The Equality Act would amend the 1964 Civil Rights Act to explicitly prevent discrimination based on sexual orientation and gender identity.
The bill has been introduced multiple times before and previously passed the House in 2019. However, the law’s impact would be different in practical terms now than it was then.
That’s because the Supreme Court ruled in June of last year, in Bostock v. Clayton County, that the protections guaranteed by the 1964 Civil Rights Act on the basis of sex also extend to discrimination against lesbian, gay, and transgender Americans. The logic was that a man who, for example, loses his job because he has a same-sex partner is facing discrimination on the basis of sex — that, were he a woman, he wouldn’t have faced that discrimination.
This act would explicitly enshrine those nondiscrimination protections into law for sexual orientation and gender identity, rather than those protections being looped in under the umbrella of “sex.” However, the Equality Act would also substantially expand those protections.
The Civil Rights Act covered discrimination in certain areas, like employment and housing. The Equality Act would expand that to cover federally funded programs, as well as “public accommodations” — a broad category including retail stores and stadiums, for example.
(“Public accommodations” is also a category that the bill broadens, to include online retailers and transportation providers, for example. Because of that, many types of discrimination the Civil Rights Act currently prohibits — like racial or religious discrimination — would now also be explicitly covered at those types of establishments.)
One upshot of all of this, then, is that the Equality Act would affect businesses like flower shops and bakeries that have been at the center of discrimination court cases in recent years — for example, a baker who doesn’t want to provide a cake for a same-sex wedding.
Importantly, the bill also explicitly says that it trumps the Religious Freedom Restoration Act (commonly known by its acronym RFRA). The law, passed in 1993, set a higher bar for the government to defend laws if people argued those laws infringed upon religious freedom.
Under the Equality Act, an entity couldn’t use RFRA to challenge the act’s provisions, nor could it use RFRA as a defense to a claim made under the act.
While the Equality Act passed in the House with unanimous Democratic support and eight GOP votes, it will have a harder road in the Senate. The bill needs 60 votes to avoid a filibuster. That means ten Republicans will need to support it.
As NPR notes, the most controversial part of the Equality Act is its claim that civil rights for LGBTQ Americans always trump the religious liberty of Americans. On this front, I tend to come down on the side of the Council for Christian Colleges and Universities (CCCU). Here is the CCCU’s statement on the Supreme Court’s June 2020 Title VII decision:
Today, the Supreme Court issued a decision that extends federal protections to LGBT employees. At the CCCU, this is a decision that we have long recognized was possible, and is why we have been public supporters of legislation that would proactively balance the rights of religious communities and LGBT Americans. We believe it is essential that any protections for LGBT persons be paired with the essential religious freedoms that maximize freedom for all. Today’s ruling gives LGBT Americans more employment security, but it leaves important questions unanswered for religious employers. We call on Congress to address these uncertainties through legislation that makes explicit the religious protections important to a rich and vibrant civil society. We look forward to playing an important role in these vital conversations on behalf of our institutions and their First Amendment rights, and will continue to pursue strategies that protect the Christ-centered mission of our institutions and preserve and strengthen Christian higher education for the future.
I also affirm yesterday’s statement from the National Association of Evangelicals:
Today’s action by the House of Representatives to pass the Equality Act on a party line vote without hearings or committee markup represents a lost opportunity to develop sensible legislation that would unite our country and protect all Americans from unjust discrimination. The National Association of Evangelicals (NAE) has been a longtime advocate for the religious freedom for people of all faiths and none, and we seek continued protection for all people of goodwill to live in accordance with their genuinely and deeply held convictions.
While the Equality Act offers protections for LGBT individuals, its current form threatens to turn houses of worship and other religious spaces into “public accommodations” subject to intrusive government intervention, in violation of the First Amendment. Where these new rights conflict with the rights of religious people, the Equality Act offers no protection and explicitly removes the existing protection of the Religious Freedom Restoration Act.
“Instead of offering carefully crafted win/win solutions that respect the needs of all Americans, the Equality Act pits LGBT persons against those who believe that God created humans as male and female, and that sexual intimacy is a precious gift from God reserved for marriage between a woman and a man,” NAE President Walter Kim said. “This one-sided bill would guarantee decades of continued polarization rather than providing the basis for Americans to live together peacefully despite our profound differences.”
Religious charities and institutions that believe marriage is a covenant relationship between a man and a woman play indispensable roles in our social safety net — feeding the hungry, housing the homeless, healing the sick and educating disadvantaged children — as well as other valuable contributions to the well-being of all Americans. The version of the Equality Act passed by the House of Representatives would pressure institutions to change their religious beliefs or withdraw from the public-private partnerships that make our charitable sector so dynamic. If it becomes law, it would tee up decades of contentious litigation.
Rather than promoting full equality for all Americans, the House action today sets back the important work of overcoming the deep polarization in this country. The Senate must reject identity politics and craft legislation that serves the entire nation.
We will see how this plays out.