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Explainer: Would the Equality Act treat churches the same as restaurants and stores?

Conservatives and liberals are divided over how often houses of worship could face discrimination lawsuits if the Equality Act became law

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Jules Holynski, a volunteer at Loaves & Fishes of Tompkins County, carries meals for the next day’s distribution to a refrigerator in St. John’s Episcopal Church on Monday, Dec. 7, 2020, in Ithaca, N.Y.

John Munson, Associated Press

The Equality Act aims to improve the lives of gay and transgender Americans by banning many of the forms of discrimination they face.

If passed as written, the bill would add sexual orientation and gender identity to the list of personal characteristics protected by federal civil rights law and exponentially increase the number of businesses required to obey anti-discrimination rules.

Conservative people of faith have decried the Equality Act’s potential impact on faith-based colleges, charities and other organizations, and they’re also sounding alarms about how the bill’s approach to business regulations could lead to a surge in lawsuits against churches.

More specifically, the bill’s opponents claim it would lead the government to treat churches the same as convenience stores or restaurants and discourage houses of worship from opening up their building to offer food, shelter and other services to their communities.

“It tries to push religious people back behind a locked door and say ‘Don’t come out,’” said Mary Rice Hasson, who testified on the Equality Act before the Senate Judiciary Committee in March.

The bill’s supporters, on the other hand, believe these fears are overblown. Under the Equality Act, as in the past, churches would only be treated like places of public accommodation when they behave like secular businesses by, for example, renting out their community centers to nonmembers, said Katy Joseph, director of policy and advocacy for Interfaith Alliance.

Conservatives’ claims are “a matter of mobilization as opposed to an accurate representation,” she said. “It gets people to call their legislators when you make the case that your church doctrines are under attack.”

So should churches fear the Equality Act? Here’s what we know right now:

What is a public accommodation?

As it stands today, only a few categories of businesses are covered by the federal law that prohibits discrimination in places of public accommodation.

The list, which includes most hotels, restaurants, movie theaters and sports arenas, was carefully crafted, as legal scholar Garrett Epps wrote for The Atlantic in 2015. It took aim at the sites where racism most often occurred.

Policymakers did not include churches or other faith-based organizations in the list of covered businesses, but they also offered no blanket religious exemption.

Churches, like other establishments that aren’t listed, can be considered places of public accommodation when they behave like the ones named in the Civil Rights Act, said Sarah Warbelow, legal director for the Human Rights Campaign.

“Even under the narrow existing definition of places of public accommodation, there are instances where churches and religious institutions count,” she said.

When are churches public accommodations?

To explain how public accommodation status works, Warbelow offered a hypothetical example featuring a pool operated by a Jewish community center.

Like other private clubs, the Jewish community center has the right to limit its membership and allow only club members to use its pool. But if the center decided to have an open swim day in order to boost profits, it would need to abide by the laws that govern public pools, Warbelow noted.

“On days that its pool was open to the public, the Jewish community center couldn’t say they don’t allow Muslims or Christians. Once you’re open, you’re open,” she said.

However, when the open swim day ended, so, too, would the center’s time as a place of public accommodation. Nonmembers of the club wouldn’t have a right to swim on other days or access other center activities.

“The only thing nondiscrimination laws do is say when and where you open up to the public, you have to do so on an equal basis,” Warbelow said.

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Vehicles snake around the parking lot of a chapel belonging to The Church of Jesus Christ of Latter-day Saints to pick up food from the Utah Food Bank in Taylorsville on Monday, April 13, 2020. Opponents of the Equality Act worry that churches that partner with or operate their own food banks would be treated like places of public accommodation.

Kristin Murphy, Deseret News

What would change about public accommodations under the Equality Act?

Under the Equality Act, many more businesses and types of retail activity would be subject to anti-discrimination law. It expands the list of covered public accommodations to include “any establishment that provides a good, service or program.”

Supporters have argued that such a change is necessary in order to root out discrimination.

The narrow scope of public accommodations protections in the Civil Rights Act “was and continues to be insufficient,” said Alphonso David, president of the Human Rights Campaign, during a Senate Judiciary Committee hearing in March.

