This bill signals that one side of the culture war wishes the total subjugation of the other. They will run roughshod over the religious consciences of their fellow citizens.
President Biden promised last year to work on passing The Equality Act during the first 100 days of his presidency. If you are not familiar with “The Equality Act,” you need to be. Until the Supreme Court’s Bostock decision, sexual orientation and gender identity were not protected classes in the 1964 Civil Rights Act. But through a tortured reading of the statute, the Court decided to read those protections into the statute. It is a terrible decision that ignores what the authors of the statute meant when they wrote it.
Some have argued that the passage of The Equality Act would be a moot point in light of Bostock. They claim that “The Equality Act” will only codify what is already the law of the land because of Bostock. For that reason, they argue, religious dissenters should just accept their defeat and move along.
This is mistaken. “The Equality Act” will make things even worse because it goes even further than Bostock. Whereas Bostock still left the Religious Freedom Restoration Act (RFRA) as a possible defense for religious dissenters, “The Equality Act” removes RFRA as a defense for religious dissenters. As John McCormack reported late last year:
Earlier this week, the magazine The Economist warned Democrats that the Equality Act, a bill establishing “sexual orientation” and “gender identity” as protected classes in federal law, is too extreme. The act “risks discriminating against female Americans,” according to The Economist, by forcing girls’ and women’s sports teams to compete with and against biologically male athletes who identify as female.
What the editorial didn’t mention is that the act is also a threat to religious liberty. “It goes very far to stamp out religious exemptions,” University of Virginia law professor Douglas Laycock told National Review last year. “It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”
Earlier this year, the U.S. Supreme Court ruled in its Bostock decision that Title VII of the 1964 Civil Rights Act’s prohibition on sex discrimination in employment also prohibits discrimination on the basis of sexual orientation and “transgender status.” Justice Neil Gorsuch, who wrote the majority opinion, noted that the Religious Freedom Restoration Act was one possible source of protection in federal law for religious dissenters. (The Equality Act would go a step further than Bostock by adding “sexual orientation” and “gender identity” to Title II of the 1964 Civil Rights Act, which bans discrimination at public accommodations. It would also expand the list of public accommodations covered by federal law.)