On February 25, 2021, the U.S. House of Representatives voted 224-206 to pass the Equality Act, with all Democrats and three Republicans voting in favor of the bill. The Equality Act, filed as H.R. 5, seeks to expand the definition of “sex” to include “sexual orientation” and “gender identity” thereby revising every title of the Civil Rights Act of 1964 to add these categories as newly-protected classes in the federal code. The legislation would also substantially expand the areas to which those protections apply.

Simply put, the Equality Act will provide sexual orientation and gender identity with protected class status in existing federal nondiscrimination laws governing places of public accommodation, employment, housing, and recipients of federal financial assistance, all while exempting itself from the Religious Freedom Restoration Act.

While “nondiscrimination” sounds good in the abstract, in practice, this bill poses a serious threat to our First Amendment freedoms—our freedom of religion and speech in particular. Not only would the Equality Act curtail religious freedom protections, but also it will hinder the work of healthcare professionals and faith-based hospitals, undermine civil rights protections for women and girls, and silence the voices of millions of Americans. This bill would also negatively impact churches and religious schools, adoption and foster care providers, lawyers and medical care providers, and small business owners.

Specifically, the Equality Act would, among other things:

• eviscerate the Religious Freedom Restoration Act (RFRA) by explicitly rescinding RFRA’s protections. The Equality Act states: “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.”
• make the First Amendment the defense available against discrimination claims even though the Religious Freedom Restoration Act is the single most important protection for all Americans’ religious freedom at the federal level and generally more potent than the First Amendment.
• harm the hundreds of thousands of children in our nation’s foster care system by closing down faith-based adoption and foster care providers who believe children thrive best in a home with a married mother and father.
• threaten the many faith-based social service organizations that receive federal grants to enable them to better serve the most vulnerable among us every day.
• redefine “public accommodation” to include not just every organization, regardless of whether it is commercial or noncommercial, but to also include an individual whose operations affect commerce and who is a provider of a good, service, or program. In other words, the Equality Act makes every American a potential public accommodation.
• expand the definition of an “establishment” for purposes of a public accommodation to seemingly include houses of worship unless they limit their activities to members only, which few churches do.
• deny federal financial aid to students at faith-based colleges and universities unless those schools abandon policies and practices reflecting their sincerely held beliefs about marriage and sexuality.
• allow government officials to punish small business owners who serve everyone but cannot express every message or celebrate every event.
• require businesses to open up private, sex-specific spaces like locker rooms and dressing rooms to members of the opposite sex, forcing female employees and customers to share these private areas with men.
• force doctors, counselors, and healthcare practitioners to violate their conscience by requiring them to prescribe puberty blockers, cross-sex hormones, and “sex reassignment surgery” to otherwise healthy children.

Prohibiting discrimination is a worthy goal, and the Equality Act purports to prohibit discrimination on the basis of sex, gender identity, and sexual orientation. Sadly, the real consequence of the Equality Act would be to punish freedom of thought and belief. The Equality Act would make it extremely difficult for millions of Americans to live their lives according to their core religious beliefs. The Equality Act imposes an orthodoxy on American society and threatens those who hold a different opinion with the likelihood of government retribution for their beliefs.

Previously, the House passed the Equality Act last Congress, but the bill died in the Senate. CLS signed two letters during the 116th Congress in opposition to the Equality Act, one to the Committee on Education and Labor and one to the full House of Representatives. CLS will continue to oppose the Equality Act.

Kim Colby, Director of CLS’ Center for Law & Religious Freedom, called the Equality Act “an unqualified disaster for all Americans’ religious freedom” in an article in the Spring 2021 issue of The Christian Lawyer.

CLS is thankful that key Senators are waking up to the fact that the Equality Act attacks every American’s religious freedom. Erasing others’ rights is not equality.

Resources

The Equality Act, H.R. 5, February 25, 2021

Roll call vote, H.R. 5, February 25, 2021

S. 393 Co-sponsors – 117th Congress (2021-2022)

Senate Judiciary Committee Hearing, The Equality Act: LGBTQ Rights are Human Rights, March 17, 2021,

Fairness for All (FFA), H.R. 1440

Kim Colby, “The Equality Act’s Direct Assault on All Americans’ Religious Freedom,” The Christian Lawyer, Spring 2021

United States Conference of Catholic Bishops, The “Equality Act” Puts Charities at Risk

United States Conference of Catholic Bishops, The Terms of the Equality Act (Chart)

Kim Colby, “The Religious Freedom Restoration Act: A Complicated Legacy for Justice Antonin Scalia,” Outcomes, Summer 2016

Kim Colby, How the Religious Freedom Restoration Act Benefits All Americans

Kim Colby, “The Ramifications of the Bostock Decision,” The Christian Lawyer, Fall 2020

Kim Colby, “The Road to Bostock and Its Ramifications,” Journal of Christian Thought, Summer 2020