At Thomas Jefferson School of Law’s 19th Annual Women and the Law Conference, The Way Forward: Gender, LGBTQIA Rights, and Religious Liberties, on February 1, 2019, the Ruth Bader Ginsburg Lecturer was former EEOC Commissioner Chai Feldblum. Feldblum was raised an Orthodox Jew, but at 18 lost her faith. She is also a “practicing lesbian” and joked that she would like to continue “practicing for as long as possible.”
To Feldblum, there are two important, and sometimes conflicting, principles in the workplace: 1) to ensure religious liberty in both religious practice and pluralism, and 2) that everyone has the right to live an honest life, free from discrimination and harassment. Feldblum encouraged us to engage in this discussion with a “generosity of spirit,” regardless of the emotions invoked.
She laid out four “locations” that justify different outcomes for LGBTQ+ employee protection and religious freedom:
- Individuals seeking protection in the public sector from an employer’s requirement [e.g., an employer bans any head coverings and an employee wants to wear a hijab at work];
- Religious individuals who provide a service to the public seeking an exemption [e.g., a baker asserts religious beliefs as the basis for refusing to bake a wedding cake for a gay couple];
- Religious institutions seeking an exemption [e.g., the Catholic church refusing to hire a trans priest]; and,
- Institutions controlled by a religious institution or beliefs [e.g., a Yeshiva Day Camp denying admission to Christian children].
In the first location, the employer should accommodate the employee’s request for an exception to the employer’s requirement as long as it does not place an undue burden on the employer. If the employee can still get their work done, why shouldn’t the employer grant a religious exemption? That said, this protection for the religious employee does not grant that same employee license to harass, say, LGBTQ+ employees at work—because the religious person’s right to free speech does not outweigh the LGBTQ+ person’s right to be free from harassment.
In the second location, Feldblum argues that the balance should be in favor of the LGBTQ+ individual. It is key to our society that people are free from harassment and discrimination. It is not enough to tell the LGBTQ+ individual to go to another bakery. Rather, if the baker works in a bakery that is open to the public, they should bake the cake regardless of their religious beliefs. Feldblum commented that if the baker worked in a bakery with 50 employees (instead of only a handful), perhaps that employee could be excused from baking such cakes. The LGBTQ+ couple need never know there was an issue. A balance can, and should, be struck.
It is not controversial that a religious institution be allowed to select only ministers, priests, rabbis, and imams that embrace the tenants of its religion. It is crucial to that religious organization that it be allowed to pass on its teachings unobstructed by anti-discrimination laws. This need outweighs my need as a lesbian to serve as a minister in a church that believes being a lesbian is a sin.
The last location is tricky. Feldblum argues that if that location wants to discriminate, it needs to be consistent. For the Yeshiva Day Camp to keep out a Christian child, they need to only allow Jewish children, and employ only Jewish employees. If their religious beliefs are so crucial to them that they cannot allow a Christian child to attend, they better mean it and prove it with consistency.
As a member of the LGBTQ+ community and an atheist with a long and storied background in religion, I very much appreciate the framework that Feldblum set forth. Members of both the LGBTQ+ and faith communities need to understand that a balance must be struck between, for example, my right to be a proud lesbian free from harassment and discrimination and my friend’s right to practice and celebrate sincerely held religious beliefs. The balance will not always be the same, but if we discuss these issues with a generosity of spirit and profound respect for each other, we can work to create an equilibrium.
Editor’s Note: Feldblum explains the concepts summarized above, and more, in her recent post, which you can read here: What I Really Believe About Religious Liberty and LGBT Rights.
Tristan Higgins, who wrote this post for San Diego Lawyers Club’s LGBTQ Committee, is a seasoned lawyer specializing in diversity and inclusion speaking and consulting.