Fairness for All?
By Arthur Klym | 10 December 2019 |
I graduated from an Adventist elementary school, an Adventist boarding academy, and an Adventist college. The aspect of my religious heritage for which I harbor the most pride is Seventh-day Adventists’ firm adherence to the separation of church and state.
The denomination has largely been uninvolved in political matters, except for active lobbying when religious liberty is threatened. A google search finds church publications celebrating the passage of the Civil Rights Act of 1964, particularly Title VII, which protects the employment rights of individuals denied to them on the basis of race, sex, religion, or national origin. The church has also brought litigation to protect the rights of its members and others to practice their religion. An example of support for others was an amicus brief by the church in the United States Supreme Court on behalf of a young Muslim woman denied a job by a major retailer on the sole basis that she wore a hijab to her interview.
Earlier this year the Democratically controlled House of Representatives passed the Equality Act. The act seeks to amend the Civil Rights Act of 1964 and other anti-discrimination laws by outlawing discrimination based on “sexual orientation” and “gender identity.” The bill is unlikely to be passed (or even voted upon) by the Republican-controlled Senate.
On December 6, 2019 a compromise bill was offered by a coalition of conservative groups called the “Fairness for All Act [FFAA].” Among the public supporters of the FFAA is the Seventh-day Adventist Church. The bill was reported to be based on a state law in Utah which was negotiated between LGBTQ groups and the Church of Jesus Christ of Latter-day Saints.
The FFAA would ban employment and housing discrimination based on orientation and gender identity, but exempt medical providers with religious objections to providing transition-related health care, and would allow barring transgender persons from gender specific spaces such as bathrooms. Churches and religious organizations could continue to discriminate based on sexual orientation in adoption and foster care services and in educational institutions. Persons transitioning to men and persons transitioning to women would largely be treated under the law as their selected identity, but such recognition could be ignored by religious non-profit organizations and churches.
Adventists and the FFAA
On December 6, 2019, the Deseret News published an article with the headline “Why Utah Rep. Chris Stewart and a coalition of LGBTQ and religious groups support ‘Fairness for all’ (and why others don’t).” Among the photos with the article is “Congressman Chris Stewart, R-Utah, right, thanks Bettina Krause of the Seventh-day Adventist Church for that organization’s partnership in his latest legislation, the Fairness for All Act, which aims to harmonize religious freedom and LGBT rights, after a press conference at the U.S. Capitol in Washington, D.C., on Friday, Dec. 6, 2019.”
On the same day the North American Division released a bulletin confirming its active role in the FFAA:
Over the past few years, Seventh-day Adventist advocates, from both the General Conference and North American Division, have worked with other groups to draft a unique piece of federal legislation. The Fairness for All Act, which was introduced into the U.S. House of Representatives on December 6, is a proposed law that rejects the bitter, polarized approach that has long dominated public discussion about these issues.
This seems to me a departure from prior legislative involvement by the church. While the church praises the Civil Rights Act of 1964 for protecting employment rights, I can find nothing indicating that the church played an active role in crafting or promoting it. Nor is there any evidence that the church took a position with respect to the Equal Rights Amendment of the 1970’s and 1980’s, an initiative which is currently being revisited. (Those of us of a certain age remember the warnings, many by conservative religious groups, of societal disruption if the constitution accorded to women rights equal to men. My home state, Washington, enacted an equal rights amendment to its constitution in 1972. The predicted dire consequences did not occur, unless one considers the enforcement of equal pay for the sexes to be calamitous.)
Was it wise for the Seventh-day Adventist Church to join other conservative groups in support of the FFAA?
The History of Christian Discrimination
It’s interesting to look at reactions to the Equality Act and the FFAA in light of the history of religious belief as a basis for racial discrimination.
In 1965, Judge Leon Bazile of Virginia’s Caroline County Circuit Court wrote in denying Richard and Mildred Loving’s motion to vacate their 1959 conviction of the crime of interracial marriage:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his [arrangement] there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Mississippi United States Senator Theodore Bilbo (yes, that was his real name) wrote in his 1947 book, Take Your Choice: Separation or Mongrelization, “Purity of race is a gift of God . . . . And God, in his infinite wisdom, has so ordained it that when man destroys his racial purity, it can never be redeemed.”
Such attitudes have a long history in United States law. In West Chester & Philadelphia Railroad v. Miles, 55 Pa. 209, 213-14 Pa. Supreme Court (1867), the court wrote.
Why the Creator made one black and the other white, we know not; but the fact is apparent, and the races distinct, each producing its own kind, and following the peculiar law of its constitution. . . . natural law . . . [which] forbids their intermarriage and that social amalgamation which leads to a corruption of races, is as clearly divine as that which imparted to them different natures. . . . The natural separation of the races is therefore an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature. From social amalgamation it is but a step to illicit intercourse, and but another to intermarriage. . . . When, therefore, we declare a right to maintain separate relations, as far as is reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.
This “natural law” language for racial separation may sound familiar to modern readers, as it is often used in similar ways by conservative Christians in describing their opposition to same-sex relationships.
