Fairness for All Act seeks to balance LGBTQ, religious rights

by Tanner Bean in "The Idaho Statesman"

Ever heard of pluralism? It’s basically a fancy word for diversity. And it’s at the heart of the American promise, the promise that no matter who you are or where you come from, you can make it here. Yet, in our recent political discourse, pluralism is being forgotten.

This month, Utah Congressman Chris Stewart, along with U.S. Rep. Mike Simpson, R-Idaho, and seven other members of Congress, launched the Fairness For All Act, a pioneering civil rights proposal at the juncture of religious freedom and LGBTQ rights. It’s the first time a Republican has ever introduced a bill that protects the LGBTQ community. However, the bill is far different from the Equality Act championed by House Democrats. While the Equality Act grants sexual orientation and gender identity protected class status under federal law, Fairness For All goes further, homing in on the most difficult clashes between the faith and LGBTQ community and diffusing them in measured compromises. If passed, Fairness For All would be the most monumental leap for LGBTQ rights and religious freedom this country may ever see. Congressman Stewart aptly called Fairness For All an “enormous and delicate task.”

Such a brave effort to bridge the gap between the faith and LGBTQ communities should have spurred a chorus of national applause from a divided citizenry in need of a legislative salve. Instead, polarized camps on both the left and right ran to their megaphones to bag Fairness For All’s bold move as misguided, sanctioning discrimination or an affront to civil rights altogether. This response is a symptom of a new American illness — we are forgetting our foundations of pluralism.

Pluralism, a “society in which members of diverse ethnic, racial, religious, or social groups maintain and develop their traditional culture or special interest within the confines of a common civilization,” is embedded into our civil rights laws. Even though these laws pursue a noble objective—ending discrimination in our country—they still leave space for dissenters. In fact, the most influential civil rights law in American history—the Civil Rights Act of 1964—which bans discrimination on the basis of race, national origin, sex, and religion, includes a number of exemptions. Not only are religious employers permitted to make decisions according to their religious preferences and employ only those of their own religion, but the Civil Rights Act exempts all employers, religious or not, from any nondiscrimination requirement unless they have fifteen or more employees. That means that the Civil Rights Act, in respect of pluralism, preserved social space not just for religious dissenters, but also for all the mom-and-pop shops that might dissent across America. State nondiscrimination laws have followed suit and examples of exemptions abound. Despite these exemptions, the laws have wrought enormous positive social change.

The sharp criticisms of Fairness For All come from polarizing forces that have abandoned pluralism. On the left, the loudest LGBTQ rights organizations firmly oppose almost any religious exemption. Indeed, the Equality Act not only fails to include any exemptions for the faith community, but it affirmatively rips out federal legislation that was passed to mirror the First Amendment’s religious freedom protections. The message this criticism sends is clear: there is no room in our country for religious dissenters.

On the right, some of the loudest organizations oppose protecting, in law, the LGBTQ community altogether. They argue that inserting the terms sexual orientation and gender identity into a statute will undermine freedom and codify radical gender ideology. Their message is also clear: there is no room in our country for sexual or gender dissenters.

Both these polarized positions are wrong — America is big enough for all of us.

Recognition of our pluralistic reality is perhaps Fairness For All’s biggest recommendation. Sure, the details of Fairness For All as currently proposed can, and should, be refined through further dialogue. But currently, Fairness For All is the only federal effort to follow through on late Supreme Court Justice Anthony Kennedy’s plights to end the LGBTQ-faith fracture. As American Unity Fund President Margaret Hoover puts it, Fairness For All “promotes civic pluralism” and “represents the best of our traditions as Americans.”

The broad coalition behind Fairness For All, inspiring in itself, dispels the myth that the faith and LGBTQ communities can’t work together. And if you look, you’ll find these bridge-building efforts engaging communities right and left. Thought leaders from both communities have co-authored volumes, college students have gathered for dialogues, and citizens have come together to learn from one another. These initiatives are evidence that what our country seeks is a peaceable solution — a way we can all live side-by-side—not winner-takes-all campaigns that exclude the LGBTQ community in red states or the faith community in blue states.

In Idaho, similar efforts to find common ground between the faith and LGBTQ communities are underway. While the “Add the Words” bill — a state-level version of the Equality Act — continues to knock at the Legislature’s door to no answer, President Pro Tempore of the Idaho State Senate, Brent Hill, has fostered dialogue on an approach that would grant the LGBTQ community protection from discrimination in housing, employment, public accommodations, and education, all while preserving religious freedom. Among other community leaders, Hill will join in a public discussion on these issues at the Interfaith & LGBT Summit on Religious Liberty and Public Accommodations in January.

If you, too, find yourself looking for a ceasefire between what appears to be two warring camps, I invite you to the middle — where the criticism is the greatest, but the real peacemaking is taking place. It is there, at the center of pluralism, that you’ll find the most sophisticated thinkers and, more importantly, an empathy that heals.

Tanner Bean is an attorney at Fabian VanCott, the founder of the Idaho Interfaith & LGBT Summit on Religious Liberty and Nondiscrimination, and a former fellow of the Fairness for All Initiative. His views here are expressed in his personal capacity.