Bill Berkowitz: Attempted deconstruction of Chai Feldblum

BUZZFLASH GUEST COMMENTARY
by Bill Berkowitz

Although no video has surfaced with her saying "I would hope that a wise Jewish lesbian with the richness of her experiences would, more often than not, reach a better conclusion," a la the recently confirmed Supreme Court Justice Sonia Sotomayor, nor has any bizarre petition shown up with her signature affixed to it, a la Van Jones, the president's former point man on green jobs. Nevertheless the Christian Right -- led by the always agitated folks at the Traditional Values Coalition (TVC) -- is up in arms over Chai R. Feldblum's nomination to become a Commissioner on the Equal Employment Opportunity Commission, the federal agency that enforces civil rights laws.

Feldblum's record indicates that she is a perfect fit for the Equal Employment Opportunity Commission; a compassionate advocate for the rights of the disabled and the disaffected. Au contraire say several Religious Right groups: Her appointment will be a victory for the 'forces of darkness,' and mark the end of 'religious liberty.'

Feldblum is the first openly gay or lesbian person that has been nominated to the EEOC -- as one of five commissioners, her nomination must be confirmed by the Senate -- which issues regulations implementing anti-discrimination laws and which authorizes test case litigation under anti-discrimination laws.

In a piece headlined "If You Hate America You Have a Lawyer -- Chai Feldblum," the TVC wrote that Feldblum is a "sort of general counsel to the Forces of Darkness," and her appointment is indicative of a President that "hates America."

Feldblum is condemned for having "worked" on the American Civil Liberties Union (ACLU) -- she was the Legislative Counsel to the ACLU's AIDS Project -- and the "pro-homosexual" Human Rights Campaign Fund, and she is castigated for having founding an organization called the Moral Values Project (http://www.law.georgetown.edu/moralvaluesproject/), which TVC calls "a 'gender equity' group meant to sound like something conservative."

According to the Moral Values Project Web site, the organization seeks to:

* "develop a consensus-based set of progressive moral values regarding sexuality, sexual orientation, and gender"; and

* "intervene in the political discourse to promote a more progressive set of public policies with regard to sexuality, sexual orientation and gender."

Feldblum, a professor of law, director of the Federal Legislation and Administrative Clinic, a program designed to train students to become legislative lawyers, and co-director of Workplace Flexibility 2010 at Georgetown University, has, according to her university bio, been a leading advocate and scholar in the areas of disability rights, health and welfare rights, lesbian, gay, bisexual and transgender rights, and workplace issues.

In one of its most bizarre charges, the TVC accuses Feldblum of being an "incrementalist." The evidence for this is her involvement with "the pro-gay/transsexual bill" known as the Employment Non-Discrimination Act (ENDA), which is being pushed again in Congress. She advocates the "the use of 'incrementalism' in the achievement of the gay agenda," the TVC charges.

"She wants to use incrementalism in ENDA, for example, by first covering employment and then later moving to housing and public accommodations," a tactic she used when she pushed the Americans With Disabilities Act (ADA) "where housing was the first target and then the ADA was later expanded to cover more areas of our culture."

Organizations on the Religious Right are no strangers to "incrementalism." Although some on the hard right have shown great disdain for incrementalism (Flip Benham's Operation Save America), other elements within the anti-abortion movement have benefited from it by layering on as many restrictions as possible (parental notification, 24-hour waiting period, the outlawing of so-called "partial-birth" abortion) so as to squeeze the very essence out of legal abortions.

During the 1980s while she clerked for Supreme Court Justice Harry A. Blackmun, "the notorious liberal judge who authored the Roe v. Wade decision legalizing abortion on demand," Feldblum, according to TVC, "praised him as someone who had the 'ability and desire to look behind the law and see the people is not the classic way to do law …. He brings a sense of caring and compassion that will be missed.'" The TVC concludes that Feldblum "clearly … favors liberal judicial activists who ignore the Constitution and who impose their own political views on the law."

