Biden’s gay rights/religious liberty opportunity

Democrats need another political win — preferably one that appeals to wavering Republican voters. The fraught issue of gay rights and religious liberty offers an opportunity, one that could also help fix the toxic polarization of American politics.

Sooner or later the extremists who now dominate the U.S. Supreme Court will confront that issue, and will almost certainly resolve it in a clumsy and destructive way. The Biden administration could help both itself and the country by getting there first, developing a balance that ameliorates the religious right’s worst fears.

Democrats, who admirably defend gay rights, are wary. The Fairness for All Act, which sought to combine anti-discrimination protections with religious exemptions, got not a single Democratic cosponsor. But this question can’t be evaded. The Religious Freedom Restoration Act (RFRA) mandates such accommodations for all federal statutes unless the burden is the least restrictive means of advancing a compelling governmen­tal interest. 

That gives judges enormous discretion to determine when they are appropriate. In Bostock v. Clayton County (2020), construing Title VII of the Civil Rights Act of 1964 to protect LGBT people from discrimination, the court declared that RFRA “might supersede Title VII’s commands in appropriate cases.” Since Amy Coney Barrett replaced Ruth Bader Ginsburg, the court has been increasingly radical in its solicitude for religious claims. 

Religious conservatives are anxious about the rise of gay rights. Some of the anxieties are unrealistic — and therefore easy for Biden to address. In Bob Jones University v. United States (1983), the Supreme Court upheld the IRS’s decision to deny tax exemption to a school that banned interracial dating or marriage. In the oral argument in Obergefell v. Hodges, the 2015 case declaring that same-sex couples had the right to marry, Justice Samuel Alito spoke for many when he worried that religious groups that oppose same-sex marriage – not just churches, but also nonprofits such as Catholic Charities and Notre Dame University – might lose their exemptions on the same basis.  The solicitor general’s vague answer, that “it’s certainly going to be an issue,” caused such alarm that it probably helped elect Donald Trump.

Bob Jones University v. United States has almost never been cited by the IRS to deny an exemption, and never for any discrimination other than race. Yale Law Prof. William Eskridge told me: “the Biden Administration ought to direct the IRS to assure churches and religious charities that their stance of marriage equality does not, nor should it, imperil their tax-exempt status.” It would cost nothing for Biden to forbid the IRS from doing what it already was never going to do.

The Equal Employment Opportunity Commission (EEOC) issues guidance letters on what constitutes actionable discrimination. Eskridge also suggests that the EEOC could offer such guidance about the interaction between Bostock and RFRA. That would involve some concessions to religious objectors that will be objectionable to LGBTQ groups, a result, he notes, that is “all but inevitable in a pluralist society.” Biden can tell them: If we don’t do this, the Supreme Court will, and you’ll like their answer even less. And Biden can consult them in crafting the rules. The court can’t and won’t. 

Finally, the administration could clarify what constitutes discrimination in health care settings. Sex discrimination in health care is prohibited by section 1557 of the Affordable Care Act. The details of that prohibition are the object of protracted litigation, particularly with reference to religious hospitals and transgender persons.

The overriding imperative here should be to make sure that religious hospitals don’t have regional monopoly power, exercising a veto over the health care decisions of people who don’t share their beliefs. Denial of exemption, when patients would face such obstacles, should be deemed the least restrictive means of guaranteeing them care, which is certainly a compelling interest. The judiciary lacks the power or the competence to draw the necessary geographical lines of mandatory coverage and exemption.  

Once again, Biden has good reason to offer a legal opinion, drawing nuanced lines that take the respective interests into account, before the Supreme Court gets there.

In each of these areas, the best chance of avoiding a reckless and overbroad Supreme Court decision is for the political branches to show that they are handling these conflicts sensibly, with support from both sides.

And then there’s the politics. Republican demagoguery such as the Florida “Don’t Say Gay” law offers a new opportunity for Democrats. “Most gay people are people of faith,” observes Tyler Deaton of the American Unity Fund, which promotes legislation to protect both. “Most people of faith are close to someone who is LGBT.” The conflict between the two groups, he says, is “a false dilemma that’s propagated by people who benefit from unending culture war.” A party that can say so has obvious appeal.

Religious conservatives – many of whom are repelled by the notion that Christianity equals Trumpism – need to be offered an alternative vision of an America that has a legitimate place for them. That is not only an imperative of political strategy. It is necessary if Americans are going to have a common life together.

Polarization and alienation are threats to the entire country, not just the Democratic Party. Biden hopes to create a different narrative. Here he has an opportunity to do just that.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming).  Follow him on Twitter @AndrewKoppelman.