The United States House of Representatives is expected to vote this week on the Equality Act, a bill that would “prohibit discrimination on the basis of sex, gender identity, and sexual orientation.” And if you knew nothing about the bill apart from that short summary, you already know it is bound to be controversial.
The first “Equality Act” was introduced 45 years ago in 1974 by two Democratic representatives from New York. It sought to amend the Civil Rights Act of 1964 — the law which banned discrimination based on race, religion, or national origin — to also prohibit discrimination based on sex, gender identity, or sexual orientation.
The Equality Act of 2019 seeks to do the same. It would correct the inconsistencies members of the LGBTQ community face in many states, where federal law permits them to marry but it’s impossible to find a private venue that would allow them to celebrate that wedding. Or upon finding out about the marriage, an employer fires his employee based solely on who they love. Or when looking for a home to start their family, this new couple is unable to find anything to rent because landlords disagree with the “lifestyle” they chose to live.
In short, the Equality Act would ensure that all those who were “born that way,” whether lesbian, gay, bi, transgender, or straight, can freely live their lives without fear of discrimination in housing, employment, or public business.
What’s so controversial about that?
As we’ve seen with the fight for marriage equality and the current fights over wedding cakes, there is plenty that is controversial. And this seems to be yet another battle in the struggle between LGBTQ equality and the free exercise of religion.
There will finally be at least one Utah vote in the House in support of the bill — that of Rep. Ben McAdams who said the Equality Act is “another step in the direction we need to take.” But the measure was panned by the rest of Utah’s delegation, who agreed with the official statement from the LDS Church that the Equality Act does not compromise enough in the name of religious freedom, violating the vaguely defined concept of “fairness for all,” a phrase that began to be tossed around after the 2015 Utah law that prohibited employment and housing discrimination based on sexual orientation and gender identity.
What exactly does “fairness for all” mean? How do you compromise between a right to discriminate and freedom from discrimination? If the Equality Act allegedly allow LGBTQ anti-discrimination to trump the exercise of religion, wouldn’t a swing in the opposite direction only allow religion to trump LGBTQ protections?
As a gay man raised in the LDS faith, I’ve seen both sides of the issue. I believe that religious freedoms should be protected, not only because it’s a foundational clause in our Constitution. Do I wish that Brigham Young University, a private university directly owned and operated by the LDS Church, wouldn’t discriminate based on sexual orientation? Yes. But I also support the LDS Church’s right to do so based on its religious teachings and practices.
Should that claim to religious freedom extend to permit discrimination in all situations where the sexual orientation or gender identity of an individual conflicts with another individual’s religious beliefs? Should a business that has opened its doors to the public be able to turn a gay couple away based on the religious beliefs of its owners?
Should a business that has opened its doors to the public be able to turn away an African American family solely based on the color of their skin? What if it was solely because the family is of the Jewish faith?
Would your answer change if the question were put this way?
The controversy over the Equality Act comes down to whether or not one believes that individuals should be able to use religion to justify discrimination and therefore be exempt from generally applicable laws. It was none other than the late Justice Antonin Scalia who held that the U.S. Constitution’s protection of the free exercise of religion does not trump “neutral laws of general applicability.” Citing an earlier Supreme Court case, he said that to provide religious exemptions to such generally applicable laws “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” It was only after conservatives disagreed with their revered justice, that the Religious Freedom Restoration Act was passed, once again weaponizing religious beliefs and expression against anti-discrimination statutes and other areas of the law.
I know where I stand on the Equality Act. I stand on the side of freedom — the freedom for members of LGBTQ community to pursue opportunity and prosperity without fear of discrimination. I also stand on the side of freedom for religion, knowing that the Equality Act has been crafted to preserve long-standing exemptions for religious institutions, without creating new exemptions that would trump the rights and freedoms of others.
The Equality Act is an example of “fairness for all.” And it’s about time that that the Equality Act is passed by Congress.