How to pass the Equality Act in a tied Senate

by Tyler Deaton in "The Hill"

You play the hand you’re dealt. Great advice for poker as well as politics. Democrats should keep it in mind as they take the lead in a tied Senate with Vice President Harris the tie-breaker. While Democratic control opens up a new world of possibilities, a joint, bipartisan effort — with reasonable give-and-take from both sides — remains necessary to pass anything meaningful. This is especially true when it comes to the Equality Act, a bill to protect LGBTQ Americans from discrimination.

For the past several years, I’ve worked with a bipartisan coalition to support LGBTQ civil rights and religious freedom for Americans of all faiths. While we haven’t always agreed on all the details, we have found common ground on two basic principles: No American should lose their home or job simply because they are gay or transgender, and religious freedom should be accommodated whenever reasonably possible.
With Democrats’ stunning upset victories in the Georgia elections, the path is clear for the Senate to consider LGBTQ civil rights legislation. Supporters of the Equality Act can rely on Chuck Schumer to bring the bill to a vote.
But a tied Senate is not the same as a Democratic majority. The filibuster remains in place, and bills like the Equality Act must garner 60 votes to pass. That means every Democrat and at least 10 Republicans are necessary to pass a bill.

As things stand right now, we don’t have 60 votes for the Equality Act. We cannot pass the legislation without winning over Senator Joe Manchin (D-WV) and a fair number of Republicans.

Winning necessary Republican support is possible. We’ve already done some of the hardest work. Multiple Republican senators are publicly on board with the idea that we need to amend the Civil Rights Act to include LGBTQ protections and respond to the recent Supreme Court decision extending workplace and employment non-discriminations protections to LGBTQ workers by codifying federal nondiscrimination protections. However, they cannot support the current draft of the Equality Act without changes.

We’re not talking about partisan extremists. Senators like Lisa Murkowski and Rob Portman, who support the freedom to marry and the general goals of the Equality Act, have not signed onto the Equality Act yet. That tells us something.
The primary complaint against the Equality Act is that it fails to grapple with legitimate concerns about religious freedom. Fair-minded Republicans and Democrats worry that the Equality Act threatens the tax-exempt status and faith standards of religious schools. They’re concerned the act would disqualify mosques and synagogues from partnering with the Department of Homeland Security to guard themselves against violent extremists. They’re concerned the act could dismantle social services across America, because they are provided by religious groups who view marriage as strictly a heterosexual institution. To name just one example: Catholic-affiliated providers are the biggest charitable presence on the U.S. southern border, serving countless gay and transgender migrants, asylees, and refugees. How can it be good for the Equality Act to strip away their federal funding because of honestly held religious beliefs?

Time is a political constraint as we work to resolve these concerns. We have only a brief moment to pass the Equality Act before the 2022 elections could change everything again. Historically, the president’s party loses seats in the midterms, and Republicans have a real shot at taking back one or both chambers of Congress in 2022.

With control of Congress a virtual toss-up by 2022, supporters of the Equality Act need to negotiate a revised bill immediately. We either balance our interests  and achieve a lot, or waste the opportunity of this moment and achieve nothing. Bearing in mind this legislation has languished since 1974, this might be our best and last opportunity to pass some version of the Equality Act for the next decade.

We have an excellent model for balanced legislation. The Fairness For All Act introduced last Congress in the House won support from numerous conservatives and Republicans, as well as conservative faith institutions like The Church of Jesus Christ of Latter-day Saints and the Seventh-day Adventist Church. Some progressives rejected the bill, insisting on a hard-line position. Their stance, untenable when Republicans controlled the Senate, remains untenable in a tied Senate.

Bipartisan agreement is the only way forward when Democrats have the slimmest majority possible. LGBTQ Americans need federal protections now, and people of faith deserve a Civil Rights Act that respects them as well.
The Equality Act can pass in a tied Senate. We just have to be realistic about centrists from both parties who now control the Senate floor. The winning formula will respect religious freedom while winning full freedom for gay and transgender Americans. By revising the Equality Act to reflect this balance, we can send the bill to President Biden’s desk this year.

Tyler Deaton is Senior Advisor to American Unity Fund, a national conservative organization advocating for LGBTQ and religious freedom