The Inequality of the Equality Act

Bettina KrauseMelissa Reid November/December 2019
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The Seventh-day Adventist Church, which publishes Liberty, has endorsed the Fairness for All Act’s balanced, principled approach to the ongoing conflict between religious freedom and LGBT rights.

On May 17, 2019, with a wide majority, the U.S. House of Representatives passed the Equality Act (HR 5). For advocates of the legislation, this first-step victory had been a long time in the making. The earliest version of the bill —which aims to amend federal civil rights laws to protect “sexual orientation” and “gender identity” (SOGI) in ways similar to race, sex, and religion—was first introduced into Congress in 1974.

It’s clear that political and public support for legislation such as the Equality Act has grown significantly in recent years. There is an increasing awareness that current federal law does not uniformly safeguard the civil rights of LGBT Americans. Instead, a patchwork of state protections exists, with some states prohibiting discrimination on the basis of sexual orientation but not gender identity; some prohibiting discrimination based on sexual orientation and gender identity in public and private employment, but not in other areas such as housing and public accommodation; and some offering no such protections at all.

Thus, the Equality Act seems like a commonsense way to extend consistent protection to LGBT individuals across a broad spectrum of U.S. civil rights laws, including employment, housing, public accommodation, jury duty, and credit. Many who track human rights legislation, however, see reasons for concern—both in the actual provisions of the Equality Act and in the rhetoric that surrounds it.

Red Flags

When Democratic presidential candidates gathered October 10 in Los Angeles for a town hall on LGBTQ issues, they left no doubt as to their support for the Equality Act, with each candidate pledging to make passage of the legislation a priority for their administration.

Beto O’Rourke went the furthest of the candidates, suggesting that churches that hold to traditional views of marriage should be punished by withdrawing their tax-exempt status. “There can be no reward, no benefit, no tax break, for any institution or organization in America that denies the full human rights and full civil rights of every single one of us,” he said.

Yet in spite of rhetoric that is patently dismissive of those who hold to traditional view of marriage and sexual identity, supporters of the Equality Act are adamant that the legislation poses no threat to religious freedom protections. In reintroducing the legislation in March this year, Representative David Cicilline (D-Rhode Island) said, “I don’t think faith groups have any reason to be afraid of this bill.”

“The Civil Rights Act does some very careful balancing between two important values, freedom of religion and freedom from discrimination, and we think it strikes the right balance, and the Equality Act will continue that.”

Given these conflicting messages, it’s not surprising that there continues to be a great deal of confusion regarding the real impact of the Equality Act.

Uncertainty

It’s impossible to say with any precision how the Equality Act would ultimately reshape religious schools, associations, and other institutions that continue to hold to traditional views of human relationships. However, what is clear is that by introducing this uncertainty, the Equality Act would effectively set the stage for a mass of litigation that could eventually upend a massive swath of current legal protections for religious expression.

There are a number of areas that are particularly troubling for religious freedom advocates. A major concern would be the expansive definition of “public accommodations.” The Equality Act extends SOGI protections to virtually every aspect of public life outside of one’s home. A key question, therefore, is: If the bill became law, would there be circumstances in which places of worship would be declared places of public accommodations, and so fall within the ambit of strict SOGI nondiscrimination requirements? How would the use of a church property—either for community events, or as voting facilities, for instance—impact this equation?

The position of religiously affiliated schools and colleges could be equally tenuous. The Equality Act makes no provision for schools whose religious ethos includes a traditional understanding of marriage and sexual identity. Staff hiring, curriculum, and student behavior codes would almost certainly all become legally contested areas.

Perhaps the clearest evidence of the Equality Act’s fundamental hostility toward religious freedom protection is its language explicitly excluding the application of the Religious Freedom Restoration Act (RFRA) in cases in which religious and SOGI rights conflict. In this the Equality Act would thus shut down a vital avenue of federal protection for people of faith.

