Very quick RI:

President Trump recently renominated Chai Feldblum, an Obama appointee, to the Equal Employment Opportunity Commission. Senator Mike Lee is putting a hold on her nomination, citing her views on LGBT issues, and suggesting that presents a threat to religious liberty. You can read his editorial here: https://www.dailysignal.com/2018/02/14/trump-should-withdraw-nominee-would-oppose-religious-liberty/

Let's not go into the broader culture wars in BE. However, I have a specific issue with the op-ed. I don't think Senator Lee understands what "zero sum" means. He's simply using it as a scare quotes term.

“The [Equal Employment Opportunity Commission] has jurisdiction only over employment,” Feldblum told the Washington Blade in 2015. “But other federal agencies that enforce sex discrimination provisions often look to our interpretation for guidance in interpreting the laws they enforce.”

And don’t think for a second that you, your family, and your neighbors will be left alone if Feldblum gets her way. Feldblum has described modern-day politics as a “zero-sum game,” where rights for LGBT Americans are secured only by curtailing the rights of religious Americans.

…

As the Supreme Court acknowledges, America’s tradition of religious freedom embraces all. Rather than a “zero-sum game” that pits Americans against each other, we should work to build an America where “all possess alike liberty of conscience and immunities of citizenship,” as George Washington wrote in 1790.

Saying that there is a "zero sum conflict" between LGBT people and religious Americans has a specific meaning. It's not saying that people are necessarily pitted against each other - it means that when we make policies decisions - especially about conflicting liberties - we should recognize that moving the line one way or another may harm the other group.

This is very clear in the source of the zero sum quote, a 2006 law review article.

Ensuring that LGBT people can live honestly and safely in all aspects of their social lives requires that society set a baseline of non-discrimination on the grounds of sexual orientation and gender identity. If individual business owners, service providers and employers could easily exempt themselves from such laws by making credible claims that their belief liberty is burdened by the law, LGBT people would remain constantly vulnerable to surprise discrimination. If I am denied a job, an apartment, a room at a hotel, a table at a restaurant or a procedure by a doctor because I am a lesbian, that is a deep, intense and tangible hurt. That hurt is not alleviated because I might be able to go down the street and get a job, an apartment, a hotel room, a restaurant table or a medical procedure from someone else. The assault to my dignity and my sense of safety in the world occurs when the initial denial happens. That assault is not mitigated by the fact that others might not treat me in the same way.

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. 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. 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. If the government tolerated the private exclusionary policies of such individuals in the commercial sector, such toleration would necessarily come at the cost of gay people's sense of belonging and safety in society. 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 people.

But that is not to say that we should not acknowledge that this zero-sum game has resulted in a burden on some individuals' belief liberty and that we not be forced to articulate why such a burden is appropriate. A government's reasons for burdening liberty should be, as Professor Rebecca Brown argues, "accessible to all in a meaningful sense." Brown defines these as reasons that "have some public and secular component to them and [do] not rest entirely on personal moral belief systems not universally shared." While I am not sure I would use Brown's formulation of a "personal moral belief system not universally shared," I do believe that the reasons given by the State must "reflect the public good. " And ensuring that members of the public who have a morally neutral characteristic are able to live without fear or vulnerability of discrimination based on that characteristic certainly seems to be a reason that reflects the public good.

To take specific cases likely to come up to the EEOC: Should firms have the right to refuse to employ LGBT people? Or should LGBT people have the right to non-discrimination in employment? As far as I can tell, this is a zero sum game - bargaining over where the line should be drawn.

(If anyone has a plausible reading of how the conflict is non-zero sum, I'd love to hear it!)