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Fairness for Some: How Compromise Harms Christianity and Religious Freedom

By Dean R. Broyles, Esq., president of the National Center for Law and Policy

I used to think that the greatest threat to religious liberty was radical sexual liberty, largely an external threat. But as I have observed the response of the church—largely of cultural compromise, capitulation and assimilation—I have come to the sad conclusion that the real problem is internal—it lies with us. We have many weak leaders and are weak ourselves. As a result, we have weak beliefs, weak faith, weak words and weak actions.

In an increasingly hostile culture, our understanding of and confidence in the Word of God as the final authority for faith and practice—a faith that has sustained the church and nurtured flourishing nations for thousands of years—is collapsing.

Now, most of us take our primary cues about what is true and real from a post-truth, post-Christian culture, rather than the timeless Truths embodied in Scripture. We do not have the courage of our convictions, because we don’t have convictions—at least not that we are willing to do much about or suffer for. If we do still believe, we find ourselves increasingly marginalized and silenced. As a result, social science research confirms we are increasingly becoming Christian in name only, but not in practice or reality.

It is true that it always seems easier to stick our heads in the sand rather than face hard truths. But making a meaningful positive difference requires proactive vigilance and engagement. When facing evil existential threats, passivity and appeasement are never the right answers. They never have been. Spiritual courage and moral clarity is desperately needed in the current fog of cultural confusion.

But sadly, in an age when we desperately need Winston Churchills, I fear that most churches and ministries are led by Neville Chamberlains. Exhibit A here is the National Association of Evangelicals (NAE) and Coalition of Christian College and Universities (CCCU) “Fairness For All” compromise.

What is fairness for all (FFA)? This proposal seeks to find a middle ground between those advocating LGBTQ rights and those defending religious liberty. It seeks to balance religious freedom and LGBTQ rights by elevating sexual orientation and gender identity (SOGI) to protected classes in federal law (along with race, sex, etc.), but with only narrow and limited carve outs (exemptions) for churches and religious institutions. The CCCU peddles the more positive spin that that FFA seeks “to create legal protections for LGBTQ persons in the basic areas of public space (employment, housing, stores, and restaurants), financial services, and jury duty service, while acknowledging a few narrow religious exceptions.” The operative word in the proceeding sentence is “seeks.” The FFA approach is based on the 2015 Utah Compromise, where the state cut a compromise deal with sexual liberty activists after same-sex marriage was legalized by the U.S. Supreme Court in Obergefell v. Hodges.

But this proposal, if adopted, will, at best, only result in fairness for some, not all. Indeed, FFA is dramatically under-inclusive because it would only narrowly protect the religious liberty of churches and Christian ministries, including Christian colleges. FFA would not protect Christian businesses against sexual orientation or gender identity claims. Wedding vendors like Colorado Baker Jack Phillips and Washington florist Barronelle Stutzman would be left out in the cold. Christian businesses like Hobby Lobby would be branded as “discriminators.” While churches and Christian colleges would be protected, Christian businesses and individuals would not be safe.

Countless religious professionals, including doctors and other medical professionals would have their free speech and religious liberty rights trampled by FFA. They are thrown under the bus in this truly wimpy compromise. These are unacceptable terms of surrender.

FFA’s narrow protections of a select few institutions are about as selfish, foolish, short-sighted, and ineffective as Chamberlain’s message to the Reich in 1938, “Go ahead and take Poland, just promise to leave us alone, please.”

Such a grand compromise will almost certainly have many other very bad consequences. If sexual orientation and gender identity are elevated and enshrined as protected classes in federal law (along with race, religion, sex, etc.), there is no doubt that religious Americans will be increasingly forced to ignore their religiously-informed consciences and to publicly embrace and celebrate all things LGBTQ. As Ryan T. Anderson, author of When Harry Became Sally, recently pointed out, “making ‘gender identity’ a protected class in federal policy, for example, could impose a nationwide transgender bathroom policy, a nationwide pronoun policy, and a nationwide sex-reassignment health care mandate.” The resulting coerced losses of privacy and Orwellian trampling of conscience will harm everyone, especially women and girls.

Although those familiar with the Zeitgeist may not be surprised, it’s as if proponents of FFA are fearfully and reactively looking at the cultural tea leaves of the increasing ascendency of radical sexual liberty and are seeking to somehow appease and surrender to this existential threat, rather than squarely opposing such freedom-crushing tyranny and defeating it. They argue that, because religious liberty has been losing in the culture and courts to sexual liberty (perhaps due to fear or panic), we should no longer trust God, the Constitution, or the courts to get the balance right. Therefore, they believe that we ought to rather take matters into our own hands and cut the best deal we can with our enemies, which they believe is FFA legislation.

As is pointed out by my friends at the Alliance Defending Freedom, “Their principal argument is that a tactical retreat is the only means of preserving religious freedom for some.” But neither panic nor surrender is an effective cultural or legal strategy.

