sexuality. The belief that marriage is merely a union of consenting adults regardless of biology, and that one can be male, female, none or both again, regardless of biology. Sexual orientation and gender identity laws impose this orthodoxy by punishing dissent and by treating as irrational the beliefs that men and women are biologically rooted and made for each other in marriage.” Now notice something else here. Here is where Christians had better think very, very carefully. When you create legislation like this, and then you create exemptions, just consider how weak the exemptions are. You are saying here's the rule, here's the standard, here's the teaching, here's the doctrine, here's the morality, but we're going to allow because of other issues or political pressures or constitutional principles a limited set of exemptions. The exemptions become by definition the exemption to the rule.
And here's the problem. The exemption to the rule will forever thereafter have the status of merely an exemption. The more honest way to present this kind of compromised approach is to say that it seeks to preserve religious liberty rights on a very narrow bandwidth while accepting the legitimacy and the new orthodoxy of the non-discrimination laws for sexual orientation and gender identity as the reality in the larger public square. But as we leave this issue we have to consider a final point. When you look at a society in moral motion, that includes our society explicitly, when you're looking at the trajectory of that motion, you come to understand that the great sexual and moral revolution that is so reshaping western civilization is coming with a tremendous momentum. It is coming with a tremendous power. You can understand why some, acting defensively, would say we need to find some kind of compromise to save as much as we can save while there's time.
But by the very nature of the compromise, I would suggest to you this is the wrong approach to take. And furthermore, when you are looking at this kind of compromise in a society in moral motion you have to say how long could such a compromise last anyway. One of the things to note is that several of the national and most powerful LGBTQ organizations criticized the 2015 compromise in Utah, saying that it was, if anything, only a situation for now until they could gain, if necessary, if possible, by federal legislation or judicial decision a greater advantage and the compromise would exist no more. The fact that this council representing so many of the most historic and evangelical colleges and universities and the board of the National Association of Evangelicals has now undertake this approach and is now urging its larger embrace, that is a very interesting and important sign of the times.
It is also, I think, a failed project from the very beginning. It might be well intended, but even well intended mistakes are mistakes. But this news story World Magazine also reminds us of what is at stake. It's hard to imagine higher stakes, because we're talking about nothing less than the future of religious liberty in the nation.
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