In explaining this aspect of the Equality Act, proponents have argued that this is essential so that religious freedom rights don’t become “weaponized” against LGBT individuals. Or as it’s also commonly put: “Religious freedom should be used as a shield, not a sword.” And yet this characterization betrays a fundamental lack of understanding about the purpose and operation of RFRA—a bipartisan piece of legislation that was passed in 1993 by a Democratic-controlled Congress and signed into law by a Democratic president. Indeed, RFRA claims merely invoke a balancing process between a religious freedom right, on one hand, and the interest of the government in achieving a specific aim, on the other. It is not, as some people claim, a “trump card” for religious people. Under RFRA, sometimes religious claimants win, but just as often they do not.

Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance, points out that the Equality Act fails to follow the pattern of other federal civil rights laws, which do not treat all protected classes alikebut include, instead, varying limits, thresholds, and exemptions that “albeit imperfectly, both define where and when some act of differential treatment is wrong and illegal and where and when such acts are acceptable and legal.” *

On the other hand, notes Carlson-Thies, “such careful work is just what the Equality Act does not do as it adds new protected classes. The Equality Act simply labels as illegal discrimination any differential treatment related to SOGI. It posits that all necessary religious protections are already present in the civil rights laws. Then it strips away the religious freedom protections that Congress has said should apply to all federal laws and actions. By dramatically narrowing the scope of application of RFRA, which is the premier federal statutory protection for religious freedom, the Equality Act seeks to declare that, by definition, religious exercise claims can never outweigh claims of SOGI discrimination.”

There is a deep irony in attempting to strengthen the civil rights of one group in society in a way that significantly and deliberately weakens the civil rights of another. Yes, the Equality Act can be seen as a much-needed legislative response to real and serious concerns. Yes, there are instances in which religious freedom claims and anti-discrimination claims have conflicted and will continue to conflict. Unfortunately, the Equality Act, as currently formulated, does not provide a balanced way forward.

* Stanley Carlson-Thies, “A Better Way Than the Equality Act,” Institutional Religious Freedom Alliance, April 25, 2019, https://www.irfalliance.org/a-better-way-than-the-... accessed October 15, 2019.

Fairness for All Act

There is growing bipartisan interest in balanced legislation that ensures lasting religious freedom and provides protections for LGBT Americans. Unlike the nebulous proposition proffered by the Equality Act, a balanced proposal can be enacted into law and resolve many of the key conflicts between religious freedoms and LGBT rights.

Under the leadership of Representative Chris Stewart (R-Utah), a number of members from both parties are in negotiations to introduce the Fairness for All Act in the U.S. House of Representatives. Companion legislation is also expected to follow in the Senate. This proposal echoes legislation that has been already been enacted in many states, including Utah.

This bill will have the support of many state and national LGBT organizations and diverse religious organizations—organizations that disagree on the definition of marriage but agree on supporting LGBT nondiscrimination and broad religious rights.

Important Elements of Fairness for All Act

  • Prohibits LGBT discrimination in employment
  • Protects churches, religious schools, and other religious charities by ensuring they can employ those who adhere to their beliefs and standards.
  • Prohibits LGBT and sex discrimination in p ublic accommodations.
  • Protects religious properties from being treated as places of public accommodation.
  • Protects the conscience of medical providers and marriage counselors.
  • Prohibits LGBT and sex discrimination in federal funding.
  • Protects ability of religious adoption and foster care providers to continue to serve using a model drawn from the longstanding federal child-care program.
  • Protects houses of worship, religious schools, and other faith-based entities that receive federal funds (e.g., Pell grants, security grants, school lunch) so they can continue to operate according to their religious beliefs.
  • Guarantees greater personal privacy for everyone in restrooms, showers, and similar facilities.
  • Governments—including state and local governments—cannot retaliate against protected religious persons and organizations.
  • Prohibits LGBT discrimination in housing, credit, and jury service.
  • Abortion-neutral—no change in federal abortion law or policy.
  • Preserves Religious Freedom Restoration Act.

The Seventh-day Adventist Church, which publishes Liberty, has endorsed the Fairness for All Act's balanced, principled approach to the ongoing conflict between religious freedom and LGBT rights. To learn more about the Fairness for All Act, visit www.fairnessforall.org.

Article Author: Bettina Krause

Bettina Krause is the editor of Liberty magazine.

Article Author: Melissa Reid

Melissa Reid is the associate editor of Liberty.