WASHINGTON — Under cold, gray skies, a coalition of religious and LGBTQ organizations gathered outside the Capitol building Friday to introduce a bill they say can solve the growing conflict between religious freedom and gay rights.
“This legislation allows us to settle the legal questions and get back to the business of loving our neighbors,” said Rep. Chris Stewart, a Republican from Utah and the bill’s chief sponsor. “There’s enough goodness in people that we can find a compromise that will protect basic human rights, reduce the stress, reduce the strife and at the same time protect basic civil liberties of religious freedom.”
The Fairness for All Act would ban discrimination against gay and transgender Americans in most areas of public life, while also protecting a variety of religious organizations and individuals with traditional, faith-based views on marriage and gender identity. It comes six months after the House passed the Equality Act, which would accomplish the first goal but reduce legal remedies available to religious objectors.
The Fairness for All Act offers a “principled” approach to some of today’s hottest debates, said leaders from the Seventh-day Adventist Church in a statement.
“The Seventh-day Adventist Church endorses this balanced and principled piece of legislation because it affirms two essential components of our belief system: honoring God and loving our neighbor,” they said.
Shannon Minter, legal director for the National Center for Lesbian Rights, said his organization does not support the bill but views its introduction as a “milestone.” He’s hopeful that the legislation and surrounding conversations will reduce mistrust between the LGBTQ community and more conservative people of faith.
“Many LGBTQ people have experienced devastating harms in the name of religion, so it is no surprise that some LGBTQ groups are reacting to the bill with initial skepticism and concern,” he said. “The only remedy for that mistrust is to continue the hard work of building bridges and engaging in the difficult conversations that we must have as a country in order to resolve our differences and secure freedom and equality for all.”
Other LGBTQ rights and religious freedom advocates were much more critical of the Fairness for All Act’s approach. Some critics claim it doesn’t offer enough protections for gay and transgender Americans. Critics on the other side of the issue said it undermines the rights of religious organizations.
“For LGBTQ people living at the intersection of multiple marginalized identities, this bill is a double whammy of dangerous rollbacks and discriminatory carve-outs. This bill is both wrong and harmful, and we strongly oppose it,” said Alphonso David, president of the Human Rights Campaign, a leading LGBTQ rights advocacy group, in a statement.
Rep. David Cicilline, D-R.I., said in a statement that the legislation harms the people it claims to protect.
“This bill does not protect LGBTQ people. Instead, it codifies discrimination,” he said. Cicilline is the chief sponsor of the Equality Act, which passed the House in May.
Some conservative groups, including some religiously affiliated organizations, said the Fairness for All Act would lead to more discrimination, not less.
“Its protections for religious liberty come at the high cost of enshrining a misguided sexual and gender ideology into federal law,” wrote Ryan T. Anderson, a senior research fellow with The Heritage Foundation, in a commentary piece about the bill.
Stewart and others acknowledged the path to passage of their proposal will be long and difficult, particularly in the politically charged atmosphere of a pending impeachment and in a Democrat-control House that made passage of the Equality Act a top priority.
But coalition members showed that the experience they gleaned from hammering out a solution to emotional and complex constitutional questions among themselves has armed them with the patience needed to eventually get a hearing and vote in Congress.
“What we are hoping to do, now that the bill has been introduced, is to start to have a broader public discussion. And to do that we needed to have a piece of legislation and we needed to launch this coalition formally,” said Tyler Deaton, senior adviser at the American Unity Fund, a conservative LGBTQ rights organization that’s part of the Freedom For All coalition.
The Fairness for All approach
The Fairness for All Act is the result of more than 3 1⁄2 years of discussions between a diverse group of religious leaders, gay rights activists and legal experts. Coalition members were united by the sense that “winner-take-all” approaches to conflict between religion and LGBTQ rights are tearing the country apart, said Tim Schultz, who is president of the 1st Amendment Partnership.
“The brand of religious freedom has been tarnished by those who have supported winner-take-all,” he said.
The bill’s supporters share a desire to end discrimination against the LGBTQ community and also protect the future of religious institutions, Schultz said. The Fairness for All Act would accomplish this by outlawing most forms of discrimination against the LGBTQ community while offering some exemptions to people of faith who object to same-sex marriage.
