The Equality Act and the Claims of Justice

The Equality Act promises justice. For some religious communities, it threatens the opposite.

The Equality Act passed the House of Representatives this past February by an overwhelming majority. It is expected to make its way to the Senate sometime this September. 

This act is the latest in a series of efforts, including the Obergefell (2015) and Bostock (2020) Supreme Court decisions, to ensure that LGBTQ+ citizens of our country will be treated with appropriate dignity and respect. No one would argue against the desirability of that outcome. While some might suggest that this additional protection is unnecessary, much as some argued against the Equal Rights Amendment back in the 1970’s, there is no quarrel with the legitimacy of all Americans being assured the dignity and respect due to them as persons. It goes without saying that this country’s LGBTQ+ persons deserve all rights guaranteed by our Constitution. 

For Christians there is reason, even apart from the Constitution, to seek to ensure that all persons be treated with dignity and respect. They are made in the image of our Creator. The fact that members of the LGBTQ+ community have not always felt that dignity, respect, and care for their personhood within the Christian community—and indeed have experienced the church as a place of pain and judgment—is reason for deep regret and repentance. Further, it seems that as the broader culture has moved toward assuming a natural link between sexual orientation, identity, and behavior, American churches have treated sexual orientation with even more suspicion than before. The Equality Act would provide, at least at the legal level, the reassurance of treatment appropriate to all members of our society. 

So why the concern within the conservative sector of our society, and even more among members of conservative religious communities?

For the first time in this country an act of Congress would explicitly remove the protections guaranteed to religious communities granted under the Religious Freedom Restoration Act (RFRA) of 1993. RFRA sought to determine the means for adjudicating between, on the one hand, the claims of religious communities to their first amendment rights to religious freedom under the “free exercise” clause, and, on the other, legislation or policies that would seem to threaten that freedom. According to RFRA, to override a claim of religious freedom the government must demonstrate that there is a “compelling interest” on the part of the government in doing so, and that the law or rule in question is the “least restrictive means” of furthering the relevant “compelling interest.” The Equality Act permits no such exemptions on the grounds of religious freedom. 

In short, the Equality Act goes far beyond guaranteeing the rights of one particular group in our society. It is willing to secure these rights while putting in jeopardy the claims of another group to their constitutional rights. 

In doing so the Equality Act fails to do justice to the pluralism that was implicit in the founding documents of our country that separated “church and state.” It also fails to recognize the rich complexity of moral traditions that constitute the actual multi-faith, pluralistic world of twenty-first century America. 

The Equality Act puts the government in a position of taking sides on fundamentally different and longstanding understandings of the nature of sexual morality, which often grow out of major world religions and are always associated with larger ethical frameworks. Furthermore, it puts the government in the position of adjudicating deep divisions within many religious communities that are themselves sorting through tensions on these matters from within their own traditions. This seems to arrogate to the government an authority on religious matters far beyond that provided for in the Constitution. In the process it jeopardizes one of the country’s most prized possessions: its commitment to creating the conditions in which citizens can live together despite deep differences, and live together in ways that truly make room for those differences. 

More particularly, the Equality Act puts at risk the current operation of many organizations in our society that are not churches but that operate from an animating vision shaped by religious convictions sharply at odds with certain implications of the Equality Act. These include institutions that currently provide education, health care, adoptions, and humanitarian aid for our society—and not just for those of their own religious communities. 

The Equality Act would be devastating, to take one example, for the more than 140 U.S. institutions that form part of the Council for Christian Colleges & Universities (CCCU). Most basically, it would put at risk their ability to hire and operate in accordance with their religious beliefs and practices while also remaining participants within the larger institutional framework of American higher education. 

As a result of the Equality Act, nearly 500,000 students in this country who currently choose CCCU institutions would not be able to make use of their federal funding at these institutions. Since seven out of ten CCCU students currently receive federal funding, this would have a severe impact on both student choice and the financial viability of these institutions. It would limit the choice of where these students would be free to expend approximately $500 million in Pell funding each year. 

Moreover, the Equality Act would disproportionately have an impact on students from racial and ethnic minority groups, who currently receive Pell grants at a much higher rate than white students.

The Equality Act would, in short, severely threaten the diversity of American higher education by placing the 140+ CCCU institutions outside the framework of mainstream higher education—both in their access to federal funding through student choice and in their freedom to be judged in peer accreditation by the particularity of their mission (as in current practice) rather than by one national standard.

Putting at risk the sustainability of CCCU institutions would do damage not only to a particular institutional strand of conservative American Christianity. It would also affect the many students who study at these colleges and universities who hail from beyond the various Christian subcommunities. And just as these institutions provide education for such students, they also enrich the economy, the culture, and the social services in the local communities of which they are a part. 

It’s worth noting, in the end, that the Equality Act’s negative effects would go beyond damage to particular institutions, students, and communities. By jeopardizing the existence of CCCU institutions, its passage could contribute even further to the polarization of our culture. The CCCU colleges and universities are among the most important mediating institutions in the tapestry of American pluralism. As institutions that often grow out of particular sub-cultures of the American religious tradition yet function within the larger mainstream of higher education, the CCCU institutions serve as agents of bridge-building, of cultural “translation,” and of convening in ways that counter the prevailing trends toward polarization. They are committed to preparing graduates to lead effectively in a wide range of contexts within the nation and beyond.

For those concerned about LGBTQ+ rights but dissatisfied with the Equality Act, there does exist another legislative option: the Fairness for All Act. It also is making its way through the Congressional process. It proposes a way for LGBTQ+ rights to be secured while also providing appropriate protections for religious organizations. And it outlines a way that provides a win-win situation for our society rather than the kind of binary solutions that inevitably emerge from the judicial process.

In sum: The Equality Act, though well intentioned, provides a much less comprehensive and much more costly solution than other available options for the good of both individual citizens and the good of our entire society. Let us do justice in this moment not only to one group but to the American people as a whole. 

Shirley A. Mullen (PhD) is President and Professor of History at Houghton College