October 21, 2009
Obama's EEOC Nominee Would Redefine Marriage
By Lee Cary
"We want to change the American workforce and revolutionize social norms...Our current public policies undermine the moral and political unit of same sex couples and families and that's a moral wrong that needs to be rectified."
- Chai Feldblum, Nominee to the EEOC (Equal Employment Opportunity Commission), Source
Chai Feldblum, Obama's nominee for the EEOC, aims to fundamentally change America's definition of marriage.
Feldblum is perhaps the nation's leading LGBT (lesbian, gay, bisexual, transgender) rights activist. A graduate of Harvard Law School, once Legislative Counsel for the American Civil Liberties Union (ACLU), she's now Professor of Law at Georgetown University. She's also a self-avowed lesbian.
Feldblum describes herself as a legislative lawyer, a term she claims to have coined. These are attorneys who "practice law in a political, advocacy context." Her long-standing agenda as a LGBT legislative lawyer is clear. "My own view, reflected in my writing over the past decade, is that government often appropriately legislates on a shared social vision of morality and that changing the public's moral assessment of same-sex sexual activity is thus key to achieving true equality for LGBT people. For some time, I have articulated this view as a requirement that the public must come to view homosexuality and heterosexuality as morally equivalent - that is, the public must believe that both straight sex and gay sex encompass equivalent moral ‘goods'...that there is nothing inherently immoral or wrong with two people of the same gender engaging in sexual conduct. That belief of moral neutrality must then be coupled with an affirmation that government has an obligation to advance what I term ‘statements of moral understanding'. Four of those statements are the following: it is good for human beings in society to feel safe, to feel happy, to experience and give care, and to live a life of authenticity. These four statements of moral understanding, coupled with a belief in the moral neutrality of homosexual conduct, should then result in a society in which gay people are protected from discrimination in employment, provided access to civil marriage, permitted to adopt children, etc." Feldblum believes "the reason government should provide marriage licenses to same-sex couples is in order to convey approval of gay relationships and gay sexual conduct." Her goal is to "rectify the tilt"  against those in the LGBT community. "[I]f one believes the duty of the government is to ensure that all people are treated ‘as equals' -- that is, with dignity and respect due to an equal -- then it is the responsibility of government to ‘rectify the tilts' for individuals in society -- either by changing the overall societal norm so that all people are able to stand upright together in an integrated fashion (the optimal approach), or by providing a reasonable accommodation just to the individual in a way that rectifies the tilt under that individual (the suboptimal approach)...[I]f the particular tilt at issue is related to a person's core, essential self-definition, then the government has a constitutional obligation to rectify an tilt created by background social norms." Every time the government "fails to affirmatively ensure that gay people can live openly, safely and honesty in society" it takes a stance in opposition to gay rights.
The subtext of Feldblum's definition of "liberty" for the LGBT community reaches beyond the same-sex marriage license and provisions against employment discrimination. Here are clues to the range of that reach:
"I, for one, am not sure whether marriage is a normatively good institution. I have moved away from the belief that marriage is clearly the best normative way to structure intimate relationships, such that government should be actively supporting this social arrangement above all others. I currently believe that marriage is a normatively ‘good' framework for most people to aspire to (I think), because it serves some very deep and legitimate human needs. But I also believe all of us are harmed, as members of a society seeking a common good, when society fails to acknowledge the wide array of non-marital intimate social structures that we as humans have ingeniously constructed to negotiate and make sense of the world." (bold added)
"It is precisely because such an interdependent framework helps sustain an individual's sense of self and stability that the state has a moral responsibility to support such frameworks. But why should the state support just marriage partners - and not other intimate partnerships that equally support the development of the self?" (bold added)
A document dated July 26, 2006, entitled "Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families & Relationships," is endorsed by scores of LGBT activists and others who support the statement. It begins:
"We, the undersigned -- lesbian, gay, bisexual, and transgender (LGBT) and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers -- seek to offer friends and colleagues everywhere a new vision for securing governmental and private institutional recognition of diverse kinds of partnerships, households, kinship relationships and families. In so doing, we hope to move beyond the narrow confines of marriage politics as they exist in the United States today."
The statement includes this rhetorical question:
"For example, who among us seriously will argue that the following kinds of households are less socially, economically, and spiritually worthy?
- Senior citizens living together, serving as each other's caregivers, partners, and/or constructed families
- Adult children living with and caring for their parents
- Grandparents and other family members raising their children's (and/or a relative's) children
- Committed, loving households in which there is more than one conjugal partner
- Blended families
- Single parent households
Among the list of households, those with "more than one conjugal partner" represent a particularly provocative category. Multiple conjugal partners would necessarily involve at least three persons. Perhaps more. Something akin to David Koresh's family?
Feldblum is an accomplished legal scholar. Her nomination to the EEOC is an Obama bow to the LGBT community, to be sure. Later, if Supreme Court Justice Ruth Bader Ginsberg should leave the court during Obama's tenure, will it surprise us if Chai Feldblum is on the short list of those considered as her replacement?
Meanwhile, Friedrich A. Hayek offered this relevant insight fifty years ago.
"The individual has little reason to fear any general laws which the majority may pass, but he has much reason to fear the rulers it may put over him to implement its directions. It is not the powers which democratic assemblies can effectively wield but the powers which they hand over to the administrators charged with the achievement of particular goals that constitute the danger to individual freedom today...[W]e find not only that most of the supporters of unlimited democracy soon become defenders of arbitrariness and of the view that we should trust experts to decided what is good for the community, but that the most enthusiastic supporters of such unlimited powers of the majority are often those very administrators who know best that, once such powers are assumed, it will be they and not the majority who will in fact exercise them." (The Constitution of Liberty, p. 116)
 "The Art of Legislative Lawyering and the Six Circles Theory of Advocacy," McGeorge Law Review, University of the Pacific, Vol. 34, Issue 4, p. 786.  "The Right to Define One's Own Concept of Existence: What Lawrence Can Mean for Intersex and Transgender People," The Georgetown Journal of Gender And The Law," Vol. VII, Number 2, Symposium 2006, pp. 117-118.  "Gay is Good: The Moral Case for Marriage Equality and More," Yale Journal of Law and Feminism 139 (2005), p. 8.  "Rectifying the Tilt: The Equality Lessons from Religion, Disability, Sexual Orientation and Transgender," 54 Main Law Review 159 (2003). (In this article, Feldblum includes a drawing [p. 182] depicting a stick person on a tilted plain adjacent to two other stick people on a horizontal plain.)  "The Right to Define One's Own Concept of Existence: What Lawrence Can Mean for Intersex and Transgender People," pp. 129-130.  "Moral Conflict and Liberty: Gay Rights and Religion," 72 Brooklyn Law Review xx (2006); and chapter in Religious Liberty & Same-Sex Marriage, Becket Fund (2006), p.18.  "Gay is Good: The Moral Case for Marriage Equality and More," p. 5.  "Gay is Good: The Moral Case for Marriage Equality and More," p. 39.