Learning From History: How Congress Can Protect Both Rights and Beliefs

by Don Bonker in "Real Clear Religion"

Back in 1984, I received an unexpected call from Senator Mark Hatfield (R-OR), a highly regarded Republican who chaired the powerful Senate Appropriations Committee. I wondered, why would he call a young Democrat who had no significant position and little influence in the halls of Congress?

He asked if I would introduce legislation on the House side that he was sponsoring and pledged to send some background material. I quickly responded, “Mark, if it is something you want, I’d be glad to do it,” with little clue of its content. The next day I learned that the so-called Equal Access Act (EAA) was about students having the right to hold noncurriculum religious meetings in high schools.

I discussed with my chief of staff, Mark Murray, who reported back that the senator was struggling to get a Democrat to sponsor his bill in the House. This was not easy given that evangelical Christians had rallied their base about religious freedom in public schools that put school officials in a bind: if they allowed students to form small prayer groups and Bible classes, they would likely face lawsuits based on the separation of church and state clause in the U.S. Constitution.

Murray told me, “Don, this bill is going to the House Education Committee. As you know, it is dominated by the most liberal Democrats who are closely aligned with the ACLU and others who will oppose the EAA. Believe me, it will be dead upon arrival.”

Obviously, it would be controversial and politically risky for me, a Democrat, to be the principal sponsor. “OK, I understand. But I respect Sen. Hatfield and will do my best.”

A week later I got word that the committee chairman, Representative Carl Perkins, wanted to see me, so I rushed over to his office in the Rayburn building and was greeted with a robust handshake. He did not waste time and said, “I like your bill and we’ll get it out of my committee and onto the House floor. Now let’s go over and see Tip O’Neill (the Speaker at the time) and put him on the alert so we can get floor action soon.”

The bill got priority treatment, but it proved to be an arduous task, even for Chairman Perkins. Multiple amendments were offered, including a provision that prohibited teachers and school officials from being involved, and another that disallowed outside persons to direct, conduct, control, or regularly attend student gatherings.

My staff faithfully kept me informed but shared they were puzzled that the most respected, liberal Democrat, Rep. Barney Frank, appeared to be supportive. The Equal Access Act got out of the Committee and onto the House floor, where it was approved 337-77. It passed the Senate by an equally large margin, 88-11. It was signed into law by President Ronald Reagan on August 11, 1984. Predictable lawsuits led to a Supreme Court ruling in 1990 that ordered schools to allow religious student groups to meet.

Several years after I left Congress, NBC’s Today Show reported that the Gay-Straight Alliance (GSA) was using the EAA to legitimize the privilege and the right to assemble on high school campuses. As the law was evolving, it was clear that high schools would have to extend similar rights and protections to GSAs or ban all non-curricular clubs (including faith-based) from noncurriculum activities on school property. As I viewed this news report, I realized why Rep. Barney Frank, who came out as gay in 1987, may have had hope for the future as the Equal Access Act was going forward.

That was 36 years ago. Today Congress faces a similar but much tougher challenge. It’s all about preserving the First Amendment’s Establishment Clause while fulfilling one of the fundamental rights of any democracy: to end discrimination in all forms. While the Constitution is about church and state, these days, the conversation is more about religion and politics, making it even more challenging. Partisan polarization has pushed both parties to embrace extreme positions, especially on social issues, such as President Trump’s proposal to allow teaching on the Bible in schools.

One issue that is highly politicized is how best to protect our religious freedom while guaranteeing civil rights protections to the LGBTQ community. On the left is the Equality Act, championed by LGBTQ advocates and passed on the House floor in 2019. This was a partisan vote with no expectation it will even be considered by the GOP-controlled U.S. Senate. At the other end is the First Amendment Defense Act, supported by Christian conservatives, that was previously introduced in both the Senate and House of Representatives, but unlikely to be taken up in either chamber.

There is a much better option. Introduced in December 2019 by Representative Chris Stewart (R-Utah), the Fairness for All Act, an astutely drafted bill that addresses the concerns and achieves the intended objectives among all the stakeholders. This solution deftly concedes the demands of both sides without infringing the rights of either, though the ACLU argues that the measure weakens LGBTQ protections.

The 116th Congress can take a sharp turn to the left or the right that leads to nowhere – or pass a centrist bill that will result in a landmark accomplishment. The art of legislating is to find common ground, address the concerns, strike a balance, and get enacted.

I am certain if Senator Mark Hatfield and Representative Barney Frank were still serving in the U.S. Congress, the Fairness for all Act would become law.

Don Bonker served in the U.S. House of Representatives from 1975-1989 representing Washington State’s 3rd Congressional District. He is the author of the forthcoming book, “A Higher Calling: Faith and Politics in the Public Square.”

This article originally appeared in Real Clear Religion.