President Biden promised last year to work on passing The Equality Act during the first 100 days of his presidency. If you are not familiar with “The Equality Act,” you need to be. Until the Supreme Court’s Bostock decision, sexual orientation and gender identity were not protected classes in the 1964 Civil Rights Act. But through a tortured reading of the statute, the Court decided to read those protections into the statute. It is a terrible decision that ignores what the authors of the statute meant when they wrote it.
Some have argued that the passage of The Equality Act would be a moot point in light of Bostock. They claim that “The Equality Act” will only codify what is already the law of the land because of Bostock. For that reason, they argue, religious dissenters should just accept their defeat and move along.
This is mistaken. “The Equality Act” will make things even worse because it goes even further than Bostock. Whereas Bostock still left the Religious Freedom Restoration Act (RFRA) as a possible defense for religious dissenters, “The Equality Act” removes RFRA as a defense for religious dissenters. As John McCormack reported late last year:
Earlier this week, the magazine The Economist warned Democrats that the Equality Act, a bill establishing “sexual orientation” and “gender identity” as protected classes in federal law, is too extreme. The act “risks discriminating against female Americans,” according to The Economist, by forcing girls’ and women’s sports teams to compete with and against biologically male athletes who identify as female.
What the editorial didn’t mention is that the act is also a threat to religious liberty. “It goes very far to stamp out religious exemptions,” University of Virginia law professor Douglas Laycock told National Review last year. “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.”
Earlier this year, the U.S. Supreme Court ruled in its Bostock decision that Title VII of the 1964 Civil Rights Act’s prohibition on sex discrimination in employment also prohibits discrimination on the basis of sexual orientation and “transgender status.” Justice Neil Gorsuch, who wrote the majority opinion, noted that the Religious Freedom Restoration Act was one possible source of protection in federal law for religious dissenters. (The Equality Act would go a step further than Bostock by adding “sexual orientation” and “gender identity” to Title II of the 1964 Civil Rights Act, which bans discrimination at public accommodations. It would also expand the list of public accommodations covered by federal law.)
What does all of this have to do with religious liberty? It is not as if there is widespread discrimination against LGBT people in public accommodations. No restaurant or business is hanging a sign that says “straights and cisgender only.” So that cannot be the intent of the “Equality Act.” Rather, the intent of the bill is to target the last hold-outs to the LGBT revolution—religious people.
How do we know this? Because the bill takes explicit aim at religious people. It explicitly forbids Americans from using the Religious Freedom Restoration Act as a defense in court. The Religious Freedom Restoration Act—which used to enjoy bipartisan support—has now become the boogey man of the left. The left wants to destroy this federal law and force religious people to violate their sincerely held religious beliefs about marriage and sexuality.
If “The Equality Act” were to become law, Christian business owners in the wedding industry would be forced to participate in gay weddings. Christian colleges would be forced to house students according to their gender identity. The list of religious liberty violations would be virtually endless.
This bill signals that one side of the culture war wishes the total subjugation of the other. They will run roughshod over the religious consciences of their fellow citizens. As Ross Douthat observed some years ago:
Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters
Yet there is very little evidence of “magnanimity” on the part of those who support “The Equality Act.” On the contrary, there is evidence that many of them would like to see religious dissenters to gay marriage get their comeuppance. A scorched-earth policy may very well be in the offing with traditional marriage supporters getting the biggest burn.
About eight years ago, Robert George wrote something that has proven to be prophetic.
There is, in my opinion, no chance—no chance—of persuading champions of sexual liberation (and it should be clear by now that this is the cause they serve), that they should respect, or permit the law to respect, the conscience rights of those with whom they disagree. Look at it from their point of view: Why should we permit “full equality” to be trumped by bigotry? Why should we respect religions and religious institutions that are “incubators of homophobia”? Bigotry, religiously based or not, must be smashed and eradicated. The law should certainly not give it recognition or lend it any standing or dignity.
Can we really expect the sexual revolutionaries to be magnanimous toward those they regard as bigoted? The reintroduction of “The Equality Act” tells us that the answer is no.
There is a chance that the Biden administration will not be able to get “The Equality Act” passed in the first 100 days. In spite of the Democrats’ narrow Senate majority, there still may not be enough votes in support of the bill. Also, the Biden administration now has other items on the agenda for the first 100 days. As LGBTQ Nation reports:
Biden had previously said that he would sign the Equality Act into law in his first 100 days in office, but in a conference call with LGBTQ activists, his transition team said that that may be difficult in the face of the coronavirus vaccine rollout and the Senate’s impeachment trial for Donald Trump. Sources on the call tell LGBTQ Nation that Democrats don’t think they can advance the legislation in the Senate despite holding the majority.
Whether it happens in the first 100 days or after, make no mistake. The Biden administration is going to try and get this bill passed. I am not as dubious about its ability to pass in the Senate. If it makes it to the floor, I think it will likely pass with overwhelming Democratic support and probably some Republican support. We’ll see.
In the meantime, all of us who care about religious liberty need to understand what is at stake and be ready. Also, we need our elected representatives who care about religious liberty to hold the line for as long as possible. The longer like-minded lawmakers can delay “The Equality Act,” the better.