Stanley Carlson-Thies

The Equality Act was proposed in Congress on July 23, 2015. Its goal is to eradicate discrimination on the bases of sex, sexual orientation, and gender identity. It preserves some religious freedom protections, but these are not sufficient, particularly given the wide reaching scope of the act. A different approach, incorporating protections for religious communities as well as LGBT communities, is needed.

The Equality Act might more accurately be relabeled the LGBT civil rights act. It seeks to add sexual orientation, gender identity, and sex (it includes some new pregnancy-related protections) to the set of characteristics that are currently broadly protected against discrimination under federal law-race, color, religion, national origin, and sometimes sex-by amending the classic civil rights laws. Those classic laws cover such major areas of activity as public accommodations, public education, federal grants and contracts, employment, housing, access to credit, and selection for jury duty. Some civil rights leaders have expressed disquiet at the idea of modifying laws that were so important to advancing the rights of African Americans.

Some of the proposed changes are noncontroversial-e.g., ensuring that a gay person is not arbitrarily excluded from juries, accessing credit, attending public sports events and exhibitions, entering public facilities, winning federal employment. But the precise significance of much of the bill (H.R. 3185; no Senate number yet) is difficult to assess because it is a collection of amendments to existing laws, proposing that certain terms be added or deleted from this section or that subsection. In addition, because religion, sex, sexual orientation, and gender identity all involve moral values and convictions about appropriate conduct, it is not clear how they will interact in the many domains that would be affected.

Yet key religious freedom problem areas are immediately evident-ways that religious exercise and faith-based organizations would be hampered:

• Employment. All but small employers, whether or not they receive any government funds, would be forbidden to discriminate based on sexual orientation. The existing religious exemption which enables religious employers to consider religion when deciding who to hire or fire, would remain.. But what will happen when a conservative religious employer, on the basis of its religious convictions, does not hire someone who claims to have the same religion but has a same-sex spouse? Will the government honor the employer’s definition of the religion, as it currently does and should continue to do, or the employee’s contrasting convictions? This part of the bill would subject all but small religious employers to the chilling legal uncertainty that currently faces those faith-based organizations considering accepting federal contracts to provide research or other services desired by the federal government.

• Federal funding. A religious organization that receives any kind of federal support (including cut-rate use of a federal facility) for any of its activities may have to abide by the expanded nondiscrimination requirements in every service program it offers, including those offered without any government funds and intended only for people of its own faith and moral code.

• Limits on RFRA. The scope of protection provided by the Religious Freedom Restoration Act, designed to protect religious exercise when the federal government issues laws and regulations, would for the first time be narrowed by law. If some practice of a religious organization is labeled as a violation of any of the newly expanded nondiscrimination requirements, the organization would no longer have a day in court to test the government’s policy. RFRA would in a highly significant way be undermined.

• Public accommodations. The places where the expanded nondiscrimination requirements are enforced would also be redefined by the Act to be very comprehensive, specifically including food banks, shelters, “service or care centers,” and health care organizations. What would this mean for religious organizations that provide services to the public as one choice among many offered to a society that has diverse convictions about religion, human sexuality, life, and relationships? Would a pro-life health clinic be declared discriminatory? Would a religious organization that freely offers a service, but shapes that service in some religious or moral way (the drug treatment program has religious activities built in), be accused of not properly serving the public?

• No protection against retaliation. The Equality Act retains religious exemptions already in the civil rights laws, yet the effective value of those exemptions would be eroded because no protection would be provided against the federal government declaring an exempt organization to be discriminatory (albeit legally free to discriminate) and thereby excluded from government funding, licenses, accreditation, and the like. Quite the contrary: the whole intent and effect of the Equality Act would be to label and render organizations that are guided by traditional morality to be unsuited for service in the public square.

Americans disagree about religion and whether and how it should affect employment decisions and services offered to the public. Americans disagree, too, about human sexuality and sexual relationships and about marriage and family, and about whether and how these important aspects of life should affect employment decisions and services offered to the public. Our historic civil rights laws, protecting a core but limited range of characteristics and including vital religious exemptions, provided essential civil rights protections while also protecting religious exercise. The expanded civil rights protections promised in the Equality Act, extending into areas of deep moral disagreement and religious differences, and lacking robust religious freedom protections, would significantly limit religious exercise and hamper the work of faith-based organizations.

Another bill, the First Amendment Defense Act (FADA), introduced in June, 2015 (S. 1598, H.R. 2802), seeks exactly to protect religious exercise by persons and organizations against government retaliation because the person or organization “acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”

FADA is a serious effort to protect religious freedom against foreseeable problems, problems that have been discussed at the Supreme Court or by scholars or that have arisen under state laws that protect sexual orientation or in other countries that have adopted laws like the Equality Act. It is open to criticism, though, for simply assuming that moral convictions should receive the same respect in law as constitutionally protected religious beliefs, and for elevating religious reasons without requiring that these be balanced against pressing government interests.

It is not at all evident that, in our time, the House of Representatives, much less the Senate, and much less the President, will support a bill that protects religious exercise against future challenges without at the same time addressing the concerns and the public sentiment that led to the introduction of the Equality Act.

Many in Congress and many in American society are supportive of the rights of religious organizations: they know the importance of protecting religious conviction and religious action, and they see the vital role played daily all across the nation by religious service organizations of every imaginable variety. Yet they have also become convinced that LGBT persons and relationships require new protections in federal law. Discrimination against gay people might not be identical to racism but it is not itself acceptable; the issue of gender identity may be complex in every way and yet ensuring equal treatment under the law requires new measures by the federal government.

It is likely that the Equality Act and the First Amendment Defense Act will each have both enough support and enough dedicated opposition to cancel each other out. For the sake of our divided society and its many organizations and people intent on living and serving in accordance with their (differing) deep convictions, another approach is needed.

Earlier in 2015, in Utah, the LDS Church (the Mormons) and LGBT advocates joined together to craft and then pass into law legislation that both secured religious freedom and for the first time protected LGBT people against discrimination in important areas.

In the same spirit, on July 24, 2015, Utah Senator Orrin Hatch, one of Congress’s premier defenders of religious freedom, gave on the floor of the Senate a ringing call for our society to respect religious freedom as the necessary protection for people and organizations who, because of religious conviction, dissent from the majority’s expectations, even when those expectations are codified in law. Yet this necessary protection for religious freedom is not, he said, a barrier to protecting other rights. Rather, it is just when the government is called to protect other rights that it must also protect religious freedom.

Sen. Hatch remarked:

“Surely we can work to end discrimination without retaliating against religious groups and schools for following practices that all agree are rooted in sincere religious belief. Surely there is space in anti-discrimination laws-such as the one recently introduced here in the Senate- for religious exemptions for religiously affiliated groups, schools, and organizations. My point today is that religious freedom is not optional. It is a fundamental human right that is central to our existence and identity as a nation. And it is the backdrop against which the current debates about social and cultural changes must proceed.”

There it is: “Surely we can work to end discrimination without retaliating against religious groups and schools for following practices that all agree are rooted in sincere religious belief.” That’s a call for a way in between FADA and the Equality Act, for a new approach that would secure equal rights for everyone.