“We believe basic civil rights should be guaranteed for everyone regardless of sexual orientation, gender identity, sex or religion. Those rights can be fully protected while safeguarding religious freedom,” reads a statement from the American Unity Fund.
Under the Fairness for All Act, sexual orientation and gender identity would be protected characteristics under the 1964 Civil Rights Act. It would no longer be legal for most organizations to fire, evict or refuse service to gay or transgender Americans.
In this way, the bill is very similar to the Equality Act. What makes it unique is that it spells out how these changes to federal civil rights law could affect religious organizations and attempts to preemptively solve potential conflict.
For example, the Fairness for All Act would change the funding process for the adoption and foster care system, sending government money straight to the couples deemed eligible to adopt and empowering them to take that money to whatever certified agency best serves their needs. The government has previously been criticized for sending public funds directly to faith-based adoption agencies.
The bill would also make it illegal to revoke a religious group’s tax exempt status because of its beliefs on marriage. Religiously affiliated colleges and universities could not lose their accreditation or ability to receive federal scholarship funds as a result of faith-based student morality codes.
Groups involved in drafting the bill said it would uphold the dignity of all Americans and ensure a more peaceful future.
“The Council for Christian Colleges & Universities (CCCU) supports Fairness for All as a solution-based approach that addresses the cultural tension surrounding religious freedom and LGBT rights. Without compromising the orthodox Christian convictions held by Christian colleges and universities, Fairness for All underscores that all persons are created in the image of God, implying dignity, value and worth,” said Shirley Hoogstra, the organization’s president, in a statement.
Leaders from The Church of Jesus Christ of Latter-day Saints offered a similar assessment.
The church “commends the introduction of federal legislation that seeks to preserve religious freedom and protect LGBT individuals from discrimination. We’re grateful for the leadership of Utah Rep. Chris Stewart and other congressional supporters of this cause. The nation is more united when diverse individuals and groups can work cooperatively to advance sound policy,” they said.
Strong pushback
The Fairness for All coalition tried to address potential pushback to the the bill while drafting it, meeting with groups known to reject efforts to balance religious freedom and LGBTQ rights.
“We met with organizations that we don’t think will ever sign on since we know their interests are implicated,” said Stanley Carlson-Thies, who is the founder and senior director of the Institutional Religious Freedom Alliance and helped draft the bill.
While these conversations inspired adjustments to the bill, they did not silence critics. Several organizations and policymakers from across the political spectrum spoke out Friday against the Fairness for All Act.
“The ‘Fairness for All’ Act is anything but fair, and it certainly does not serve all of us. It is an affront to existing civil rights protections that protect people on the basis of race, sex and religion and creates new, substandard protections for LGBTQ people with massive loopholes and carve-outs, and upends critical federal programs that serve children in need,” reads a joint statement from more than 15 civil rights groups, including the ACLU.
Rabbi Jack Moline, the president of Interfaith Alliance, said the bill would endanger the lives of gay and transgender Americans.
“So-called carve-outs for religious exemptions in commerce, family definition, medical care or other legal and legally defined benefits of citizenship are, by any other name, a repudiation of the very principles of equality that are foundational to the United States,” he said in a statement.
Rabbi Moline, Cicilline and the joint statement emphasized support for the Equality Act, arguing that it’s unnecessary to debate an alternative approach to expanding LGBTQ rights.
“The Equality Act was passed through the House of Representatives with bipartisan support. ... The ‘Fairness for All’ Act, on the other hand, was introduced by a small group of lawmakers,” the joint statement said.
Anderson, who met with the Fairness for All coalition as the bill was being written, said he doesn’t doubt that much “good will” went into the legislation, but that it still represents a threat to the common good.
“This will allow the federal government to use our civil rights laws as a sword to punish citizens who dissent from the reigning sexual orthodoxy. This is certain to create significant harm to the common good, especially for the privacy, safety and equality of women and girls,” he said.
Reactions like these aren’t surprising, since the legislation deals with some of the most hot-button issues in the country today, Carlson-Thies said. There’s been a breakdown of trust between religious organizations and LGBTQ rights advocacy groups, and that won’t be solved overnight.
