The Equality Act, which the House of Representatives is expected to pass this week, would remove religious liberty protections and make people of faith “second-class citizens,” according to one legal expert.
The bill, HR 5, would amend the 1964 Civil Rights Act to prohibit discrimination on the basis of gender identity and sexual orientation.
President Joe Biden offered his support for the legislation this week, tweeting, “The Equality Act provides long overdue federal civil rights protections for LGBTQ+ Americans, preventing discrimination in our housing, education, public services, and lending systems. I urge Congress to swiftly pass this historic legislation.”
The Equality Act provides long overdue federal civil rights protections for LGBTQ+ Americans, preventing discrimination in our housing, education, public services, and lending systems. I urge Congress to swiftly pass this historic legislation.
— President Biden (@POTUS) February 19, 2021
The Equality Act explicitly pre-empts the protections enshrined in the Religious Freedom Restoration Act for people of faith.
“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 legislation says.
The RFRA established a higher bar that laws must pass when they interfere with the practice of a person’s religious beliefs.
It was passed in recognition of the “unalienable right” to the free exercise of religion as enumerated in the First Amendment to the Constitution.
The Equality Act would likely have an impact on Christian business owners.
The legislation broadens the definition of public accommodations under the Civil Rights Act to include any establishment that provides a good or service and prohibiting discrimination based on “sex (including sexual orientation and gender identity).”
“One upshot of all of this, then, is that the Equality Act would affect businesses like flower shops and bakeries that have been at the center of discrimination court cases in recent years — for example, a baker who doesn’t want to provide a cake for a same-sex wedding,” NPR reported.
In 2018, the Supreme Court, in a 7-2 decision, ruled in favor of a Christian baker who declined to make a custom wedding cake for a same-sex couple, citing his religious conviction that marriage is between a man and a woman.
Denise Harle, senior counsel with Alliance Defending Freedom, told CBN News that people of faith would be stripped of their rights if the proposed legislation passed.
“The Equality Act treats people of faith as second-class citizens,” she said. “It specifies a certain point of view and it labels it as bigotry.”
CBN News added, “Under the bill, Christian beliefs are unlawful. Churches could be prevented from requiring employees to abide by their biblical beliefs about marriage and differences between men and women.”
Douglas Laycock, a law professor at the University of Virginia, echoed Harle’s concerns that religious liberty will be a casualty if the Equality Act becomes law.
“It protects the rights of one side but attempts to destroy the rights of the other side,” he told NPR. “We ought to protect the liberty of both sides to live their own lives by their own identities and their own values.”
Additionally, Inez F. Stepman, a senior policy analyst with the Independent Women’s Forum, wrote in a Tuesday Op-Ed for The Wall Street Journal that the consequences for women would be dire.
“By erasing sex as a distinct legal category, the measure threatens to open up female-only spaces and opportunities designed to increase representation for girls to biological men, which can endanger the safety of women and girls,” she argued.
“The Equality Act would threaten the existence of women’s prisons, public-school girls’ locker rooms, and women’s and girls’ sports teams,” Stepman continued.
“It would limit freedom of speech, freedom of association, accurate data collection, and scientific inquiry. It would threaten the rights of physicians who doubt the wisdom of performing life-changing, reproduction-limiting procedures, and parents who seek to protect their minor children from such treatment.”
The Equality Act easily passed the House in 2019 with unanimous Democratic support (along with eight Republicans), so it is expected to easily pass again this week.
However, the bill’s fate in the Senate, with its 50-50 party split is less certain. The legislation would need Republican support to overcome the 60-vote filibuster threshold.
NPR reported that moderate Sen. Susan Collins of Maine co-sponsored the Equality Act in 2019, but Sen. Mitt Romney of Utah has already come out in opposition to it, and Sen. Rob Portman of Ohio is concerned about the legislation’s impact on religious liberty.
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