Feldblum, whose nomination was advanced in a closed session of the Senate Health Education, Labor, and Pensions Committee on December 12, published an article entitled “Moral Conflict and Liberty: Gay Rights and Religion” in the Brooklyn Law Review in 2006.
“Just as we do not tolerate private racial beliefs that adversely affect African-Americans in the commercial arena, even if such beliefs are based on religious views, we should similarly not tolerate private beliefs about sexual orientation and gender identity that adversely affect LGBT [lesbian, gay, bisexual, and transgender] people,” the Georgetown law professor argued.
Feldblum’s admittedly “radical” view is based on what she sees as a “zero-sum game” between religious freedom and the homosexual agenda, where “a gain for one side necessarily entails a corresponding loss for the other side.”
“For those who believe that a homosexual or bisexual orientation is not morally neutral, and that an individual who acts on his or her homosexual orientation is acting in a sinful or harmful manner (to himself or herself and to others), it is problematic when the government passes a law that gives such individuals equal access to all societal institutions,” Feldblum wrote.
“Conversely, for those who believe that any sexual orientation, including a homosexual or bisexual orientation, is morally neutral, and that an individual who acts on his or her homosexual or bisexual orientation acts in an honest and good manner, it is problematic when the government fails to pass laws providing equality to such individuals.”
Feldblum argues that in order for “gay rights” to triumph in this “zero-sum game,” the constitutional rights of all Americans should be placed on a “spectrum” so they can be balanced against legitimate government duties.
All beliefs should be equal, regardless of their source, Feldblum says. “A belief derived from a religious faith should be accorded no more weight—and no less weight—than a belief derived from a non-religious source.” According to Feldman, the source of a person’s belief – be it God, spiritual energy, or the five senses – “has no relevance.”
'Identity liberty' versus 'belief liberty'
Feldblum does recognize that elements of the homosexual agenda may infringe on Americans’ religious liberties. However, Feldblum argues that society should “come down on the side” of homosexual equality at the expense of religious liberty. Because the conflict between the two is “irreconcilable,” religious liberty -- which she also calls "belief liberty" -- must be placed second to the “identity liberty” of homosexuals.
“And, in making the decision in this zero sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people,” she wrote.
“Protecting one group’s identity liberty may, at times, require that we burden others’ belief liberty. This is an inherent and irreconcilable reality of our complex society,” Feldblum wrote.
“But in dealing with this conflict, I believe it is essential that we not privilege moral beliefs that are religiously based over other sincerely held core, moral beliefs. Laws passed pursuant to public policies may burden the belief liberty of those who adhere to either religious or secular beliefs.”
The full Senate must now vote on Feldblum's nomination, but a date for that vote has not yet been set.
As an EEOC commissioner, Feldblum would rule on cases involving alleged violations of federal employment law, including gender, age, and race discrimination.