There is a Better Way Forward Than the Equality Act

(ANALYSIS) Last week, the House of Representatives introduced the Equality Act, which would amend the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation and gender identity.

On Feb. 25, the House is on track to pass this bill. The Equality Act would explicitly add to the definition of “sex” both “sexual orientation” and “gender identity.” It would also add “sex” to where it is not already present in the Civil Rights Act.

Does the Equality Act Balance LGBTQ rights and religious freedom?

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The goal of the Equality Act is to make discrimination based on sexual orientation and gender identity (SOGI) illegal across a broad spectrum— housing, public schools, government-funded services, public accommodations, jury service, consumer credit and employment.

Only 21 states already have legislation that protects LGBTQ individuals from discrimination. House Majority Leader Steny Hoyer, (D-MD), stated Wednesday that the Equality Act "makes sure the LGBTQ community is protected in all of its rights, not just some. ... We think that's the right thing to do."

Sen. Susan Collins (R-ME) recently confirmed that, although she was the lone Republican to cosponsor the Equality Act when it was introduced in 2019, she declined to sponsor it this time. Collins stated: “There were certain provisions of the Equality Act which needed revision... Unfortunately the commitments that were made to me were not [given] last year.”

It is important that LGBTQ people be broadly protected from discrimination, yet, the Supreme Court decision Bostock v. Clayton County, issued in June 2020, already goes a long way toward ensuring LGBTQ individuals are covered in federal law. The decision, written by conservative Justice Neil Gorsuch, held that federal civil rights law prohibits discriminatory employment practices against someone on the basis of their sexual orientation or gender identity. The 6-3 decision holds that sex, a federally protected class, includes sexual orientation and gender identity. 

The Bostock ruling, however, noted that religious employers have protections for religion-based decisions that secular employers do not have. Gorsuch, joined by Roberts and the Courts’ liberals, writes in Bostock:

“Employers fear that complying with Title VII’s requirement in cases like ours may require some employers  to  violate  their  religious convictions. We  are  also  deeply  concerned  with  preserving  the  promise  of  the  free exercise  of  religion  enshrined  in  our  Constitution;  that guarantee  lies  at  the  heart  of  our  pluralistic  society.”

This statement provides a hopeful vision of the Supreme Court’s commitment to upholding the rights of both LGBTQ communities and religious communities in our diverse society. Bostock reaffirmed a both/and, principled pluralist framework for advancing LGBTQ civil rights and First Amendment guarantees. The Court’s statement connects the free exercise of religion to the freedom of faith-based organizations to engage in spiritually-based, mission-centric staffing practices. 

The EA’s Limitations on Theologically Orthodox Religious Actors

Advocates of the Equality Act believe that their legislation protects religious freedom, yet many religious individuals and institutions, particularly those with orthodox theological beliefs about sexual ethics and family structures, disagree. Religious organizations, including Orthodox Jewish communities, the Church of Jesus Christ of Latter Day Saints, the U.S. Conference of Catholic Bishops, the Seventh Day Adventists and historic Black Church denominations like the African Methodist Episcopal Church, hold theological beliefs that could be put at risk and even made illegal when acted upon in organizational practices such as religious staffing in their social services, educational institutions and other parachurch ministries.

Religious freedom scholar and University of Virginia law professor Douglas Laycock is a longtime advocate of legalizing same-sex marriage and federally protecting LGBTQ people. However, Laycock told the National Review:

“[The Equality Act] goes very far to stamp out religious exemptions... It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA… This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”

A Both/And Approach - Fairness for All

Organizations with theologically orthodox sexual ethics do not generally believe the Equality Act advances a both/and, pluralistic approach to balancing LGBTQ and religious rights. Dr. Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance, writes:

“Yet for pluralism to be the outcome, there needs to be more clarity than was provided in [the Bostock] decision.  A fitting and lasting solution in our pluralistic America has to protect both faith-based employers and LGBTQ employees. The Bostock decision, with its words affirming the religious staffing rights of faith-based employers, is very good—but...Congress needs to take up H.R. 5331, the Fairness for All Act, which will give faith-based employers now the clarity [they need].”

The Fairness for All law is a balanced, principled approach to protecting the real and felt needs of both LGBTQ communities and religious communities. This bill was introduced in 2019 and will likely be reintroduced soon in this Congress. As Jonathan Rauch of the Brookings Institution states:

“This is not a decision only about gay people or religious people. It's a decision about how much play we will allow in the democratic joints of our society, and whether we can live out America's core principles in ways that honor and celebrate America's characteristic pragmatism and diversity.”

LGBTQ people continue to face disproportionate discrimination in employment, housing and other central areas of human activity. Tyler Deaton of the American Unity Fund states: “Roughly 40 percent of gay people will experience employment discrimination, and that number jumps to a staggering 90 percent within the transgender community.”

And, at the same time, religious individuals and institutions with conservative theological beliefs face uncertainty with respect to their capacity to live out their faith in everything they do, and especially in their staffing practices. As Tim Schultz of 1st Amendment Partnership states: “The current federal policy vacuum means many Americans do not feel free to exercise their First Amendment right to live according to their faith and to serve their community guided by their sincere beliefs.”

Fairness for All provides broad, although not perfect, protections for diverse Americans, and the organizations they form, to live out their sacred animating beliefs about what it means to be human. Fairness for All shows that choosing between protecting LGBTQ rights or Constitutional freedoms is a false binary.

As the Alliance for Lasting Liberty states: “Fairness for All won’t cause us to agree on basic beliefs, nor should it try to. But it can, and should, show how we can live together as good neighbors while we maintain our different beliefs.”

Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.