Religious liberty, the First Amendment, gay rights, and transgender equality can all coexist. Just not in the so-called “Equality Act” Democrats are pushing through Congress.
House Democrats voted the Equality Act through Thursday in a narrow vote almost exclusively along party lines. The legislation adds “sexual orientation” and “gender identity” to federal anti-discrimination law that applies to public accommodations, employment, housing, education, and more.
It also redefines “public accommodation” under anti-discrimination law, which traditionally has applied to public-facing businesses such as restaurants, gas stations, large apartment complexes, and so on. The Equality Act would apply sweeping anti-discrimination law for “public accommodations” to individuals who provide services, private religious schools, a religious family renting out a room at home, and, potentially, houses of worship.
The Equality Act also explicitly dismantles existing federal laws meant to uphold the rights of religious individuals and allow them to challenge unfair enforcement of anti-discrimination law.
Here are some of the countless scenarios that would potentially become unlawful under the Equality Act:
- A private Catholic school declining to employ, in roles that involve teaching religion, gay people (like me) who openly reject the Catholic Church’s teachings on marriage
- A female independent worker who provides waxing services to women only declining service to a transgender person who retains male genitalia
- A church that rents out its spaces for public functions such as elections declining to host a gay pride festival
- A Christian band declining to attend and perform at a gay wedding
- Segregating school sports by biological sex
Regardless of whether you personally like the above behaviors, a society that does not preserve the legal right to live out one’s faith in religious venues does not respect religious freedom. It forces secular values (which, for the record, I largely hold) on religious people through the threat of legal punishment.
As a result, the Equality Act goes too far. A pluralist society must preserve both the rights of LGBT people as well as the individual liberty of religious people.
This debate is too often framed as a binary choice: Support the Equality Act, or you’re a bigot who hates transgender people and opposes gay rights. Reject all LGBT rights laws, or you’re a leftist who doesn’t care about religious liberty.
I reject this false dichotomy, and you should too.
Most people, including a majority of Republicans, according to recent polling, agree that gay and transgender people should have basic anti-discrimination protections in secular life. McDonald’s shouldn’t be able to fire a cashier for getting married to a man, nor should a professional apartment complex be able to put a “No transgender people allowed” sign in its window. But we can protect LGBT people from this kind of treatment in secular, everyday life without infringing the liberty and integrity of religious institutions and private faith.
The “Fairness for All Act,” introduced in 2019 by Republican Rep. Chris Stewart of Utah, would do exactly that.
“Look, there wasn’t the public acceptance of this at all when I was growing up,” Stewart told me in a Washington Examiner interview shortly after he first introduced the bill. “If you were gay, your life was very difficult. For every gay person I knew, life was much harder for them. There has been a lot of change over time, and that’s a good thing. You just shouldn’t have to fear … ‘Is my job in danger, am I going to be able to get housing, can I serve on a jury?’”
But as a member of the Church of Latter-Day Saints, the congressman holds conservative religious values on matters of sexuality and gender — and says it’s important to protect the rights of those with religious values, too.
“It’s really kind of the heart of this,” he said. “These are the things I believe, but I have to understand that not everyone does. I think there’s a bit of ‘live and live’ about it … what I believe I hope you’ll respect, but I shouldn’t compel you to accept what I believe. And I don’t think you should go the other way around either.”
The bill, reintroduced on Friday, has no future in our current Congress, but it provides a framework for what legislation pursuing “equality” should really look like. Stewart’s bill updates the Civil Rights Act of 1964 and other federal laws to explicitly prohibit discrimination based on gender identity or sexual orientation in employment, housing, public accommodations, credit, federally funded services, refugee resettlement, and jury service. However, the bill provides a clear-cut exemption from new employment rules for churches, religious schools, and religious nonprofit organizations.
Unlike the Equality Act, the Fairness for All Act’s definition of “public accommodation” is narrowly tailored. It wouldn’t apply to churches, religious schools, religious funeral homes, faith-based cemeteries, or similar examples. Plus, Stewart’s legislation only applies anti-discrimination law to businesses and organizations with 15 or more employees, meaning it doesn’t invade the rights of individual contractors or people’s private homes.
In short, conservatives are not bigoted or hateful for opposing the Equality Act. The legislation is far more sweeping, punishing, and nefarious than its benign name implies. Of course, Democrats will decry Republicans as homophobes and bigots no matter what. But conservatives don’t have to embrace the Left’s nihilistic all-or-nothing approach to this issue.
Republicans can stand up for religious freedom and gay and transgender rights at the same time. The Fairness for All Act shows how.
Brad Polumbo (@Brad_Polumbo) is a Washington Examiner contributor and host of the Breaking Boundaries podcast.