Reactions to the FFAA
The FFAA is being put forward as a middle way alternative to the Equality Act, one that protects rights of both Christians and LGBTQ people. A number of organizations, in addition to the Adventist and Mormon churches, have joined in support of the FFAA, including the Council for Christian Colleges & Universities (of which two Adventist schools, Avondale College and Walla Walla University, are members). Others, such as the conservative Heritage Foundation, have strongly opposed it for seeing it as favoring LGBTQ rights over those of religious institutions.
Still others, including the Interfaith Alliance, the American Civil Liberties Union, Americans United for Separation of Church and State and the National Women’s Law Center argue that the FFAA imperils the LGBTQ community by offering them inadequate protections.
The passage of the Equality Act by the House of Representatives and the introduction of the alternative Fairness for All Act are driven, as legislation frequently is, by the evolution of public attitudes. The Public Religion Research Institute reports that six in ten Americans oppose allowing religiously affiliated agencies that receive federal funding to refuse to place children with qualified gay and lesbian couples based on religious objections” (which is something the FFAA explicitly allows.) There is broad agreement here across political parties, gender, education, race, and religion.
According to the same research, 55% of Americans “oppose allowing business owners who provide wedding services, such as caterers, florists, and wedding-cake bakers, to legally refuse service to gay or lesbian people based on religious beliefs. The report says that “this is a notable increase since 2018, when the U.S. Supreme Court upheld that right of refusal in Masterpiece Cakeshop v. Colorado Civil Rights Commission.”
This might indicate that many, perhaps even a majority of, Americans now see discrimination against LGBTQ people similar to how they have come to regard racial discrimination.
Analyzing the FFAA
In an interview in the Fall 2019 issue of Adventist Today magazine, Dr. Smuts van Rooyen describes how the institutional and personal racism that permeated the South Africa of his youth was based on both implicit and explicit support found in the Bible. He draws a parallel between the Christianization of racism by individuals, the church, and Christian culture, and the sanctified discrimination against those who are of another sexual orientation. He notes the tension between two of his own strongly held values: “the yearning of LGBTQ community [which includes his own daughter] to secure their civil rights” and “the religious liberty and freedom of speech the Christian community must have.”
In a society governed by laws, there is a constant striving between groups seeking the ascendancy of their own rights against those asserted by another group. Our legislative and judicial bodies wrestle to reconcile the contending rights. How do we protect basic human rights of one group without denying the basic human rights of another?
Unsurprisingly, LGBTQ Adventists are seeing this as more of the same treatment they’ve always received from the church. Writes one respondent on an Adventist Facebook group for LGBTQ Adventists, “Sounds to me like ‘Freedom for All’ is just keeping the status quo for religious entities. It still allows them to discriminate and hold prejudices. They see love for all and protection for all as only something applying to the secular world.” Says another, it is about religious organizations “being able… to fire LGBTQ people every time.”
Others wonder how this looks in relation to the church’s belief that Sabbathkeepers need protection against discrimination. “Remember when Adventists were like, ‘Thank God for religious liberty and the separation of church and state! Otherwise they’d make us worship on Sunday!’ Now they’re mad they can’t be jerks.” Another asks whether “SDA eschatology plays into the view of religious persecution that is reflected by the position taken here.”
The American Civil Liberties Union (which has on several occasions been on the side of the church in religious liberty matters) has raised some interesting legal questions about the FFAA. First, says Ian S. Thompson, it carves out a separate group for discrimination. “By singling out LGBTQ people for lesser protections than other characteristics under federal law–such as race, ethnicity, and religion–the new legislation signals that LGBTQ people are less worthy of protection.”
Second, it creates “sweeping taxpayer-funded discrimination” against children by its voucher system that would “allow religiously-affiliated child welfare providers—with whom the government contracts with to find stable, loving homes for children who are in state care—to discriminate against LGBTQ people or those, such as Jewish parents or single parents, who do not meet the agency’s religious criteria.”
Finally, says Thompson, it threatens at least three pending landmark cases on LGBTQ rights, whose rulings could be affected negatively by this legislation. Thompson adds that the argument that the FFAA, “by allowing discrimination by people of faith in many contexts… will somehow end court fights” is erroneous. “The bill would lead to more litigation by providing less clarity about the balance Congress first struck between religious liberty and nondiscrimination protections a half century ago in the Civil Rights Act of 1964.”
Was This Wise?
At the time of its passage the Civil Rights Act of 1964 was considered by some to threaten religious liberty. Should exemptions have been added to protect sincerely held religious beliefs when racial discrimination was outlawed? One cannot deny that such beliefs, however odious, were sincerely held, and on religious and biblical grounds.
As noted above, current public attitudes show that many may now be seeing laws such as the Equality Act as being of a type with laws against racial discrimination. In light of that, was it wise for the Seventh-day Adventist Church publicly to support the FFAA? Has the church joined on behalf of a cause that will eventually come to be seen to be as odious as racial discrimination? Time will tell.
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Arthur Klym practices law in Richland, Washington. He graduated in 1974 from Walla Walla College, and in 1977 from Willamette University College of Law. He has been in private practice for more than forty years.