Chelsea Langston

On October 6, 2015, White House Press Secretary Josh Earnest said that the Obama administration had not yet decided to support the Equality Act, the proposed comprehensive LGBT nondiscrimination legislation before Congress. Does this reluctance create an opportunity for a better approach to securing LGBT rights and also religious freedom rights?

Asked whether the President was ready to endorse the Equality Act, Earnest said, “I’m not prepared to say that yet…This is a piece of legislation that the White House does continue to review. There are significant consequences to this bill going into effect. It has an impact on housing law and a variety of other policies in the federal government, so it’s something that’s still being carefully reviewed by the administration.” The Equality Act would amend the Civil Rights Act of 1964 to include sexual orientation, gender identity and sex as protected classes against discrimination in the areas of public accommodations, employment, housing, public education, federal funding, credit opportunity, and jury selection.

Why the administration’s reluctance? Not because of the intent of the bill. Ernest stated: “We must ensure all Americans are treated equally under federal law…The President believes the passage of comprehensive legislation that protects LGBT Americans from discrimination would mark an important step toward that outcome.” But this particular bill, Earnest said, was still being reviewed by the administration.

What to make of this? The bill was introduced in the summer, so there has been ample time for it to be reviewed. Might the administration have some qualms about the approach taken by the Equality Act?

Supporters of faith-based organizations should hope that the administration is considering how to bring together its support for expanded federal LGBT protections with its policies in favor of ensuring a welcoming environment in federal programs for participation by faith-based organizations.

As to the latter: starting back in his presidential campaign of 2008, Barack Obama has maintained the federal faith-based initiative and its work to create a level playing field in federal funding programs and unfunded partnerships so that faith-based organizations have the same opportunity to participate as secular organizations do. And the administration has stood against outside pressure to limit the exemption in federal law that permits religious organizations to consider religion when making staffing decisions.

Most recently, as noted in a blog post from the White House Office of Faith-Based and Neighborhood Partnerships, the administration has maintained the equal treatment approach as it has proposed slight changes to the federal regulations concerning government partnerships with faith-based organizations:

“[T]he Obama Administration is taking an important step toward common-ground reforms that strengthen the partnerships the federal government forms with faith-based and community organizations for the purpose of serving people in need…[These reforms] assure religious providers of their equal ability to compete for government funds and of continuing protections for their religious identity like the ability of providers to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents.”

Is the administration concerned that the Equality Act, as introduced, with its sweeping protections for LGBT rights but very limited protection for religious freedom, would undermine its efforts to maintain a hospitable environment in federal funding for faith-based organizations? The Equality Act, for example, would bar from federal grants and contracts any organization that because of religious hiring and a conservative conduct standard for employees was deemed discriminatory—even though it would serve everyone eligible for the federally funded services.

Although there is no perfect solution that can please everyone, it is possible for LGBT rights to be expanded in a way that does not extinguish the freedoms faith-based organizations need. In a recent Philadelphia Tribute article that covered a debate on religious freedom and sexual freedom, law professor Robin Fretwell Wilson said,

“the major takeaway is that we see religious freedom as being at odds with gay rights. It doesn’t have to be that way. [W]e can advance the interests of the LGBT community and make it possible for people to adhere to a traditional view of marriage… It happened with the Utah Compromise. We need to have more solutions like that to problems instead of solutions that have us being at odds all the time and litigating.”