President-elect Joe Biden vowed to pass the Equality Act within his first 100 days, but Democrats will need to win the Georgia Senate races before that prospect is even a possibility.
The Equality Act, which has been locked in congressional debate since the mid-1970s, proposes including sexual orientation and gender identity as protected classes in civil rights law. The idea is popular: More than 20 states and the District of Columbia have passed state versions of the act. The Supreme Court this summer ruled favorably in a case relating to some of its tenets, Bostock v. Clayton County, in which the court reinterpreted Title VII of the 1964 Civil Rights Act to include gender identity and sexual orientation as protected “on the basis of sex.”
But the act has never been able to garner significant support nationally. Although the Democrat-dominated House passed Rhode Island Rep. David Cicilline’s 2019 version, Oregon Sen. Jeff Merkley’s version quickly died in the Senate, despite urging from Democrats to bring it to a vote. President Trump also opposed the bill, with the White House stating that, while Trump was in favor of rights for gay and transgender people, the legislation contained too many “poison pills” that would undermine the right to freedom of conscience.
And it’s these “poison pills” have social conservatives worried that the stakes in Georgia include their right to the freedom of expression. The Equality Act, religious freedom advocates warn, by protecting gay and transgender groups marginalizes people of faith whose beliefs clash with popular consensus on sexuality. The act contains language that overrides the 1993 Religious Freedom Restoration Act, which has been a top defense for people of faith in clashes with gay and transgender interest.
Senate Democrats have no chance of passing the bill unless they gain the majority in the body — and even then, it would take 60 votes to push the legislation through. But many top Democrats have signaled that they are willing to kill the Senate filibuster so that the Equality Act will only need to pass by a simple majority. Merkley, one of the top advocates against the filibuster, argued in August that Democrats have a “responsibility” to pave the way for his bill by ending the practice. Merkley’s proposal has received the support of Massachusetts Sen. Elizabeth Warren as well as former Senate Majority Leader Harry Reid.
That scenario is grim for opponents of the legislation, and they’re not ready to give Democrats a chance to see it through.
“And well, that’s it,” said March for Life Action President Tom McClusky, explaining that without RFRA, many socially conservative causes are defenseless. “The Equality Act alone, although it concerns primarily gay rights, would also drastically affect abortion.”
McClusky, along with several other anti-abortion groups, have invested money and on the ground efforts in the Georgia races, handing out scorecards advertising the importance of maintaining a Republican Senate majority. Another group, the American Principles Project, went all-in on Sen. Kelly Loeffler’s runoff bid, championing her introduction this year of the Protection of Women and Girls in Sports Act, which seeks to withhold federal funding from schools that allow transgender women to compete against biological women.
“Whether or not the Senate is in pro-family hands next year could very well depend on whether Sen. Loeffler prevails in her election this January,” said Terry Schilling, APP’s executive director, after Loeffler advanced to the runoff race.
Loeffler’s opponent, Rev. Raphael Warnock, on the other hand, has been a vocal supporter of the Equality Act, telling the gay news site Q Project that the country needs it “now more than ever.”
Democrats must win both Loeffler’s seat and David Perdue’s seat to gain a 50-50 split in the body with a deciding vote cast by Vice President-elect Kamala Harris. But even if the party fails to do that, the Biden administration has pledged to forge ahead and implement as much of the Equality Act as it can without Congress’s approval.
“We want to win those seats in Georgia. It will certainly be helpful to win those seats in Georgia, but we’re not going to let anything deter us from moving forward with our agenda,” Biden’s incoming chief of staff Ron Klain told NBC’s Chuck Todd last week.
In regard to gay and transgender interests, this will mean “immediate and full enforcement of the Equality Act across all federal departments and agencies.” In effect, this will undo many of the ordinances that the Trump administration set up through offices such as the Justice Department, the Department of Health and Human Services, and the Labor Department to ensure that religious people would receive protection if their beliefs clashed with gender nondiscrimination ordinances.
Biden’s all-but-certain implementation of the Equality Act’s essentials has left religious freedom advocates worried that the administration will not only revamp Obama-era fights, such as the dispute over a contraception mandate with the Little Sisters of the Poor but also expand them to new fights about sexuality.
“Biden’s aggressive support of the act, together with his extreme abortion position, opposition to school choice, and pledge to restart the war on the Little Sisters makes clear his Catholic faith will be readily sacrificed at the altar of political expediency,” said Brian Burch, president of CatholicVote, an organization that sought to discredit Biden’s claims to faith throughout his presidential campaign.
Still, some religious liberty experts see a glimmer of hope for their cause if a Democratic majority in Congress manages to push through the Equality Act. The legislative stripping of RFRA has the potential to set the Supreme Court up for a reinterpretation of the Free Exercise Clause of the First Amendment, whose abridgment in a 1990 court decision inspired Congress to adopt RFRA in the first place.
This decision, Employment Division v. Smith, is up for reconsideration in the case Fulton v. City of Philadelphia, which pits a Catholic foster care institution against Philadelphia nondiscrimination laws. The court is expected to rule in favor of the Catholic group but is also poised to comment once again on Smith. If it revises its decision, RFRA’s protections would become enshrined in a court decision.
“And if the court does that, it won’t matter what Congress does with RFRA,” said Kelly Shackelford, president of the First Liberty Institute, a free speech legal nonprofit organization.