“LGBT people feel like they’ve been harmed a lot by religious people and some religious people think LGBT people will pressure them whatever way they can,” he said. “There’s a lot of reasons why, even if you have sympathy, there’s also a lot of suspicion.”
There are also political and legal justifications to try to prevent a compromise bill like the Fairness for All Act from moving forward.
Within the next six months, the Supreme Court will rule on whether employment discrimination law already bans firing someone for being gay or transgender. Additionally, the 2020 election could shake up the balance of power in Congress, enabling the victors to pass legislation that benefits them and offers nothing to the other side.
“It’s easy for people to say, ‘Wait on the Supreme Court. We’ll win.’ Or, ‘After the election, we’ll have a majority.’ Whatever side is a little ahead thinks we don’t have to do it now,” Carlson-Thies said.
But waiting for a new ruling or the next election means overlooking opportunities to build consensus right now. Some gay rights groups described the bill as an opportunity to build a dialogue with more conservative Americans about discrimination and civil rights.
“Rep. Stewart and many conservative faith organizations now recognize that LGBTQ Americans must be included in and protected by our nation’s civil rights laws. Although Equality Utah was not involved in drafting the Fairness for All Act, and we have significant concerns about some of the bill’s provisions, we look forward to beginning a dialogue with the bill’s sponsor,” said Troy Williams, Equality Utah’s executive director, in a statement.
Schultz hopes religious organizations will also welcome the opportunity for dialogue with people with different beliefs, noting that it’s misguided to act as if calls to pass new gay rights protections will ever go away.
“In our society, it’s just not tenable to say, ‘Religious freedom: yeah! Gay rights: no!” he said.
More than 7 in 10 U.S. adults (71%) support laws that would ban LGBTQ discrimination in housing, hiring and places of public accommodation, according to a June survey from Public Religion Research Institute.
Long road ahead
Outside the Capitol on Friday, Fairness for All Act supporters stood bundled in coats and scarves and solemnly accepted the reality of a protracted process to get their bill a hearing. The scene was very different from the pep rally-like atmosphere that accompanied the Democrats’ introduction of the Equality Act in March.
One Fairness For All stakeholder most anxious about the time frame for solving the conflict is Hoogstra from the Council for Christian Colleges & Universities.
She said billions of dollars in federal student aid and research grants are at stake unless a solution is found for faith-based schools that base their hiring, conduct codes and housing on religious teachings that come in conflict with LGBTQ rights.
“We have a lot to lose,” she said.
Although the bill was designed to appeal to people with a variety of religious and political backgrounds, supporters have struggled to garner bipartisan support. The Fairness for All Act’s co-sponsors are all Republicans, including Utah’s Rob Bishop and John Curtis.
Utah’s lone Democrat in the House, Ben McAdams, said he supports Stewart’s effort but is awaiting more discussions with stakeholders before signing on.
“With various bills now before us, it is an opportunity to begin bridge-building conversations to find common ground,” said McAdams, who voted for the Equality Act. “Our shared goal is to protect all Americans from discrimination, including people of faith and LGBTQ individuals, and I plan to be part of the ongoing conversations among all faith and civil rights leaders to build consensus.”
Utah’s junior Sen. Mitt Romney, a Republican, also expressed appreciation for the coalition behind the bill and said his “priority is to preserve the constitutional rights of all Americans to practice their faith, while also ensuring all people are treated with dignity and respect.”
Sen. Mike Lee, R-Utah, did not reserve judgment on the act Friday.
“The Fairness For All Act, like my own First Amendment Protection Act, is a good-faith attempt to accommodate both religious liberty and the LBGT community. However, the FFA would so narrow First Amendment protections that I must actively oppose it,” he said.
Even if the bill makes little progress in Congress over the next few months, Fairness for All coalition members said they’re looking forward to ongoing conversations about the legislation. They want to raise awareness of the notion that it is possible to overcome divisions and find common ground.
“A lot of people have asked me why am I doing this now?” Stewart said. “I’m like, if not now, when? Let’s just lay down our marker, let’s begin to persuade people. Let’s begin to make our case. We know it may take some time, but let’s start now.”