Vox reported on Monday that Utah Sen. Mike Lee is blocking the reconfirmation of the Equal Employment Opportunity Commission’s first openly gay member, threatening to deny the agency a quorum and hobble its operations. Why? Because the commissioner, Chai Feldblum, is an advocate for LGBTQ equality and wrote a law review article that Lee is willfully misinterpreting as a declaration of war on anti-gay Christians.
The EEOC interprets and enforces federal civil rights laws. It’s made up of five commissioners—three from the president’s party, two from the opposing party—and requires three commissioners for a quorum. Without a quorum, the EEOC can still file lawsuits on behalf of plaintiffs who faced discrimination that the agency has already determined to be illegal. But, crucially, its members may not issue new decisions construing nondiscrimination laws.
President Barack Obama placed Feldblum on the EEOC on 2010 through a recess appointment, and she received Senate confirmation later that year. The Senate confirmed her again in 2013, and her current term expires on Dec. 31 at midnight. Typically, EEOC nominees are confirmed together; President Donald Trump nominated Janet Dhillon and Daniel Gade, both Republicans, to be voted upon alongside Feldblum. If confirmed, Dhillon and Gade will give Republicans a 3–2 majority on the commission. But Lee is holding up all three nominees: Since they’re slated to be confirmed as a package, the nominations must obtain unanimous consent, and by withholding his vote, Lee has blown up the process.
His opposition is not entirely surprising. Conservative activists have condemned Feldblum in the American Conservative (“an enemy of religious liberty”), the Heritage Foundation’s Daily Signal (a “radical nominee”), the Daily Wire (“Trump’s worst federal nomination”), the Blaze (“radical activist against religious freedom”), and elsewhere. Led by the anti-LGBTQ Family Research Council, right-wing advocacy groups have condemned Trump’s re-nomination of Feldblum. (The FRC previously maligned Feldblum by crediting her with the statement “Gays win; Christians lose,” which she never said.) In a statement, Lee echoed these criticisms, alleging that Feldblum has “radical views on marriage and the appropriate use of government power” that would lead her “to use the might of government to stamp out traditional marriage supporters.”
Feldblum has responded to these critiques in two Medium posts, asserting that her critics have warped her words to depict her as a militant anti-religious bigot. The posts swat down the canard that she is hostile to religion: “My father was an Orthodox Jewish Rabbi,” she wrote, “and … I grew up in a home in which religion and God were the defining aspects of our daily lives.” But more importantly, Feldblum took aim at the distortion of her landmark 2006 law review article, “Moral Conflict and Liberty: Gay Rights and Religion.”
Critics have universally painted this article as a broadside against anti-LGBTQ Christians. Lee alleged that in it, Feldblum described the conflict between “LGBT Americans” and “religious Americans” as a “zero-sum game.” According to Lee, Feldblum wrote that “no individual exceptions based on religious beliefs” should ever be allowed if they conflict with “the goal of liberty for gay people.”
This characterization of Feldblum’s article is so dishonest, so plainly incorrect, that I am not convinced Lee (or the staffer who wrote this press release) actually read it. The article is often cited as a conciliatory approach to the ostensible clash between religious freedom and gay equality. Indeed, Feldblum’s key point is that too many progressives underestimate the burdens that nondiscrimination laws may impose upon Christians. She chided judges who “downplay the burden on religious people who are forced to engage in certain conduct” and insisted that “government should err on the side of accepting” allegations that a certain law burdens religious exercise.
Feldblum went on to declare her belief that once “individuals choose to enter the stream of economic commerce by opening commercial establishments, I believe it is legitimate to require that they play by certain rules.” Specifically, she wrote that most businesses should not be able to claim a religious exemption from LGBTQ nondiscrimination laws. But Feldblum noted that these laws do place a real burden on religious business owners, and their proponents should be “forced to articulate why such a burden is appropriate.”
Finally, Feldblum wrote that certain religious businesses should receive a “limited exception” to civil rights statutes that protect LGBTQ people. “There are enterprises that are engaged in by belief communities … that are specifically designed to inculcate values in the next generation,” she explained. “These may include schools, day care centers, summer camps and tours. These enterprises are sometimes for-profit and sometimes not-for-profit.” Legislatures should allow these “enterprises” to engage in discrimination when they demonstrate that treating LGBTQ people equally would violate the tenets of their faith. Feldblum also wrote that “hospitals, gyms, adoption agencies and drug treatment centers” run by religious institutions should be permitted to engage in LGBTQ discrimination in the hiring of “leadership positions”—even if they “receive governmental funds.”
Is any of this radical? Of course not—it is an expression of a very mainstream view about the proper contours of nondiscrimination laws. Yet Lee et al. have warped Feldblum’s words to paint her as a “radical” determined to “stamp out” anti-LGBTQ beliefs.
This campaign is extremely stupid for two additional reasons. First, Lee’s blockade will prevent Trump from flipping the EEOC to a Republican majority, a long-held GOP goal. Second, it will not keep Democrats off the commission: By law, it must have two, so if Feldblum is withdrawn, she will be replaced by a nominee who likely shares her views. Perhaps Lee’s goal is simply to kneecap the EEOC by denying it a quorum. But that, too, seems asinine. Absent a quorum, the EEOC’s current rules will remain in place, and its lawyers will continue to enforce them. That includes a policy that federal law already prohibits workplace discrimination against LGBTQ people. If Lee wants to roll back the agency’s progressive decisions, he’ll need to confirm Trump’s two Republican nominees. That means voting for Feldblum, too.
I understand why conservatives are afraid of Feldblum. She is the intellectual godmother of the theory that federal prohibitions on “sex discrimination” protect LGBTQ people, which has already been adopted by two federal appeals courts. She is a one-woman legal powerhouse who helped enshrine equal dignity for LGBTQ people into law. She has worked closely with her Republican colleagues on the commission to crack down on sexual and racial harassment in the workplace. She is, in short, a very effective EEOC commissioner, which frustrates Republicans who think the agency has too much power.
But Feldblum will not be able to spark any legal revolutions once she is in the minority. By law, Trump has an opportunity to tilt the EEOC to the right, and he has apparently concluded that reconfirming Feldblum will not stand in the way of that goal. Lee’s crusade to put her out of a job is rooted in mendacity and lacks practicality. A scholar and public servant of Feldblum’s stature deserves better than this harebrained stab at character assassination.