In a surprise move, President Donald Trump renominated Chai Feldblum to a five-year term on the Equal Employment Opportunity Commission (EEOC), over the vigorous objections of Republican lawmakers and his supporters on the religious right.
Feldblum, originally appointed to the agency by former President Barack Obama, is an intensely progressive agency official who has broken with the administration in key policy areas since Trump assumed office in January of 2017. Before joining the Commission, she regularly advocated for the supremacy of LGBT rights over religious liberty as a professor at the Georgetown University Law Center.
“Commissioner Feldblum has a range of policy views that strike the general public as out of the mainstream,” a former senior career official at the EEOC told The Daily Caller News Foundation.
The EEOC is a small but powerful agency charged with enforcement of the nation’s workplace discrimination laws. The agency is led by five Senate-confirmed commissioners. Traditionally, three commissioners are members of the ruling party, and two are members of the opposition party.
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Appointees for independent commissions like the EEOC are selected in consultation with Senate leaders. There will be three vacancies on the five-member commission by summer. As such, Trump nominated two Republicans, Janet Dhillon and Daniel Gade, and one Democrat, Feldblum.
Feldblum joined the agency through a recess appointment in March 2010. The Constitution’s recess appointment power allows the president to fill vacant government posts when the Senate is not in session, though their commissions expire at the end of the congressional term. She was subsequently confirmed as a commissioner in Dec. 2010 and reconfirmed to a five-year term in Dec. 2013. Just two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, voted for her confirmation.
She is a graduate of Harvard Law School and clerked on the U.S. Supreme Court for Justice Harry Blackmun.
GOP Sen. Mike Lee of Utah, to date the most vocal opponent of her reappointment, says Feldblum’s views are radical, even as compared to a typical Democratic appointee to the agency. He urged the president to select a different Democrat for the post.
“If Feldblum were a typical Democrat, it might make sense to let her nomination proceed through the Senate along with her two Republican colleagues,” Lee said in a statement. “But Feldblum is no typical Democrat. Her radical views on marriage and the appropriate use of government power place her far outside even the liberal mainstream.”
A vote has not yet been scheduled for her confirmation.
A Dim View of Religious Freedom
As a law professor at Georgetown, Feldblum endorsed polygamy, defended burdening religious practice to advance LGBT equality, and questioned the value of marriage as a social good.
In one 2005 article, Feldblum articulated a positive moral case for gay sex, and criticized ideological fellow travelers for ducking normative questions about homosexuality. In the course of that project, she surveyed debates among feminists and queer theorists about the utility of marriage as an institution, noting some scholars believe it institutionalizes oppressive social forces. Others, she says, believe gay couples can help solidify important norms and mores if given access to the marital union.
Feldblum is decidedly agnostic on this question, concluding that marriage is not obviously beneficial to society, since it excludes other structures of human relations:
I, for one, am not sure whether marriage is a normatively good institution. 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.
In this connection, she was also a signatory to a 2006 statement called Beyond Marriage, which calls on government to recognize other forms of family organization, including “committed, loving households in which there is more than one conjugal partner,” that is, polygamy or polyamory.
She asked for her name to be removed from the statement when she was nominated for the EEOC, claiming she had not carefully read its contents before signing her name.
Elsewhere in her academic writings, she wrote approvingly of Justice David Souter’s concurring opinion in Washington v. Glucksberg, in which Souter urged the Supreme Court to take a broader view of the liberty interests protected by the Fourteenth Amendment. His opinion asserts that liberty interests necessarily fall along a spectrum, and that government may legitimately burden interests which fall on one end of that line.
Feldblum endorses and develops this framework by assigning liberty interests to three non-exclusive categories, which she then places along Souter’s spectrum. Under this paradigm, she believes infringements on religious belief which help secure LGBT rights are legally justifiable, as “bodily and identity liberties” should enjoy precedence over “belief liberty” in a zero-sum universe.
Feldblum’s article is clearly sensitive to religious dissenters. As she refines her argument, she takes their objections seriously and chides judges for failing to appreciate the depth of their conviction. Still, she suggests there are only ever winners and losers where constitutional rights are concerned.
“Thus, for all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried, straight couples and all gay couples, this is a point where I believe the ‘zero-sum’ nature of the game inevitably comes into play,” she wrote. “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.”
At EEOC Feldblum Openly Breaks with Trump Administration
Since joining the agency, Feldblum has been at the vanguard of an effort to expand existing civil rights laws to protect LGBT workers that has placed her directly at odds with the Trump administration. Though EEOC is an independent agency insulated from political pressure, it’s quite rare for federal agencies to pursue policies directly at odds with the executive branch.
As a law professor, she was a principal architect of the Employment Nondiscrimination Act (EDNA) which would make it unlawful to discriminate against employees on the basis of sexual orientation. Congress repeatedly declined to enact such protections, so academics and cause litigators began pursuing other alternatives.
One such alternative, which EEOC embraced under Feldblum’s leadership in 2015, argues that current workplace discrimination statutes already secure protections for gay workers. The argument is intuitive and has an elegant internal logic: Title VII of the Civil Rights Act of 1964 provides that no person may be discriminated against in employment by reason of their race, color, religion, sex, or national origin. Since discrimination against homosexuals is generally the product of sex-based stereotypes or gender norms, anti-gay discrimination is just the sort of sex discrimination the text of the Civil Rights Act already outlaws.
This position is buttressed by a 1989 Supreme Court case, which explained that the test for determining the validity of gender-based classifications must be applied “free of fixed notions concerning the roles and abilities of males and females.”
Two federal appeals courts based in New York City and Chicago have endorsed this theory of the Civil Rights Act, though a third court in Atlanta has rejected it.
The former career official said the agency’s actions on Title VII are at odds with the president’s deregulatory agenda, to the extent that they’ve forced the private sector to comply with an entirely new set of workplace discrimination rules, while diverting resources away from other enforcement areas like sexual harassment.
“By pushing these issues, which are anathema to the current administration, EEOC takes away resources from the vigorous enforcement of existing laws,” the former career official said.
While Feldblum’s argument has a great and growing number of supporters, her renomination to EEOC is all the stranger in light of it, as Trump’s own Justice Department has taken the exact opposite position on Title VII, and rebuked the agency for embracing such a sweeping view of the law.
In an unusual move, DOJ filed an amicus (or “friend-of-the-court”) brief in a 2017 employment discrimination case before the 2nd U.S. Circuit Court of Appeals. The case, Zarda v. Altitude Express, began in 2010, when a skydiving company fired Donald Zarda for making a remark about his sexuality to a patron. Zarda is gay and sued the company for a Title VII violation.
At an earlier stage of the litigation, the EEOC filed an amicus brief supporting Zarda. The Justice Department filed its own brief in July 2017, expressly rejecting the agency’s argument.
The Justice Department and a federal agency seldom take opposite positions in federal court.
Beyond rebutting the EEOC’s brief, DOJ also emphasized the Commission has no authority to speak for the federal government, a barely-concealed jab at an agency gone rogue — at least in the Trump administration’s view.
“The EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade,” the DOJ filing reads.
Attorney General Jeff Sessions himself repudiated Feldblum’s position in an Oct. 2017 memo circulated to all federal prosecutors.
“Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status”
“This is a conclusion of law, not policy,” it adds.
“That is shocking and extremely rare,” the career official told TheDCNF of DOJ’s actions. “It speaks volumes about what’s happening at the EEOC.”
This report, by Kevin Daley, was cross posted by arrangement with the Daily Caller News Foundation.