The Equality Act Will Harm Religious Freedom
Supporters of the Equality Act claim it will increase equality in America, but it will actually harm one of the most fundamental rights we all share as Americans – religious freedom. It purports to ban discrimination, but it actually bans disagreement.
If passed, the law will damage not only the priceless American achievement of religious freedom for all, but also its indispensable progeny: pluralism, limited government, and unity.
The Act, which was introduced in Congress earlier this year and is scheduled for a vote on the House floor Friday, would add sexual orientation and gender identity (SOGI) to classes protected under the Civil Rights Act, such as race and sex. Proponents assert a faulty analogy between SOGI and race. Race is an immutable characteristic unconnected to distinctive behaviors or expressions. By contrast, behaviors and expressions are part of SOGI identities.
Can the rejection of SOGI behaviors and expressions be tolerated in America? In its decision legalizing same-sex marriage, the Supreme Court said yes. “Many who deem same-sex marriage to be wrong reach that conclusion on decent and honorable religious and philosophical principles,” Justice Anthony Kennedy wrote in his majority opinion.
The Equality Act assumes that those who have reached that conclusion are indecent and dishonorable.
While the Civil Rights Act was necessary to overcome institutionalized racism, the Equality Act would suppress particular beliefs on sexual expression and behavior, especially religious convictions on sexuality, marriage, human nature, and human dignity. The law would devastate institutions built on those convictions, such as schools, charities, small businesses, hospitals, and houses of worship.
The Act will expose persons or groups holding these beliefs to lawsuits and financial ruin. The law will mark them – like racists – as “hateful” and “bigoted.” The largest financial backer of SOGI laws, Tim Gill, has labeled opponents as “wicked” people who must be “punished.” Gill’s attitude mirrors the Act’s purpose – elimination of dissent from the state-sanctioned view of sexuality and human nature.
A sampling of likely harms foreshadows an America of increasing government coercion, some of which is already happening. Schools with traditional policies on sex and marriage will lose their tax exemptions and be forced to change or close. Adoption agencies seeking to place children with married mothers and fathers will be forced to shut down. Females will have to compete in sports and share locker rooms with biological males. Small businesses that cannot in good conscience participate in same-sex weddings will be driven out of business.
Quite apart from legal penalties, the “wickedness” premise of the Act sets up an inexorable logic. Consider how racist attitudes and speech are treated in America. If those who hold traditional beliefs on sexuality are the same as racists, why should they be tolerated? If there is a constitutional right to same-sex marriage, why should bigoted churches not be compelled to perform them? Why should a Muslim or evangelical or Jewish college be permitted to require chastity of its students and faculty?
The Act recognizes no protection for such views. It eliminates any right of dissenters to challenge a lawsuit based on the free exercise protections of the First Amendment as reaffirmed in the 1993 Religious Freedom Restoration Act.
Gay, lesbian, and transgender people have suffered grievous discrimination in the past. Today, however, most religiously conservative Americans have adopted a live and let live attitude. Drawing on the same understanding of the human person that undergirds their views of sexuality, marriage, and human nature, they believe that abuse of LGBTQ persons is deeply sinful.
American politics is based on the revolutionary principle that representative democracy is the best system, but that even democratic governments – controlled by humans who are by their nature beguiled by power – pose a danger to freedom and equality. Given our modern tendency toward fierce disagreements over the right and the good, our system of checks and balances serves us well, especially the First Amendment freedoms of speech, assembly, and religion.
James Madison suggested religious freedom was America’s first freedom in his Memorial and Remonstrance, not because religious people are superior to others, but because the right to free exercise of religion is necessary for human and political flourishing. None of us can be truly free without the right to seek religious truth and to order our lives accordingly. Our founders understood that religious communities contributed mightily to the common good, and limited the power of government by positing an authority greater than government. These communities provide services for the vulnerable and needy that the state would otherwise have to provide. America’s faith-based civil society is without peer in history.
The Equality Act will harm American democracy by privileging one view of sexuality and human nature, and silencing another. But our lives together as one nation – “out of many, one” – cannot long survive if one group of Americans employs the force of law to silence others, and to declare their deepest convictions “no longer welcome here.” The Act should be rejected.
Dr. Thomas F. Farr is the president of the Religious Freedom Institute.