The Equality Act would also broaden the scope of anti-discrimination law by adding sexual orientation and gender identity-based protections. Businesses would need to ensure that policies governing customer interactions, bathroom use or dress code do not single out gay or transgender people for mistreatment.

The bill would “greatly expand the potential field of liability,” said Hasson, who is the Kate O’Beirne fellow in Catholic Studies for the Ethics & Public Policy Center.

How would the Equality Act affect churches?

The Equality Act does not exempt religious organizations. Instead, it creates new opportunities for churches to be considered places of public accommodation by adding things like “public gatherings” and “food banks” to the list of covered activities and establishments.

“You could see how a church opening up its premises to give away free food could be seen as a public accommodation” and be subject to discrimination lawsuits, Hasson said.

This potential outcome of the bill came up often during the Senate hearing in March. Republican lawmakers warned the Equality Act would make it harder for churches to serve people in need.

“Over the course of the last year, we’ve seen houses of worship across the country ... serve as locations for COVID testing and vaccine distribution, as well as offer food, clothing and rental assistance,” said Sen. James Lankford, R-Okla., adding that, if the bill passed, those churches could face “needless litigation.”

Republican Sen. Mike Lee of Utah said that houses of worship could be sued if they required men and women to sit in different places based on their sex. Sen. Lindsey Graham, R-S.C., worried the Catholic Church would be forced to allow women to become priests.

Warbelow and other policy experts paint a very different picture of what types of lawsuits would be possible under the Equality Act. Houses of worship would still only rarely be considered places of public accommodation, they said.

“If your AA meeting or food bank really is just for members of your faith, you are not then a place of public accommodation,” Warbelow said.

Still, churches would almost certainly face more lawsuits if the Equality Act became law, since many of them have policies that reflect their opposition to same-sex marriage and belief that gender identity is set at birth, Hasson said.

For example, a church with single-sex restrooms might require self-identified transgender males to use the women’s restroom. That could become a problem in those times when it’s serving the public.

Visitors “could allege discrimination,” Hasson said.

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Homeless people gather on a parking lot at the First Presbyterian Church in Dallas on Tuesday, Oct. 9, 2007. In response to a police crackdown on the homeless, the church has opened its parking lot to homeless people, allowing as many as 150 of them to sleep on the pavement while a security guard keeps watch.

Donna McWilliam, Associated Press

What legal protections do churches have?

In addition to increasing the likelihood of legal action, the Equality Act would limit the application of existing religious freedom law.

It says the Religious Freedom Restoration Act, which limits government interference with religious activity, can’t be used to challenge or defend against anti-discrimination claims.

“The bill would keep churches from using this protection that’s been law now for decades,” Hasson said.

Although churches would still be able to cite the First Amendment’s religious exercise protections as a defense, their case wouldn’t be as strong as it could be, she added, arguing that the Equality Act’s supporters seem to want houses of worship to lose.

“They’re doing everything they can to stack the deck” against churches, she said.

LGBTQ rights advocates reject this claim. The goal of the limit on the Religious Freedom Restoration Act is restoring that law to its original intent, David said in March.

Religious freedom “is not meant to be used as a sword to impose your religious beliefs on others. It’s meant to be a shield against discrimination,” he said.

What counts as a religious activity?

Joseph emphasized that, under the Equality Act, the government would still have no right to interfere with activities that are clearly religious. Churches could continue to set eligibility requirements for membership and pastors could preach what they believe.

“A church would never be required to oversee or conduct a wedding that is not consistent with its doctrinal teachings,” she said.

However, Joseph acknowledged that broader public accommodations protections would raise new questions about churches’ rights. Courts would have to better define under what circumstances a house of worship is subject to anti-discrimination law.

“This has not been a hotly contested area until now,” she said.

Hasson’s fear is that legal uncertainty would lead many religious organizations to withdraw from public life. Instead of thinking, “How can I help?” amid a community crisis, churches would ask, “Can I help without getting sued?”

The Equality Act “puts faith-based organizations, including churches, on the defensive,” Hasson said.