SALT LAKE CITY —
Federal religious freedom law could soon fundamentally change, and almost no one is paying attention.
Buried in the dry, complicated appropriations bills passed by the House this summer are regulations that would restrict religious organizations’ access to government funds. The proposals aim to expand protections for gay and transgender Americans and eliminate faith-based exemptions to nondiscrimination rules.
This aspect of the ongoing federal budget battle shows that the Democrat-controlled House hasn’t backed down from its goal of boosting LGBTQ rights and limiting the scope of religious freedom law, despite the Senate’s refusal to consider the Equality Act, which would create federal sexual orientation and gender identity-based nondiscrimination protections. The bill passed the House in May.
“LGBTQ rights advocates and others are looking for opportunities to move the ball forward. We want to do that in places where we see traction,” said Laura Durso, vice president of the LGBT Research and Communications Project at the Center for American Progress.
The lack of an outcry about the bills also shows that religious freedom advocates are failing to grasp or respond to legal shifts that could soon take place.
“The moment to confront the reality of what’s going on may pass us by,” said Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance.
It’s not unusual for hot-button political battles to spill over into budget debates, according to policy experts. Since appropriations bills have to pass, lawmakers try to use them to advance policies that might never get a hearing on their own.
“You have to pass appropriations bills. You don’t have to pass the Equality Act,” Carlson-Thies said.
Democrat and Republican leaders also use budget legislation to reiterate their key priorities. This summer, House leaders emphasized their support for migrants at the U.S.-Mexico border, climate science and members of the LGBTQ community while outlining more ordinary spending guidelines.
For example, HR2740, which covers appropriations for the departments of Health and Human Services, Labor, Education, Defense and related federal agencies, would block government funding from going to organizations that discriminate on the basis of gender identity or sexual orientation, like adoption agencies that won’t coordinate adoptions for same-sex couples.
“The moment to confront the reality of what’s going on may pass us by.”
Section 236 adds that the Department of Health and Human Services cannot grant exceptions to nondiscrimination rules, as it has in the past.
If this proposal becomes law, it could harm faith-based groups that, for religious reasons don’t work with gay or transgender clients, said Tim Schultz, president of 1st Amendment Partnership.
“This would be a fundamental change in the law in terms of their ability to qualify for federal grants,” he said.
Similarly, HR3055, which funds the departments of Housing and Urban Development, Commerce, Agriculture and other related agencies, aims to block alterations to Obama-era protections for transgender Americans seeking housing assistance. The Trump administration announced plans to adjust those rules in May in order to protect religiously affiliated homeless shelters.
“Far too many LGBT Americans still face discrimination and the Trump administration is encouraging even more of it with its backwards policies. Our appropriations bills ensure that the Trump administration cannot make it easier for LGBT people to be denied access to health care and housing,” said Nita M. Lowey, chairwoman of the House Committee on Appropriations, in an email.
Both bills would make it harder for some faith-based organizations, like homeless shelters that require clients to use the facilities that correspond to their sex at birth, to stay in business, religious freedom advocates said.
“Protections (for faith-based nonprofits) that existed through multiple administrations, both Republican and Democratic, and multiple Congresses” could disappear, Schultz said.
If signed into law, the House appropriations bills would achieve only a small portion of the LGBTQ rights-related goals outlined in the Equality Act. They would keep federal funding from supporting sexual orientation or gender identity-based discrimination, but they wouldn’t alter federal civil rights law or limit the legal options available to conservative, faith-based organizations that object to the changes.
However, that doesn’t mean the bills are insignificant, Durso said. They would ensure that gay and transgender Americans who receive services from federally funded health clinics or homeless shelters are treated with respect.
Schultz and Carlson-Thies agree that the appropriations bills are a big deal. They could fundamentally shift religiously affiliated nonprofits’ relationship with the government, making it impossible for faith-based adoption agencies to access federal foster care funding or a church-operated homeless shelter to receive government support.
But they’re having a much harder time than LGBTQ rights advocates getting members of Congress to care.
“Changes to regulations and appropriations riders affecting federal grantees is not an easy story to tell,” Schultz said.
In the short term, confusion about the religious freedom-related consequences of this year’s appropriations bills may not matter. One of the goals of the budget deal reached by party leaders in July is to limit the number of controversial policy battles waged during the appropriations process, so the LGBTQ rights-related pieces of HR2740 and HR3055 may be automatically off the table.
Even if they remain in play during appropriations negotiations this fall, it’s unclear what House Democrats are willing to sacrifice in order to protect LGBTQ nondiscrimination rules, Schultz said. Those guidelines could be treated like a bargaining chip instead of an essential piece of the legislation.
“It’s not entirely clear to me that legislators put these in because they think this is a way to pass them. They might have put them in as a way of putting the other party into an uncomfortable political position,” he said.
However, in the long run, the persistent lack of awareness about how expanding LGBTQ rights affects people of faith will be a major problem, Carlson-Thies said. Lawmakers and advocacy groups may not engage with the concerns of religious organizations until it’s too late.
“It’s a concern I have. If these things are not settled through principled discussions, then things will happen because people don’t understand them or face pressure to get something else done,” Carlson-Thies said.
During House committee deliberations this summer over the appropriations bills, few lawmakers expressed concern about eliminating nondiscrimination exceptions for faith-based organizations.
Similarly, when the House judiciary committee weighed the Equality Act in April, the bill’s opponents obsessed over the potential for transgender women to dominate women’s athletics instead of addressing the nitty-gritty details of how the legislation would affect religious colleges and universities or faith-based adoption agencies, Carlson-Thies said.
“Some staffers and even House members were shocked when they were told about the consequences the Equality Act would have for religious freedom” after the bill passed the House in May, he said.
Few LGBTQ rights advocates see this lack of engagement as a problem. They argue that religious freedom concerns are overblown and shouldn’t derail efforts to protect members of the LGBTQ community from discrimination.
Sexual orientation and gender identity-based discrimination “is not something the government should be enabling” by offering accommodations to faith groups, Durso said. “It’s something the government should expressly stand against.”
Lowey from the House appropriations committee also rejected the idea that LGBTQ nondiscrimination protections amount to an attack on conservative people of faith.
“Religious freedom doesn’t allow anyone to harm their fellow Americans, and that do-no-harm principle is reflected in these provisions,” she said.
Members of Congress who disagree with these viewpoints need to stop dragging their feet, according to Schultz and Carlson-Thies. The Democrat-controlled House isn’t going to stop trying to limit the scope of religious freedom law in the process of expanding LGBTQ rights, so Republican leaders have to start taking their arguments seriously while they still control the Senate.
“You can’t just avoid them,” Schultz said. “If you’re a Republican, you might feel like this is a losing political issue … and that it’s better not to talk about these things. But … they’re not going to go away.”