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Last Thursday, U.S Rep. David Cicilline, D-R.I., and U.S. Senator Jeff Merkley, D-Ore., re-introduced the so-called Equality Act that, if passed, would represent the greatest threat to religious liberty in American history. 

That is not hyperbole. The bill, if codified, sets up a clash between LGBT rights and faithful Americans’ religious conscience rights, and faithful Americans will lose.

Of course, proponents of the bill sidestep that issue.

“In 2021, every American should be treated with respect and dignity,” said Cicilline in a released statement. “Yet, in most states, LGBTQ people can be discriminated against because of who they are, or who they love. It is past time for that to change. I’m proud to introduce the Equality Act today, and I look forward to continuing to work with Senator Merkley to get this bill signed into law.”

“All of us go to work and school, go home, and go shopping, and none of us should have to keep our families hidden or pretend to be someone we’re not to do those things,” said Merkley said in a joint press release. “But in 29 states, Americans can still be evicted, be thrown out of a restaurant, or be denied a loan because of who they are or whom they love. We all love the vision of America as a land of freedom and equality, but are we willing to take the steps to make that vision closer to reality? Let’s make 2021 the year the Equality Act crosses the finish line and is signed into law by President Biden.”

President Joe Biden has said he supports the Equality Act’s passage and prioritized it in his first 100 days in office.

The bill is likely to pass in the U.S. House, though, likely with a slimmer margin than it did in the 116th Congress.

Speaker Nancy Pelosi, D-Calif., promises swift passage of the bill. 

“Our nation was founded on the promise that all are created equal and are worthy of dignity and respect, regardless of who they are or whom they love,” she said. “With the reintroduction of the Equality Act, Congressional Democrats are making a resounding commitment to this truth: that all Americans must be treated equally under the law, not just in the workplace, but in every place. The Democratic House will now swiftly pass this landmark legislation and will keep working until it is finally enacted into law – so that we can combat anti-LGBTQ discrimination that undermines our democracy and advance justice in America.”

The bill will need a supermajority in the U.S. Senate to pass. That is uncertain; unless some Republican senators equivocate if a deal is made to include an exemption for religious liberty—more on that in a bit.

What The Equality Act Does.

The Equality Act, first introduced in 2015, would amend virtually all current federal laws covering employment, housing, credit, education, public spaces and services, federally funded programs, and jury service to include sexual orientation and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation.

The Equality Act also expands the scope of what the Civil Rights Act of 1964 considers “public accommodation” to include almost any business that serves the public.

What Is It’s Threat to Religious Liberty?

Besides setting up the clash of rights. The Equality Act does not include any religious liberty exemptions, and those would only exist where they are currently present in federal law as they apply to churches and religious schools. 

More problematic is that the bill’s text in 2017 and 2019  in section 9 neuters the Religious Freedom Restoration Act (RFRA). I don’t see that changing with the bill’s current version, whose text is not online yet.

Specifically, previous versions read, “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

Just a reminder, RFRA provides a defense path. It does NOT allow discrimination. The Religious Freedom Restoration Act passed with overwhelming bipartisan support and was signed into law by former President Bill Clinton (D) did not allow discrimination. It provided a legal recourse for people of faith who are under compulsion by the federal government to act in a way that would violate their religious beliefs or personal conscience.

RFRA requires three questions to be answered when a challenge comes before a federal court:

  1. Is the government substantially burdening a person’s sincere belief through its action? If the answer is yes, then the case moves forward. If the answer is no, then the case will be dismissed.
  2. Does the government have a compelling reason (like health or safety) to interfere? If the answer is no, then the case is closed, and the individual wins. If the answer is yes, then the case moves forward. 
  3. Is there a reasonable alternative to serve the public interest? If the answer is yes, the individual will win. If the answer is no, then that person will lose.

When prior government action is at odds with a person’s free exercise of religion, the federal government has the burden to demonstrate that a compelling government interest and that the step they took is the least restrictive means of furthering that interest.

Under the Equality Act, RFRA can apply for defendants in discrimination suits and complaints in all circumstances except where LGBT people are the victims. Keep in mind, again, RFRA does not protect discriminatory behavior. It prevents the federal government from substantially burdening a person’s sincere belief if they do not have a 1. compelling action or 2. there are no reasonable alternatives to serve the public interest.

A person can use RFRA as a defense and still lose, except with the Equality Act, that won’t be an option. The sponsors of this bill believe that the federal government can substantially burden a person’s sincere belief for any reason, even if there is an alternative available.

Frankly, as written, this bill raises constitutional issues as it would cause an unequal application of federal law. 

Beware the Religious Liberty Compromise.

Considering the Senate will have difficulty passing the Equality Act as written, beware of a compromise that Senate Majority Leader Chuck Schumer, D-N.Y., could extend to sway some Republican senators to sign onto the bill. 

There is a lite version of the Equality Act that is called the Fairness for All Act. That title, like the Equality Act, is a misnomer because it is not fair for all. On the surface, it seems fine but is problematic.  

The Fairness For All Act (FFA) is modeled after legislation passed in Utah and supported by the LDS Church.

FFA preserves the Religious Freedom Restoration Act. 

FFA protects the tax-exempt status of religious organizations and religious colleges and universities. It also protects the right of religious colleges and universities to uphold their religious standards without jeopardizing the ability of their students to get Pell Grants or of their professors to compete for federal research contracts.

The legislation also protects the owners of small businesses whose religious and moral principles prevent them from participating in activities contrary to their conscience and beliefs. The bill also protects religious adoption and foster care agencies so they can continue to serve vulnerable children and willing couples while at the same time ensuring the ability of LGBT persons to adopt and foster children.

Robert P. George, the McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, in 2019, told Caffeinated Thoughts that the Fairness For All Act is a “legislative wolf in sheep’s clothing.”

“Gay writer Andrew Sullivan, who pioneered activism for ‘same-sex marriage,’ said recently that ‘the gay left wants to persecute orthodox Christians.’ I’m sure that was sweeping with too broad a brush. But there can be no doubt that there are efforts on the left (and not just the gay left) to penalize people and institutions such as churches and religiously affiliated schools and social services agencies for dissenting from LGBT ideology,” he said.

“The so-called Fairness for All bill would, unfortunately, assist these efforts. If ever there were a legislative wolf in sheep’s clothing, this is it. In fact, the sheep costume is so laughable, so transparently a mere costume, that it’s hard for me to fathom why some religious people and groups are supporting the bill. That they mean well, I do not doubt. That they are making a terrible mistake, I am absolutely certain. The bill is not a shield to protect people from unjust discrimination; it is a sword to punish people who hold traditional beliefs about marriage and sexuality,” George added.

Essentially, while legislation like the FFA may provide an exemption for religious people, it still sets up the conflict and even though exemptions may be offered as a form of compromise today. They could be repealed altogether in the future. 

This is assuming Senate Democrats would even go this far in a compromise. More likely, they could offer churches and religious colleges an exemption but bypass employers, employees, medical professionals, parents and children, and women – all groups who would suffer under the Equality Act – altogether.

Senate Republicans must resist this bill regardless of any carrots dangled in front of them.

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