As the House gears up to vote on the Equality Act (H.R. 5), many worry the right to practice religion freely could be under assault. The bill would amend the Civil Rights Act of 1965 to include sex, sexual orientation, and gender identity to the list of protected classes. Consider the Masterpiece Cakeshop story: Would baker Jack Phillips have the freedom under this law to refuse to endorse a lifestyle and definition of marriage contrary to his beliefs? What about religious schools? Would they be forced to hire homosexual and transgender teachers, as suggested by Dr. Tom Cathey of the Association of Christian Schools International? While the First Amendment guarantees religious liberty, the Equality Act certainly has the potential to infringe “the free exercise thereof.”
Findings and Purpose
The bill starts out by laying out a considerable list of findings. It begins simply enough: Discrimination can occur based on “sex, sexual orientation, gender identity, pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes.” This is true; any perceivable difference grants the opportunity to discriminate against others. And, of course, as these all depend upon sex or sexual identity, they would be forms of sex discrimination.
It then goes on to explain that LGBT people and women are commonly discriminated against while trying to secure access to public accommodations like restaurants, stores, government offices, health care facilities, etc. it lays out how both LGBT people and women face discrimination in employment, housing, financial aid, adoption, and various other services, both from the government and the private sector. As an example of virtue signaling in its purest form, the bill takes over 1400 words in 20 paragraphs to explain this – and even dedicates an entire paragraph to conversion therapy, a “discredited practice” that isn’t mentioned again anywhere in the text.
Eventually, we arrive at the purpose:
“It is the purpose of this Act to expand as well as clarify, confirm and create greater consistency in the protections and remedies against discrimination on the basis of all covered characteristics and to provide guidance and notice to individuals, organizations, corporations, and agencies regarding their obligations under the law.”
The Civil Rights Act of 1964 guarantees all people – regardless of race, color, religion, or national origin – the right to enjoy “goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation” that affects commerce or is supported by state action. It defines the establishments covered by the law, operations affecting commerce, and support by state action, and it excludes private establishments that aren’t open to the general public. Simply put, if an establishment offers a good, service, or program in exchange for money, it’s covered.
This bill would add “sex (including sexual orientation and gender identity)” to the list of prohibited reasons for discrimination that appears throughout current federal law. One subsection changes the established definition of the covered businesses, however, to include even self-employed individuals not operating from a specific location open to the public:
“SEC. 208. RULE OF CONSTRUCTION.
A reference in this title to an establishment –
- Shall be construed to include an individual whose operations affect commerce and who is a provider of a good, service, or program; and
- Shall not be construed to be limited to a physical facility or place.”
Not only would Walmart and Burger King – and the Masterpiece Cakeshop – be forced to abide by this change, the handy man and freelance writer would lose the right to refuse as well.
Desegregation of Public Facilities and Education
The attorney general is empowered by the Civil Rights Act to pursue civil action to desegregate any public facility owned, operated, or managed by the state if the complaint seems legitimate and the discriminated individuals can’t afford to do so themselves. This bill expands the prohibited discrimination factors.
Unlawful Employment Practices
Section 7 amends the prohibitions already included in federal law so that employers cannot discriminate based on sex, sexual orientation, or gender identity.
The definition of an employer under current federal law requires a minimum of 25 employees working at least 20 weeks in the current or preceding calendar year. Any entity small enough to have fewer than 25 employees, then, would not be considered an employer. Indeed, it’s not uncommon in many a small church for the pastor to draw pay while most – or even all – other leadership and service duties are performed by volunteers.
That doesn’t offer much comfort, however, to larger churches and religious schools. The law currently allows employees to be admitted on the basis of religion, sex, or national origin so long as that factor is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” There’s even a specific example given for the case of religious institutions, allowing for religion to be a bona fide qualification for a job.
But the Equality Act modifies even this by changing the exemptions to add “if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity” after the word “enterprise.” Large churches and religious schools could still require both religious and sex requirements, but no potential employee who professes the correct faith and identifies as the proper gender could be disqualified for not meeting the actual biological sex prerequisite.
Section 9, titled “Miscellaneous,” defines several terms and establishes a few rules for the Act, including the following bombshell:
“The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”
The Equality Act would indeed prohibit religious business owners – even the self-employed not tied to a specific location – from choosing not to participate in something they don’t believe in. The next time a same-sex couple or transgender person approaches Jack Phillip for a cake, he may be left with only three options – and not a good choice among them. He can either violate his beliefs and make the cake, refuse and risk prosecution, or close up shop altogether. That Christian school might soon have to take on both students and teachers whose sexual orientations and identities defy the very scripture they study and teach.
But the Equality Act seems designed to go even farther than that. Dr. Cathey explained during a phone call his concerns that this would establish a new protected class of citizen, forcing Christian school health plans to cover sex reassignment surgery and requiring employers to allow the mixed use of restrooms.
Liberty Nation’s Legal Affairs Editor, Scott D. Cosenza, was asked if this bill would indeed establish a new protected class, and if so, just how far the restriction against discrimination might extend beyond what’s covered explicitly in the bill.
“The legislation seems designed to do precisely that: add sexual orientation and gender identity as protected classes in many areas, including employment, education, and businesses open to the public or ‘public accommodations.’ It’s hard to say how far reaching this would be, were it passed into law, due to just how broad it is. Will single-sex bathrooms and locker rooms still be legal? What about binary sex sports teams, such as men’s and women’s tennis? This is to say nothing of the potential of requiring the hiring of homosexuals by groups that believe such behavior is against their moral and religious code. It’s Pandora’s Box.”
With 240 co-sponsors – already a majority of the sitting representatives – the Equality Act seems destined to pass the House. The Senate, however, is a different story.
Editor’s note: Hat tip to Jeannine James, who brought to our attention Dr. Cathey’s email campaign.
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