SALT LAKE CITY — Does expanding LGBTQ rights require limiting religious freedom?
“The Equality Act now before Congress is not balanced and does not meet the standard of fairness for all,” they wrote. “The Church calls upon members of Congress to pass legislation that vigorously protects religious freedom while also protecting basic civil rights for LGBT persons.”
The Equality Act, which could pass the House of Representatives as soon as this week, would outlaw sexual orientation and gender identity-based discrimination in housing, hiring and other areas of public life. It would also limit the legal defenses available to those who, for religious reasons, violate these protections.
The act's supporters say both are necessary to ensure equal treatment of LGBTQ Americans.
"What is problematic is when discrimination and harm to third parties is justified by asserting a religious belief," said Laura Durso, vice president of the LGBT and communications project at the Center for American Progress.
However, religious freedom advocates, including church leaders, say it's wrong to guarantee that LGBTQ rights almost always trump protections for sincerely held religious beliefs.
Laws should leave room for different outcomes depending on context, said Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance.
"We should let (Congress) actually balance these things out," he said.
It's possible to protect LGBTQ rights and religious freedom at the same time, as Latter-day Saint leaders propose, but not enough activists and policymakers are interested in that approach, said Douglas Laycock, a professor of law and religious studies at the University of Virginia. Compromise is treated like a dirty word in today's debates on discrimination.
"In principle, we could agree on a negotiated solution in which core religious practices get protected and more marginal ones get regulated. The obstacle to that is the hardliners on each end," Laycock said.
Expansion without exemptions
The Equality Act is guided by two overarching goals, according to Durso, whose organization was one of the bill's many coauthors. It aims to robustly protect the LGBTQ community and do no harm to existing nondiscrimination laws.
"We have such an incredible framework to protect people," she said. "We wanted to build on that and fill some holes."
Those holes include the Civil Rights Act of 1964's definition of "public accommodation," said Sarah Warbelow, legal director for the Human Rights Campaign, on an April 30 press call. Currently, the law doesn't apply to a variety of stores and venues.
"Many people don't realize that when it comes to public places and spaces, the Civil Rights Act of 1964 narrowly applies to things … like restaurants, amusement parks and places of lodging," she said.
The Equality Act would broaden its application to include any establishment providing a "good, service or program." It would ensure businesses like bakeries or funeral parlors — which were the focus of recent lawsuits involving clashes between LGBTQ rights and religious freedom — are free from discrimination, Durso said.
"We want to expand the definition of retail settings to better capture what discrimination looks like in 2019," she said.
And they want to do so without creating new exemptions for religious organizations or individuals, she said.
"The Equality Act maintains long-standing religious exemptions," Durso said.
This approach is a recipe for legal conflict, according to Carlson-Thies and others. Efforts to expand nondiscrimination protections for gay and transgender Americans should acknowledge deep and long-held religious beliefs about marriage and gender.
"Human sexuality is part and parcel of the theologies of many religions (in a way that, say, race is not,)" wrote Jonathan Rauch, a senior fellow in governance studies at the Brookings Institution, for National Affairs in 2017.
If the Equality Act passed in its current form, faith-based adoption agencies, religiously affiliated hospitals and schools and people of faith who own businesses and schools would all be vulnerable to discrimination-related lawsuits, Carlson-Thies explained in a recent newsletter.
"Religious organizations and persons (who object to same-sex marriage) will be compelled, in many circumstances, to act according to an understanding of marriage — and gender identity and human sexuality in general — that they reject," he wrote.
Leaders from the U.S. Conference of Catholic Bishops, National Association of Evangelicals and Council of Christian Colleges and Universities shared similar concerns in an open letter to Congress.
“If passed as currently drafted, the Equality Act would devastate the core ministries of a wide range of religious groups, especially those ministries that serve the most vulnerable,” they said.
That’s not the outcome lawmakers should seek, according to The Church of Jesus Christ of Latter-day Saints’ statement.
“It is time for wise policymakers to end this destructive conflict and protect the rights of all Americans,” it argued.
Religious freedom law
In addition to putting faith-based organizations and businesses at risk for more lawsuits, the Equality Act would limit how they could defend themselves.
