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The House has passed the Equality Act, but religious freedom concerns remain

The Equality Act would add sexual orientation and gender identity-based protections to federal civil rights law.

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Photo illustration by Alex Cochran

In a largely party-line vote Thursday, the U.S. House of Representatives passed landmark LGBTQ rights legislation, advancing one of the Biden administration’s key policy initiatives to the Senate, where observers say the Equality Act won’t pass without significant changes.

The bill, which would amend anti-discrimination law to add protections for gay and transgender Americans, passed on a 224-206 vote. Three Republicans supported the legislation, which previously passed the House in May 2019.

“Today is a great day. Today we send a clear message to every LGBTQ person that you belong here, that you are loved for who you are and that we won’t stop fighting until your experience is true equity and equality,” said Rep. Rashida Tlaib, D-Michigan. 

Several Republican lawmakers decried the Equality Act’s passage, arguing that it will expose faith groups and religious individuals to lawsuits over their beliefs about sexuality and marriage.

“They will be forced to set their religious beliefs aside or face consequences. This is unacceptable. This is un-American,” said Rep. Andy Biggs, R-Arizona. 

Rep. Yvette Herrell, R-New Mexico, argued that the bill protects members of the LGBTQ community by putting other Americans at risk for discrimination. 

“We can’t be so anxious to protect one class of people that we harm another,” she said. 

No member of Utah’s House delegation voted in favor of the bill.

The Equality Act will now move to the Senate. Here’s what you should know about the bill’s plan to overhaul federal civil rights law:

What’s in the Equality Act?

The Equality Act’s primary goal is to reduce anti-LGBTQ discrimination. It would add sexual orientation and gender identity to the list of personal characteristics that are protected by federal civil rights law.

The bill would also expand the types of public spaces that are subject to nondiscrimination rules. Currently, regulations cover only a small share of businesses, including restaurants, amusement parks and hotels. Under the Equality Act, “any establishment that provides a good, service or program” and any transportation service would be covered, as well.

“We want to expand the definition of retail settings to better capture what discrimination looks like” today, said Laura Durso, then-vice president of the Center for American Progress’ LGBT Research and Communications Project, to the Deseret News in 2019.

The Equality Act also aims to limit faith-based exemptions to nondiscrimination policy. Although it would leave in place the religious exemptions written into existing civil rights laws, it would prevent faith groups from using the Religious Freedom Restoration Act to fight for additional adjustments or defend themselves from discrimination-related lawsuits.

“The Religious Freedom Restoration Act of 1993 shall not provide ... a basis for challenging the application or enforcement” of this law, the Equality Act reads.

The bill’s proponents believe allowing additional faith-based carve outs to the law would undermine its purpose.

“We’re not against the Religious Freedom Restoration Act. We’re against its being used in a broad way to harm certain communities,” Durso said.

Who supports the Equality Act?

The Equality Act has been around for several years — Its lead sponsor, Rep. David Cicilline, D-Rhode Island, has now introduced it four times — but it didn’t pick up steam until the last Congress.

Democrats made passing the bill a legislative priority in 2019. It easily passed the Democrat-controlled House, but stalled under Republican leadership in the Senate.

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Rep. David Cicilline, D- R.I., center, speaks during the Equality Act Re-Introduction news conference in the Capitol on Wednesday, March 13, 2019 in Washington.

Kevin Wolf, Associated Press

President Joe Biden called for passage of the bill while on the campaign trail and listed it among his goals for his first 100 days in office. Last week, he again expressed support for the bill after it was reintroduced in the House.

“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,” Biden tweeted on Feb. 19.

The bill also enjoys strong support from LGBTQ rights advocates. Leaders from groups like the ACLU and Human Rights Campaign argue that the Equality Act would ensure that gay and transgender Americans are no longer fired, kicked out of their housing or otherwise discriminated against due to their sexuality or gender identity.

“LGBTQ people across the country remain vulnerable to discrimination on a daily basis and too often have little recourse. Without comprehensive federal protections, the basic rights of LGBTQ people vary state to state,” said Kevin Jennings, the CEO of Lambda Legal, in a recent statement.

Alphonso David, president of the Human Rights Campaign, described the Equality Act’s passage as “a major milestone for equality bringing us closer to ensuring that every person is treated equally under the law.”

Some religious organizations also released statements this month in support of the bill, praising lawmakers’ efforts to protect vulnerable members of the LGBTQ community.

“Our country is founded on the idea that all are created equal — a value shared across faith traditions and philosophies. The aspirations of our founders have not always managed to find full expression in society. The Equality Act is a step forward to the full — and overdue — citizenship rights for LGBTQ persons,” said Rabbi Jack Moline, president of Interfaith Alliance, in a statement.

Sister Simone Campbell, executive director of Network, a Catholic social justice organization, said during a Wednesday press call that her religious beliefs call her to advocate on behalf of marginalized groups.

“I think the bedrock position of our faith is to welcome and secure safety and the ability to flourish for all,” she said.

Could the Equality Act harm faith groups?

However, other faith leaders have criticized the Equality Act’s approach to religious freedom.

If the bill passed in its current form, conservative faith groups would face more pressure to change their teachings related to marriage and sexuality, and they would also have a harder time defending their policies in court, wrote leaders from the Ethics and Religious Freedom Commission of the Southern Baptist Convention in a recent article on the bill.

