Ed Whelan: Gay DOJ Lawyers Are Prejudicing Briefs Against Religion

The National Review’s Ed Whelan seems to think the Department of Justice is prejudiced against religion because it has gay lawyers working for it. He argued as much in a blog post last week, suggesting that Aaron Schuham and Sharon McGowan — who he has confirmed have same-sex partners — are contributing to anti-religious “hostility” by writing briefs in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC:

Thus, insofar as personnel is policy, it may well be that the Obama DOJ’s hostility to the ministerial exemption in the Hosanna-Tabor case is part and parcel of a broader ideological agenda that would have gay causes trump religious liberty.

First of all, the case has nothing to do with LGBT issues whatsoever. A teacher working for a religious-run school was fired because she has narcolepsy, and the case is about whether or not the “ministerial exception” applies to her employer — in other words, does the organization’s religious affiliation exempt it from complying with the non-discrimination protections in the Americans with Disabilities Act?

As Truth Wins Out’s Evan Hurst and Mother Jones’ Adam Serwer point out, Whelan seems to not want gay people anywhere near the law, “lest it get all gayified.” He really doesn’t have a compelling argument to add to the Hosanna-Tabor case — he just wanted another excuse to vilify gay people and President Obama’s DOJ. This should not surprise, as his anti-gay and anti-Obama credentials are well documented in congressional record. In 2011 alone, he has testified twice before Congress defending the Defense of Marriage Act and criticizing the president for not defending it, once in April and once in July. He also has expressed previous concern about gays prejudicing the law, suggesting Judge Vaughn Walker’s ruling against Proposition 8 should be vacated merely because Walker is gay. It’s interesting that opponents of equality like Whelan want gays and lesbians to exist outside of the law except when the law limits their rights.


One last point worth mentioning is that Whelan’s assumption that people who are gay are prejudiced against religion is extremely short-sighted. He essentially leaves no room for gay people to be religious, even though many are. This is not surprising coming from Whelan, as it further stigmatizes gays as supposedly existing outside of society’s moral structures while reinforcing the notion that anti-gay religious believers are the real “victims” in the gay rights struggle. If Congress continues to invite Whelan to be an “expert” on laws that affect gays and lesbians, they should clarify that he’s really only an expert when it comes to demonizing gays and lesbians.