Phi Beta Cons

Is Liberty a ‘Zero-Sum Game’?

Today a friend sent me an article from CNSNews regarding Chai Feldblum, a Georgetown University law professor and President Obama’s nominee to head the Equal Opportunity Employment Commission. The piece focuses on a journal article Professor Feldblum wrote in 2006, particularly on this argument:

“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 LGBT [lesbian, gay, bisexual, and transgender] people,” the Georgetown law professor argued.

 

Feldblum’s admittedly “radical” view is based on what she sees as a “zero-sum game” between religious freedom and the homosexual agenda, where “a gain for one side necessarily entails a corresponding loss for the other side.”

As the Supreme Court prepares to hear Christian Legal Society v. Martinez (which will determine once and for all whether campus religious student groups must be open to members and leaders who doesn’t share their faith), I’m reminded how poorly the public debate is framed.  

Yes, cases like Martinez are a “zero sum game” . . . if the goal is to force private institutions to accept people who do not share the group’s belief.  In such a circumstance, either the state smashes free association on behalf of an allegedly aggrieved victim group, or it doesn’t. Yet a right to be a voting member of — much less lead — a private group you disagree with has never been a right recognized in American law.

But there is a path where both sides win, where there is not a “zero sum,” and that path is to respect free association and free speech. If the Christian Legal Society succeeds in protecting the free-association right, then that right will also be enjoyed by groups like Hastings Outlaw (which, ironically enough, has intervened in the case to toss the Christian Legal Society from Campus). 

If your idea of law is that it is an instrument of domination and exclusion, then, yes, legal disputes between ideological opposites are “zero-sum games.” But if your idea of the Constitution is that it protects the fundamental liberties of all citizens (which happens to be the way the document is written), then — quite literally — everyone wins when those liberties are vindicated.

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