It sounds counterintuitive, but America’s current political divide may actually provide the right environment for compromise, especially on some of the thorniest aspects of the nation’s simmering culture war. The key is mutual vulnerability.
As I learned when I was governor of Utah, and later as head of the Department of Health and Human Services, opposing political parties rarely reason together voluntarily. But when majority control is closely divided — as it is now — both parties have strong incentives to move to the middle. Standoffs can be tamed in the shared quest to win moderates.
The U.S. Senate is currently split 50-50, with the vice president breaking the tie in favor of the Democrats. Meanwhile, the House of Representatives is controlled by Democrats but is vulnerable to a midterm shift in power.
Both sides, in other words, are looking for ways to win on the margins. Brokering a compromise on the cultural wars may do the trick. And there is one area in particular where compromise is possible, and urgent: finding a balance between LGBTQ rights and religious freedom. To date, the conflict has been framed as a binary choice. LGBTQ-rights advocates argue religious freedom is merely a license to discriminate; people of faith assert laws that force them to violate their conscience are unconstitutional.
In partisan politics, we call these “wedge issues” — they force people to pick sides. But it’s a false dichotomy. There are ways to share space. It’s ultimately mutual vulnerability that pulls both ideological extremes away from their insistence on political purity and back toward sustainable solutions.
Right now, the Equality Act represents an unyielding position on LGBTQ rights from Democrats. The bill, which the House is expected to vote on this week, would amend the Civil Rights Act to prohibit discrimination based on sexual orientation and gender identity in employment, housing, public accommodations, public education, federal funding and other aspects of life.
It has been a fixture in Democratic campaigns, and President Joe Biden touted his plan to enact it in his first 100 days.
Republicans have opposed the Equality Act because it nullifies many of the religious freedom protections afforded under U.S. law. The act, for example, eliminates Religious Freedom Restoration Act protections passed in 1993, representing a grave threat to religious expression for many believers.
Last Congress, the Equality Act passed in the House of Representatives. It was never taken up by the Republican Senate majority. The outcome of the 2020 election, however, left Democrats in control of both chambers of Congress and the White House. Speaker Nancy Pelosi has symbolically numbered the bill HB5, which connotes its high priority. It will most certainly pass the House once again, and Biden has restated his commitment to pursue passage of the bill early in his term.
Only one obstacle stands in the way: the Senate.
Under current Senate rules, the Equality Act must gain the support of 60 senators to pass. There are only 50 Democrats. At least 10 Republican votes are required for passage. Given the negative implications for religious freedom currently part of the Equality Act, Republican support seems unlikely.
The political stalemate continues. And yet mutual vulnerability hovers in the future for both political parties, meaning this could be the moment when historic progress is made that supports people of faith and LGBTQ Americans.
The midterm elections are already on the horizon. Historically speaking, the party of the incumbent president rarely does well. During a time of economic turmoil and a pandemic, if Democrats aren’t careful, a loss of control of the House of Representatives is a realistic scenario. But Republicans, too, have vulnerabilities.
There are more Republicans up for election in 2022 than Democrats. And Republican senators feel worry radiating from churches, faith-based schools and universities and social service providers in their states who verbalize the devastating impact the Equality Act would have on their basic religious missions.
Mutual vulnerability is present. An environment conducive to a shared space solution exists right now.
Democrats know that the Equality Act must become a genuinely bipartisan undertaking, one that values the freedoms of all Americans. Then, and only then, could the Equality Act become a stable long-term legislative achievement of the same noble caliber as the Civil Rights Act of 1964, of which it aspires to form a part.
This could occur if 10 Republican senators are willing to support passage of the Equality Act in exchange for robust amendments assuring core religious freedoms alongside the new protections for LGBTQ people. Democrats, in turn, must be willing to compromise. The question history awaits is whether this generation of lawmakers will have the wisdom and nobility to seize this moment to solve our culture war standstill.
Mike Leavitt is a former governor of Utah and former secretary of Health and Human Services. He is the founder and chairman of Leavitt Partners.