The Equality Act “would force faith-based child welfare organizations to abandon their deeply held religious beliefs or be shut down by the state. The state-forced closures of such agencies is especially detrimental at a time when multiple crises — including the COVID-19 pandemic and the ongoing opioid epidemic — have led to increases in the number of children in need of services,” they said.

Five prominent Catholic bishops offered similar arguments in a letter to congressional leaders calling on them to oppose the bill. The Equality Act would fuel discrimination against people of faith, they wrote.

“The Equality Act purports to protect people experiencing same-sex attraction or gender discordance from discrimination. But instead, the bill represents the imposition by Congress of novel and divisive viewpoints regarding ‘gender’ on individuals and organizations,” they said.

The bishops also argued that new, gender identity-based nondiscrimination protections would threaten the future of women’s sports and make shared bathrooms less safe, echoing arguments made against the Equality Act by some conservative advocacy groups.

The bill “would create a nationwide transgender policy in single-sex facilities. It would affect everything from girls’ and women’s showers and locker rooms to women’s shelters and women’s prisons, endangering safety and diminishing privacy,” wrote leaders from The Heritage Foundation in an article on the legislation.

Several Republican lawmakers highlighted their concerns about the Equality Act’s impact on women’s sports during House debate on the legislation, arguing that transgender athletes have an advantage over other competitors. 

“The parents of every daughter who has ever poured their hopes and dreams into a sport should be outraged that their daughter’s dreams and hopes no longer matter to their representatives,” said Rep. Tom McClintock, R-California.

Is there room for compromise?

Due to concerns over the Equality Act’s potential impact on religious freedom, some faith groups support a competing piece of legislation, the Fairness for All Act, which is sponsored by Utah’s Rep. Chris Stewart, a Republican.

Like the Equality Act, this bill would update federal civil rights law to bar anti-LGBTQ discrimination. However, rather than limit religious freedom protections, it would expand exemptions available to faith-based organizations.

“This is a great compromise bill where everyone gets some of what they want. When this bill passes, our LGBTQ brothers and sisters get federal protections outside of the narrow employment protections recognized by the Supreme Court ... and our religious brothers and sisters get individual religious freedom protections that are not currently guaranteed by federal law,” Stewart said in a statement to the Deseret News in December.

The Church of Jesus Christ of Latter-day Saints was among the organizations that applauded the Fairness for All Act when it was introduced at the end of 2019.

“The nation is more united when diverse individuals and groups can work cooperatively to advance sound policy,” Latter-day Saint leaders said at the time. “The church endorses this balanced approach that fosters greater fairness for all.”

Justin Giboney, president of AND Campaign, a Christian advocacy group, reiterated his support for the Fairness for All Act in a statement released Thursday.

“The Equality Act is not the product of a thoughtful and healthy civic dialogue or a transparent policy-making process. It was not discussed in detail with a diverse set of faith leaders who’ll bear the brunt of its excesses,” he said, adding that “the best way to accomplish the bill’s objective is through the Fairness for All Act, which is a product of the faith community and the LGBTQ community coming together and challenging themselves to find ways to co-exist and to promote mutual tolerance.”

What will Congress do next?

At first glance, the Equality Act appears to have a much better shot at becoming law than the Fairness for All Act. It is the preferred legislation of the Democratic Party, which controls both houses of Congress and the White House.

However, to avoid a filibuster in the Senate, the Equality Act needs to have the support of at least 60 senators, meaning that some Republicans will need to back it. Utah’s two Republican Sens. Mike Lee and Mitt Romney currently oppose the bill.

“Sen. Romney believes the Equality Act would inappropriately threaten fundamental religious liberties, and he will not be able to support the House bill,” said Arielle Mueller, a spokeswoman for the senator.

As of this week, the Equality Act has less Republican buy-in than in 2019; Sen. Susan Collins, R-Maine, who previously served as a co-sponsor, is no longer sponsoring the bill.

The legislation also lost its Republican co-sponsors in the House, where just three Republicans — Reps. John Katko, Tom Reed and Brian Fitzpatrick — voted in favor of the bill Thursday.

The Fairness for All Act, on the other hand, will reportedly gain Democratic co-sponsorship, according to the Washington Blade.

If Biden and Democratic leaders are serious about expanding LGBTQ nondiscrimination protections, they’ll likely have to find a way to bridge the gap between the two bills, said Tyler Deaton, who is a senior adviser to the American Unity Fund, a conservative gay rights advocacy group, to the Deseret News in December.

“Right now, we have two bills that are generally trying to accomplish the same thing. I think the Fairness for All Act is much closer to what a final product is going to look like,” he said.

Both parties would benefit from working together to resolve growing conflict between religious freedom and LGBTQ rights, wrote former Utah Gov. and Bush administration official Mike Leavitt in a recent essay for Deseret Magazine.

“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,” he wrote.

Rep. Burgess Owens, R-Utah, called on Democrats to accept amendments to the Equality Act during House debate on the bill ahead of Thursday’s vote.

“Why not make the law clear to promote civil rights and religious liberties? That would be historic and a great unifying thing to do,” he said.