The TVC also pointed out that in a paper titled "Moral Conflict and Liberty: Gay Rights and Religion," Feldblum "argue[d] for legislative and judicial 'outcomes that will allow LGBT people to live lives of honesty and safety in today's society.'" She believes "that religious people who run businesses or operate other institutions have no right to deny services to gays, lesbians, bisexuals or transgendered persons," the TVC charged.

"As a general matter, once a religious person or institution enters the stream of commerce by operating an enterprise such as a doctor's office, hospital, bookstore, hotel, treatment center and so on, I believe the enterprise must adhere to a norm of nondiscrimination on the basis of sexual orientation and gender identity," Feldblum has said.

"Once again, President Obama has demonstrated there is no one too radical to serve in his administration," said TVC Executive Director Andrea Lafferty, the Rev. Sheldon's daughter who handles things for the organization in its Washington, D.C. office.

"By picking Feldblum, he has signaled to his many fringe group fans on the Left that he will help them accomplish all of their goals to undermine the Constitution and overturn biblical morality and decency in America. Liberals hate America and so does a President who insists on appointing them to positions of power and responsibility within his already tottering administration."

The Alliance Defense Fund, a high-powered Religious Right legal operation, titled its recent story about Feldblum's appointment, "Obama's EEOC pick, Chai Feldblum: Sexual liberty wins in conflict with religious liberty," and Focus on the Family's CitizenLink blog wrote a piece titled "Enter Chai Feldblum; Exit Religious Liberty."

In May 2006, Maggie Gallagher, president of the Institute for Marriage and Public Policy and the National Organization for Marriage, wrote a piece for The Weekly Standard titled "Banned in Boston: The coming conflict between same-sex marriage and religious liberty," in which she listed Feldblum amongst those scholars that supported same-sex marriage and who "did not see that position in conflict with religious liberty."

Gallagher, who described Feldblum as someone that "has drafted many federal bills to prohibit orientation discrimination and innumerable amicus briefs in constitutional cases seeking equality for gay people," asked Feldblum why she decided to make time [to attend] … a conference on the impact of same-sex marriage on religious liberty."

"Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad," Feldblum told Gallagher. In employment law "we allow discrimination against people who sexually abuse children, and we don't say 'the only question is can they type' even if they can type really quickly."

Gallagher pointed out that Feldblum said that "there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn't tell you what you can do. There has to be enough outrage to bypass that basic default mode in America. Unlike some of my compatriots in the gay rights movement, I think we advance the cause of gay equality if we make clear there are moral assessments that underlie antidiscrimination laws."

She noted that "When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians." Feldblum added: "You have to stop, think, and justify the burden each time. Respect doesn't mean that the religious person should prevail in the right to discriminate -- it just means demonstrating a respectful awareness of the religious position."

While Feldblum admitted that when religious liberty and sexual liberty conflict, she had "a hard time coming up with any case in which religious liberty should win," she also pointed out that she "believe[d] a state should be permitted to withhold tax exempt status, as in the Bob Jones case, from a group that is clearly contrary to the state's policy. But to go further and say to a group that it is not permitted to engage in a particular type of work, such as adoptions, unless it also does adoptions for gay couples, that's a heavier hand from the state. And I would hope we could have a dialogue about this and not just accusations of bad faith from either side."

As of yet it is unclear how bitter the battle over Feldblum's nomination will be. Gay rights activist and American University law professor Nancy D. Polikoff recently reminded readers at The Bilerico Project about the hell that broke loose when then-President Bill Clinton nominated Roberta Achtenberg, the former executive director of the Lesbian Rights Project/National Center for Lesbian Rights, to be Assistant Secretary of HUD: "She was confirmed, but not before Jesse Helms referred to her as that 'damn lesbian.'"

If the Traditional Values Coalition, Focus on the Family, and the Alliance Defense Fund are able to recruit the likes of Glenn Beck or Rush Limbaugh in their anti-Feldblum crusade, both she and the Obama administration could be in for an avalanche of vitriol.

BUZZFLASH GUEST COMMENTARY

Bill Berkowitz is a longtime observer of the conservative movement and a frequent writer for Z Magazine, Religion Dispatches and other online publications. He documents the strategies, players, institutions, victories, and defeats of the American Right from a progressive perspective.

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