The bill states that the Religious Freedom Restoration Act, a federal law preventing the government from substantially burdening someone's religious exercise without proper cause, can't be cited in discrimination-related cases.
"What the Equality Act does is make clear that the Religious Freedom Restoration Act can't be used to defend discrimination in public settings" or federally funded programs,
Durso said, noting that people of faith could still use the First Amendment's religious freedom protections as a defense.
That clarity would seriously undermine current religious freedom protections, Carlson-Thies said.
"The purpose of the Religious Freedom Restoration Act is to weigh different rights," he said. "To have legislators jump in and say we need to decide this in a way that gives no credence to a religious freedom claim … predetermines what has to happen."
The act was passed because lawmakers felt the First Amendment wasn't strong enough, Laycock said.
"The whole point of the Religious Freedom Restoration Act was that the Supreme Court had narrowed the free exercise clause," he said.
Durso and other Equality Act supporters say their goal isn't to attack people of faith. It's to protect gay and transgender Americans.
"We're not against the Religious Freedom Restoration Act. We're against it being used in a broad way to harm certain communities," Durso said.
The 1993 law, passed long before same-sex marriage was legalized, was never meant to apply to today's discrimination debates, Warbelow said.
"When the law was passed, it was intended to protect people's religious freedom and practices, not to be used as a sword to harm others," she said.
Laycock acknowledges he didn't have the religious freedom rights of commercial businesses in mind when he testified in support of the Religious Freedom Restoration Act in 1992. However, that doesn't mean the law should be banished from today's LGBTQ rights debates, he said.
"Gay rights examples were very much part of the testimony in support of the act," he said.
And allowing the Religious Freedom Restoration Act to be used as a defense doesn't guarantee that religious objectors will win, he added.
For example, the 6th U.S. Circuit Court of Appeals recently ruled against a funeral home owner in Michigan who cited the act to defend his decision to fire a transgender woman.
"We've got 25 years of experience now and there aren't that many high-profile wins," Laycock said.
Laycock, Carlson-Thies and other religious freedom advocates aren't trying to block new protections for the LGBTQ community.
“The Church is on record favoring reasonable measures that secure such rights,” Latter-day Saint leaders wrote.
However, they do take issue with the Equality Act's current approach and want to raise awareness of how it would affect religiously conservative Americans.
"I'm really disappointed that the discussion nationally on the Equality Act has not taken up the religious freedom angle. That's just tragic," Carlson-Thies said.
"There's plainly room for compromise," Laycock said. "It's not essential to equality for the LGBTQ population that we regulate religious organizations and force them to violate their own teachings or stop providing social services to people."
But the Equality Act's supporters take issue with the idea that gay and transgender Americans should be forced to compromise where other protected classes did not.
"We should treat LGBTQ people no better or worse," Durso said.
This impasse is familiar to those who work at the intersection of religious freedom and LGBTQ rights. Debates are often guided by an all-or-nothing mindset, Rauch wrote for National Affairs.
"A debate in which a few years ago there seemed to be fairly good prospects for reasonable accommodations has hardened into legal and political trench warfare," he said.
Congress probably won't change that this year, at least not with the Equality Act, policy experts said. The legislation is expected to pass the House easily, but the Republican-controlled Senate likely won't take it up for a vote.
However, Carlson-Thies hasn't given up hope for a different approach going forward.
He's working with LGBTQ rights and religious freedom advocates to craft legislation that creates new nondiscrimination protections for gay and transgender Americans while addressing potential religious objections.
"We're talking together about all the places where we can actually live together peacefully without being at each others' throats," he said.97 comments on this story
The Church of Jesus Christ of Latter-day Saints celebrates this approach in the new statement, noting its support for Utah’s “Fairness for All” legislation, which passed in March 2015 and balances protections for the LGBTQ community and religious objectors to same-sex marriage.
“Ongoing conflict between religious liberty and LGBT rights is poisoning our civil discourse, eroding the free exercise of religion and preventing diverse Americans of good will from living together in respect and peace,” leaders wrote.