In fact, to the contrary, recent rulings in Hobby Lobby, Masterpiece Cakeshop and NIFLA, all demonstrate that the court actually understands better than FFA proponents how to balance religious liberty and sexual liberty. In Hobby Lobby, the court acknowledged that Christian business owners have religious rights and conscience protections. In Masterpiece Cakeshop, the court ruled that states cannot target Christian business owners and treat unpopular religious beliefs about marriage in a non-neutral manner. In NIFLA, the court struck down a draconian state law targeting pro-life pregnancy care centers by coercing them to use conscience-trampling speech promoting abortion. As such, I am much more confident in the ability of the U.S. Supreme Court to achieve the right balance, rather than the NAE or CCCU, especially with the recent conservative shift of the court through the appointment of Justice Brett Kavanaugh.

Still, proponents of FFA attempt to occupy high ground, by arguing that they are merely following the Golden Rule, “Do unto others as you would have them do unto you.” But any legislation forcing Christians, on such a massive scale, to violate their conscience using the full force of federal law to pressure religious beliefs and coerce speech regarding SOGI, is inherently intolerant and tyrannical. FFA is a flagrant violation of both the Golden Rule and will almost certainly result in the further erosion of enduring First Amendment principles.

Forcing other Christians to live under freedom-crushing SOGI laws while conveniently exempting yourself is exactly the opposite of the Golden Rule: It’s “do unto others, but not me, pretty please.”

As night follows day, if FFA proponents are successful, such naked appeasement by some will lead to the further erosion of religious freedom for everyone. The “leadership” of the NAE and CCCU set a horrible capitulative example for churches and religious other institutions, especially Christian colleges already feeling the heat on SOGI issues. If we let this to happen, we will be on the road to serfdom. We will rapidly move from once being a nation of “freedom for all,” to “freedom for some,” to “freedom for none.”

Thus, the problem with FFA is that by adding SOGI to the “bad” discrimination list, it privileges SOGI in a manner that will lead to SOGI’s further cultural elevation and the simultaneous further diminution of religious freedom. Indeed, Houghton College president Shirley Mullen, who serves on both the NAE and CCCU boards wrote that FFA supports “basic human rights for members of the LGBT community.” Mullen is wrong. Religious freedom is an inalienable human right, given by God. But some new, culturally concocted anti-discrimination policies, including SOGI, are not. While there may be some good public policy arguments for them, we must not falsely compare or conflate the relative legal weight of religious freedom and SOGI, or weigh them equally in the scales of justice, as the FFA improperly seeks to do.

By recognizing SOGI, the FFA penalizes disagreement as if it were discrimination, coercively imposing a radical sexual orthodoxy on everyone. Coercing biblically-faithful Christians to support and embrace SOGI values against conscience is certainly not a basic human right. You would think that the president of a Christian college would understand that.

Thankfully, all is not lost. As the U.S. Supreme Court recently affirmed in Masterpiece Cakeshop and NIFLA, the First Amendment very robustly protects religious freedom and freedom of speech. And self-preservation, panic and insecurity are not valid reasons to give away our birthright as Americans while, under pressure, recognizing newly fabricated “fake” rights that are not actually protected by the U.S. Constitution or federal law. If America wants to elevate SOGI to an equal or greater status than religious freedom, it should do so only by properly amending the U.S. Constitution, not legislatively creating fabricated new rights. And Christians, including those leaders at the NAE and CCCU are foolish to be slitting our proverbial throats in this truly Faustian bargain.

Radical sexual liberty has been like a giant cultural steamroller, seeking to crush everything in its path. Yet, some proponents naively imagine that this FFA compromise will somehow make religious freedom more popular again, and slow or stop the steamroller. Really? There is zero evidence that those promoting the radical sexual liberty agenda, many of whom profoundly despise the Judeo-Christian worldview, are suddenly going to stop hating us and targeting us with bad legislation like FFA that tightens the noose around our necks.

The great weight of evidence and experience is actually the contrary. And frankly, why do we want people to “like” us when Jesus promised that his faithful followers would be hated? I believe the primary reason American Christians are not being persecuted more is not because we are being too faithful, but because we are not being faithful enough, and because we still have a rather robust First Amendment. Fearing man more than we fear God is always the road to compromise and spiritual failure. Why would we trade any part of our birthright (religious freedom) away for a cold bowl of confused sexual stew?

If we are to maintain a robust exercise of religious freedom for our children and grandchildren, fairness for some is not enough. In their attempt to address growing sexual orientation and gender identity pressures, the misguided Fairness for All approach historically mirrors Chamberlain’s Pollyannaish dream of “Peace in our time” at a critical juncture when we face the unrelenting cultural buzz saw of radical sexual liberty. If religious liberty is to survive and thrive, we must pray that much better leaders of Churchill’s caliber arise in our midst as we face the existential threats of our time.


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