Maggie Gallagher, over at The Corner, responds to Chai Feldblum’s claim that she was misquoted in a 2006 Weekly Standard article, in which Maggie quoted Feldblum as saying that “when push comes to shove, when religious liberty and sexual liberty conflict, she admits, ‘I’m having a hard time coming up with any case in which religious liberty should win.’” Maggie supplies the full context, and though she does not have a recording, she is confident that she got it right at the time.
I can’t think why Feldblum should now want to disavow Maggie’s report of what she said long ago. It’s not like it’s inconsistent with her fully considered and published views of the matter. In the Becket Fund conference where Maggie evidently first discovered Feldblum’s views, she gave a paper that was later published in a book titled Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Feldblum’s essay, “Moral Conflict and Conflicting Liberties,” squarely came down on the side of never resolving constitutional or legal claims of religious liberty in favor of those claiming it, if on the other side was a claim of gays and lesbians not to be discriminated against, with respect to marriage or anything else. Indeed, she made the move of reducing First Amendment religious freedom claims to mere “belief liberty interests” under the due process clause, which makes them much easier to defeat.
Feldblum went on to explicitly equate a refusal to acquiesce in the redefinition of marriage with racial bigotry:
Just as we do not tolerate private racial beliefs that adversely affect African-Americans in the commercial arena, even if such beliefs are based on religious views, we should similarly not tolerate private beliefs about sexual orientation and gender identity that adversely affect the ability of LGBT people to live in the world.
She then went on to say that there might be “limited situations in which a legislature [her emphasis — i.e., not a court on constitutional grounds] might legitimately choose to protect the belief liberty of individuals or institutions over the identity liberty of LGBT people,” and she said that there might be two such situations. The first was when an explicitly religious organization runs operations like “schools, day care centers, summer camps, and tours,” its purpose is to “inculcate a set of beliefs” that are at odds with approval of homosexuality, and it “seek[s] to enroll only individuals who wish to be inculcated with such beliefs. The second situation, about which Feldblum said she was “more hesitant,” was when “religious institutions” offering social services to the entire community choose people for their top leadership positions. In other words, a Catholic adoption agency (one of her examples) just might still be free to choose a faithful Catholic as its director, over an “openly gay person” who also wants the job. Below the top leadership, Feldblum would not grant that leeway.
Note, however, that for Feldblum, these extremely limited spheres of freedom are not a matter of right under any reading of the Constitution, or of existing RFRA statutes. They have no connection to “religious liberty” as properly or ordinarily understood, but only to Feldblum’s desiccated notion of a “belief liberty interest.” And they are discrete, wholly optional, and tentatively offered matters of legislative grace. How then can she claim she was misrepresented when Maggie Gallagher quoted her as saying she had a “hard time” imagining circumstances in which “religious liberty” should prevail? That remark in a conversation was wholly consistent with her fully considered, carefully thought-out published views on the subject. It’s clear from her Becket Fund conference paper that she did indeed have a very “hard time” finding legal space for any realm of freedom to dissent from her political agenda.