Time for compromise on gay rights and religious freedom

This article appears in the Transition to Trump feature series. View the full series.

The struggle between activists for gay rights and religious freedom has been presented as a zero-sum game where no compromise is possible. In this contest, gay rights have been presented as the human rights of a persecuted minority which cannot be compromised, while religious freedom has been described as a protection for believers against infringements on their consciences and beliefs.

Does the recent election provide an opportunity for compromise or will opponents become more entrenched in their positions?

The toxicity of this conflict is sad but not surprising. Gay people have suffered terribly from violence, discrimination, and persecution in the United States, often backed by anti-gay laws. Christian preachers supported this discrimination with fiery sermons demonizing gays and consigning them to hell. Only recently has the right of gays to live peacefully and function openly in society been recognized. Despite now having the right to marry, they are still looked upon with suspicion and discriminated against by too many. Since some churches spent millions of dollars fighting same-sex marriage, it is not surprising that gay activists see religious believers as their opponents.

Meanwhile, churches and religious believers feel that they are being vilified for simply maintaining centuries-old teaching. They feel they are being forced to violate their consciences and creeds to accommodate changing societal values. They now see themselves as a persecuted minority on the losing side of a cultural revolution that they reject. They feel that their institutions are being threatened by laws or courts that want to force them to violate their beliefs or lose their right to function in society.

Activists and lobbyists representing both sides have squared off in this struggle, with some state legislatures passing gay rights bills that believers feel threaten their institutions, while other state legislatures pass religious freedom bills that LGBTQ people feel treat them like second-class citizens.

Absolutists on both sides are unwilling to compromise. The political rhetoric has reached apocalyptic dimensions, with each side predicting catastrophe if they lose. Although this is a good fund-raising strategy for activists on both sides, it makes finding a resolution to the conflict that much harder.

On the gay rights side, until recently, there was little incentive for compromise. They had won on same-sex marriage, and public opinion polls continued to move in their direction, especially among young adults. They had looked forward to another champion in the White House with the election of Hillary Clinton.

The Republican sweep should give gay activists pause. With Republicans in control of both houses of Congress and the White House, it is unlikely there will be any more gay-friendly legislation or regulations. While Trump does not appear to be a homophobe, he is appointing to his administration people who would like to roll back gains of the gay community, and his judicial appointees will undoubtedly look askance on expanding gay rights. Although he will not press for a reversal on gay rights, he will probably sign any religious liberty legislation he gets from the Republican Congress.

Republican governors and state legislatures will not push the gay agenda and may attempt to undermine it.

The best the gays can hope for is a retention of the status quo. But it is just as likely that they will see roll back in some areas. Will this encourage the gay community to compromise or will it make them dig in for a longer fight?

The defeat of Hillary Clinton and the success of Republican candidates across the country is bringing joy to religious freedom advocates for all the reasons it is a disappointment to gays. The danger is that they will see this as a total rejection of the gay agenda and an opportunity to reassert their power. But it would be a dangerous mistake if they overreached.

They should remember those polls that show growing sympathy for gays, especially among young people. In addition, the business community has been willing to use its economic power to push states like Indiana to reverse religious freedom legislation if it is seen as anti-gay.

Nor should they forget that Donald Trump says that same-sex marriage is here to stay. He even spoke of protecting LGBTQ citizens in his acceptance speech at the Republican Convention, a first for a Republican nominee. While Congress and his administration will be filled with people who have opposed gay rights, this opposition is not a priority with Trump. And if history continues to repeat itself, the Democrats will be back in the White House in four or eight years.

Both sides in this conflict are facing an uncertain future, which presents the country with an ideal opportunity to discuss compromise. Dragging out the fight might keep activists and their lawyers employed, but it does not provide a peaceful and stable solution to the issues involved. This would require that both sides accept incremental progress rather than holding out for their perfect world.

What would a compromise look like? In broad strokes, it would see an extension of nondiscriminatory laws to cover gays while providing limited exemptions for religious believers and institutions. People could no longer be discriminated against in employment, housing, and public accommodation based on their sexual identity or orientation, but church institutions would retain the right to employ and serve on the basis of their faith claims.

The Mormon church and the gay community were able to work out such a compromise outlawing discrimination in employment and housing in Utah, although not public accommodations.  

A workable compromise would make it illegal for major businesses to discriminate against gays in employment or services but might exempt religious institutions and small family businesses.

Gay activists argue that discrimination against gays is similar to discrimination against blacks and therefore compromise is impossible. This shows an ignorance of the history of civil rights legislation. In order to get civil rights legislation passed, limited exemptions were often included. The best example is the so-called Mrs. Murphy exemption to the 1968 Fair Housing Act. It provides that if a dwelling has four or fewer rental units and the owner lives in one of those units, that home is exempt from the FHA. 

What do gays get out of such compromises? They get national legislation outlawing discrimination in all but a few instances of employment, housing, and public accommodation. Most of the pie is better than nothing. In addition, they get to appear gracious in victory, knowing that the real challenge is not getting legislation passed but winning over most people to a recognition that gays should be treated with respect. As long as they are seen as attacking religion, they will meet opposition from people for whom religion is a central part of their lives.

Most gays do not want a homophobic business involved in their wedding. Most gays do not want as a marriage counselor someone who does not believe in gay marriage. Most gays would accept these exemptions, but sadly the activists are not interested in compromise.

What do religious believers have to give up? They have to accept that same-sex marriage is here to stay as part of civil law. They have to positively say that discrimination against LGBTQ people in nonreligious employment, housing, and public accommodations is not okay. They have to say that all God’s children have human dignity and a right to be treated fairly. This should not be all that difficult.

What do they gain? More certainty about what is legal or illegal. The ability to run their institutions according to their beliefs without state interference or the fear of being sued. Clear exemptions that protect their institutional freedom. An end to being portrayed as homophobic.

The details of the compromise need to be negotiated, and the results might be different in different localities. How small should be the family businesses that are exempted? What about an individual employee who has a conscience problem? What if there is no alternative business or employee available to the gay person? For florists and bakeries, should the exemption only cover same-sex weddings and not other purchases? Should exemptions for religious institutions cover all employees, including janitors, or only those considered "ministers" and teachers of religion? Can issues like bathrooms and locker rooms for transgender persons be postponed for a later day?

The Catholic church should take the initiative in reaching out for a compromise. It is embarrassing to see the Mormon church as more flexible on these issues than the Catholic bishops.

We should not be surprised if the first response to such an invitation is rejection from gay activist groups like the Human Rights Campaign. Despite such rejection, bishops should reach out to local gay groups as well as state and local legislators to see if a compromise can be worked out.

This is especially true in red states where gay groups are weak and support from the Catholic church would be appreciated. Moderate politicians and business people in such states would appreciate the cover the church could provide. As a result, proponents of gay rights might be more open to compromise in red states so that they could become a model for the rest of the country.

The recent election may push both sides of this conflict to further entrenchment, and that would be tragic. Or they might see it as an opportunity to make progress in resolving issues that have bitterly divided the nation. Let's pray it is the latter.

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org.]

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