In response to charges that the Equality Act (H.R. 5), as introduced, will damage religious freedom, Representative David Cicilline (D-R.I.), chief sponsor of the bill, told Politico Huddle on February 10, “The Equality Act is very careful not to disturb the existing religious exemptions, so whatever religious exemptions exist under current law remain in place…” This is the same defense that the Human Rights Campaign has given. HRC says that religious protections are legitimate, but cannot be limitless; they must not be misused to enable religious people and religious organizations to override nondiscrimination requirements. Protections provided in the Equality Act, HRC argues, are adequate and appropriate because (since the Equality Act amends existing civil rights laws) it “retains the exact same religious exemptions that already exist [in the case of] every other protected characteristic.” (“The Equality Act and Religion,” HRC, Jan. 19, 2019).

These are not adequate responses to the very serious reality that, in seeking to advance LGBTQ civil rights, the Equality Act in its current form will severely limit the constitutional freedoms of religious organizations and religious people who hold alternative convictions about marriage and human sexuality. This analysis has been made by many religious organizations, religious leaders, and religious freedom advocates. By no means are all critics of the bill opposed to modifying federal civil rights laws to protect, nation-wide, the rights of LGBTQ people.

A few of the religious concerns:

1. RFRA. Rather than leaving existing religious freedom protections intact, the Equality Act as introduced specifically undermines the main federal statutory protection for religious freedom, a protection that currently applies to every civil rights law and regulation: the Religious Freedom Restoration Act. RFRA was adopted nearly unanimously by Congress and signed into law to great acclaim by President Clinton in 1993. It guarantees no particular outcome but does ensure that religious organizations and persons can make a case in court if they believe that their religious exercise has been substantially burdened. The Equality Act would eliminate that balanced protection for religious freedom when a person or organization is charged with discrimination.
2. Public accommodations. Title II of the 1964 Civil Rights Act, which currently prohibits discrimination on the basis of race, color, national origin, and religion in “public accommodations,” does not include a religious exemption—but it also defines “public accommodations” very narrowly so that no exemption is needed. The Equality Act as introduced, in extreme contrast, vastly broadens the entities and services deemed to be public accommodations. It is likely, for example, that many actual houses of worship—mosques, synagogues, churches, temples—would be public accommodations according to this extreme expansion. But the equality bill provides no corresponding religious exemption to protect the religious beliefs and practices of these core First Amendment religious organizations.
3. Federal funding. Title VI of the 1964 Civil Rights Act currently bans discrimination on the basis of race, color, and national origin in federally funded programs and activities. It reaches broadly where it goes, banning such discrimination throughout an organization even if only a small subset of activities receives the federal support. It has no religious exemption, nor is one needed. The Equality Act, as introduced, will for the first time also bar discrimination in federally aided programs and activities on the basis of sex, sexual orientation, and gender identity, but without adding the religious exemption that would then be needed and fitting. As written, the Equality Act, for example, would require some deeply religious colleges and universities to abandon their conduct standards concerning sexuality and marriage if a faculty researcher is to be eligible to conduct federally funded health research. Houses of worship—too often the targets of terrorism and hate crimes—would be ineligible for nonprofit security grants if their religious beliefs require sex-differentiated seating in worship services. Many religious schools would have to exit the school lunch program, hurting poorer families who desire their children to attend a school that shares their religious beliefs.
4. Employment. In its recent Bostock decision, the U.S. Supreme Court ruled that Title VII of the 1964 Civil Rights Act, in banning employment discrimination on the basis of sex, also bans sexual orientation and gender identity employment discrimination. The current language of the Equality Act seems simply to write that Bostock decision directly into Title VII. Yet the Supreme Court took care to confine its decision to secular employers. It pointed out very specifically that its interpretation of the ban on sex discrimination might apply differently to a religious employer because the religion-based employment decisions of religious employers are protected in multiple ways, including in Title VII itself. What would be the different legal requirements? The Supreme Court has not yet ruled on a similar case that involves a religious employer. The Title VII religious exemption protects religiously based employment decisions by religious employers, but how does the exemption apply after Bostock? The Equality Act, as introduced, simply pretends that there is no major issue that needs to be considered.
5. Civil rights laws are differentiated. Current federal civil rights law, in fact, does not treat every protected characteristic identically and thus religious exemptions and other constitutional protections are applied in variable ways. 1 People are maximally protected against racial discrimination, for example, but, as just noted, Title VII, while banning employment discrimination on the basis of religion, specifically permits religious employers to consider religion when making employment decisions.
6. Changes necessitate adaptations. There is every reason to expect that when a provision in civil rights law which includes a religious exemption is modified, the religious exemption, too, must be modified in order to provide the same protection as before. And provisions lacking religious protections may now need them. Sexual orientation and gender identity are distinct new protective categories that deal with teachings and practices central to many religions and their organizations: guidance on sexual intimacy, the nature of marriage, the identity of males and females. We must expect that existing protections will be inadequate when new protected categories are added to various parts of civil rights law. The current language of the Equality Act proves the need for expanded religious freedom and institutional religious protections.

In sharp contrast to the Equality Act as introduced, the Fairness for All Act (H.R. 1440) takes specific note of the many ways that adding a ban of sexual orientation and gender identity to various sections of federal civil rights law will affect existing religious freedoms. It then proposes specific and detailed ways that civil rights laws can fairly protect the civil rights of all.

1.Jonathan Rauch, “Nondiscrimination for All,” National Affairs (Summer 2017), https://www.nationalaffairs.com/publications/detail/nondiscrimination-for-all