Image credit: Dan Weber, Seventh-day Adventist Church

By Dr. Stanley Carlson-Thies

H.R. 5331, the Fairness for All Act, was introduced into the House of Representatives on December 6, 2019, by Representative Chris Stewart (R-Utah). Fairness for All (FFA) would add to federal civil rights laws new protections for LGBT people while strengthening corresponding protections for religious organizations, religious freedom, and other rights.

IRFA has played a lead role in conversations dating back more than four years–conversations that brought together religious freedom advocates and LGBT rights advocates in a search for a constructive alternative to the bitter, heated, and continual conflicts in our society between gay rights and religion.

The Fairness for All bill has drawn significant support, including from top religious freedom scholars. It has also drawn criticism, both from some religious freedom advocates and from some LGBT civil rights leaders. The former warn that adding the concepts “sexual orientation” and “gender identity” to federal civil rights law blesses false views of human sexuality and intimate relationships. The latter charge that FFA amounts to protecting discrimination against LGBT people as long as the offenders have a religious excuse.

Fairness for All urges that our society must wrestle with our deep differences over marriage and human sexuality in a new way. It is obvious that the historic consensus about marriage and sexuality is long gone. What should the law do in response? Should it now enforce on everyone the newly dominant view, declaring the historic beliefs and practices to be bigoted and illegal? And yet the historic views, which continue to be professed and practiced by many theologically conservative people and organizations, are in themselves positive convictions that are not aimed at denigrating others. Rather than one side wins all, is there a way forward of mutual tolerance, of “both-and laws” and social patterns?

Fairness for All challenges us to renew our national commitment to protecting the freedom for everyone to live by conviction, even when we each are sure that others are profoundly wrong. The law should not try to coerce us to change those convictions, but it ought to enable us to live together despite, and with, our deep differences of religion, values, identities. For this, we must utilize the great resource of our society that enables diverse people to live side by side: our diverse and thriving civil society and market.

Government compels uniformity. In contrast, in our nonprofits, faith-based charities, and houses of worship, and in the sparkling variety of enterprises—embodying different values, attracting diverse customers and diverse employees. . . in these many kinds of non-governmental organizations, varied groups of people gather voluntarily around different shared values. And simply because some gather around one conviction and set of practices does not stop others from gathering to live and serve according to a different view.

Fairness for All identifies places of uniformity and the many places for diversity. In places of uniformity, it identifies guidelines for interacting together without giving up our differences. Instead of declaring one view the victor and the other the defeated, it sets up patterns and rules for living together as good neighbors—neighbors who need not agree but must not use the force of law to coerce each other to pretend we all agree. The proposed changes to federal civil rights law include strong protections for First Amendment rights, for religious organizations, and for small companies, along with the new LGBT rights–strong protections, not adequately provided in state and local nondiscrimination law, for people and organizations holding to the historic views. The goal is to protect rights on all sides, given our dividedness over fundmaental matters.

The Fairness for All Act will broadly protect LGBT people against discrimination in employment, housing, public accommodations, government-funded services, and consumer credit—protections that now exist consistently across fewer than half the states. At the same time, it would protect the historic convictions about marriage and sexuality, by establishing that it is not discriminatory and illegal, for instance, for a Catholic school to maintain behavior standards based on Catholic doctrine, a Protestant adoption agency to place children only with married mother-father families, or an Orthodox Jewish synagogue, with its conservative standards for religion, sex, and sexuality to receive government funds to protect itself against terrorist attacks. Houses of worship would not lose their freedom to maintain their own practices simply because they are sometimes open to non-members. Doctors would not turn away a patient simply for being transgender, but also would not be compelled to violate conscience by facilitating transitions. Small businesses, such as wedding services vendors, would be exempt from the new federal civil rights prohibitions, but employees in larger companies would gain new protections to follow their religious practices. Companies would have to accommodate the request of anyone for more privacy in bathrooms and locker rooms.

Living together despite our differences: that is the goal of Fairness for All.

Working out how to make that possible is a matter of countless scenarios and details rather than simply asserting the principle of religious freedom or the principle of equality. That is why IRFA believes that legislation, and not only vigorous court defenses, is essential to safeguarding institutional religious freedom. What we need are guidelines in the law about what to do when the general principles intersect or conflict. And we need legislation because people and organizations on all sides need protection right away. A court-only strategy exposes all religious schools, adoption agencies, and countless other faith-based organizations to dangers such as unacceptable restrictions on employment practices, loss of accreditation and government funds, and even loss of tax-exempt status, while a case slowly makes its way through the courts.

IRFA helped to initiate the discussions that have now led to the Fairness for All Act because we are committed to the historic Christian understandings of marriage and sexuality and are determined that the law must protect people and organizations with such convictions and practices. But the law must protect these views and ways while it also protects the civil rights of others, and it must be a legislative proposal that can gain broad support even though there is no broad majority for conservative morality.

Fairness for All is a gift and a challenge to our nation: can we, will we, even as we are divided in so many ways, collaborate to create legal guidelines that enable us to live together as good neighbors who dispute about our differences peaceably, and not with legal threats, mobs, and coercion? Current federal civil rights laws are written to balance different rights. Our religious freedom heritage has developed structured ways for citizens, with our very different faith and secular convictions, to live together: unity with diversity, a model for the world. Our challenge today is to innovate new ways to combine unity and diversity when we citizens differ so profoundly on the meaning of marriage, sexuality, and human identity.