By Brad Polumbo in The Washington Examiner
In something of a plot twist, it’s a conservative congressman restoring sanity to the debate over gay rights and religious liberty. For too long, militant left-wing activists have sought to crush religious Americans, while many social conservatives have refused to budge an inch on legal protections for gay and transgender people. Thankfully, a sane coalition is finally entering the conversation.
With the backing of various religious and conservative groups, including the Church of Jesus Christ of Latter-Day Saints, Republican Rep. Chris Stewart of Utah, just introduced the “Fairness for All Act,” a bill that would finally update our federal anti-discrimination laws so they strike the proper balance between LGBT rights and religious freedom. Right now, federal anti-discrimination laws do not protect people on the basis of sexual orientation nor gender identity.
The update to federal anti-discrimination law passed by House Democrats, the Equality Act, tramples over the First Amendment and would crush religious liberty. The Utah Republican’s new compromise bill seeks to finally bridge this divide, and I believe it does so masterfully.
Stewart’s proposed “Fairness for All” bill updates the Civil Rights Act of 1964 and other federal laws to explicitly prohibit discrimination based on gender identity or sexual orientation in employment, housing, public accommodations, credit, federally funded services, refugee resettlement, and jury service. At the same time, the bill embraces the principles of a pluralistic society, and purposefully exempts a variety of religious institutions and otherwise protects the rights of religious individuals to live in accordance with their faith.
First, the bill provides a clear-cut exemption from new employment rules for churches, religious schools, and religious nonprofit organizations. This balance in employment anti-discrimination laws makes perfect sense: We certainly shouldn’t force a Catholic charity or school to employ people, such as myself, who openly live against the biblical teachings their organization is founded on. But at the same time, there is no reason our laws allow secular corporations such as McDonald’s to arbitrarily fire someone because of whom they love.
This proposed balance doesn’t exist under current federal law or under the proposed Equality Act, yet it’s exactly what FFA would create. Additionally, the legislation strikes an important compromise with how it defines “public accommodation.”
FFA would allow no discrimination against gay and transgender people in restaurants, lodging, entertainment venues, places of recreation, transportation providers, medical services, financial services, funeral homes and cemeteries, and medium-to-large retailers. This is well-warranted: No one deserves to be turned away from public, secular businesses because of who they are or whom they love. And large secular businesses open to the public have no legitimate claim for an exemption.
However, this definition of “public accommodation” is narrowly tailored. It would not include churches, religious schools, religious funeral homes, and faith-based cemeteries. Additionally, the public accommodation anti-discrimination rules wouldn’t apply to small businesses, such as the religious cake baker Jack Phillips, because any retailer with under 15 employees is exempt from the provision. Phillips, of course, never had a problem serving a gay clientele, but this provision offers a further guarantee that this law won’t be used to harass small businesses.
The law also protects religious medical professionals who might have religious objections to certain medical procedures, while also guaranteeing fair and equal access to medical services. Doctors would not be permitted to turn away a gay or transgender person on the basis of their identity for regular medical services under this law — nor should they be allowed to. But a Christian doctor still wouldn’t be forced to perform a sex-change or provide treatments related to transitioning. This is an eminently reasonable compromise.
The legislation takes a similarly reasonable approach to the issue of religious adoption agencies that refuse to place children with same-sex prospective parents. Such agencies wouldn’t be shut down by the state or forced to violate their conscience. Rather, states would be required to create an additional, decentralized adoption system where taxpayer money goes to the prospective parents in the form of a certificate, not adoption agencies. These parents would then go to a diverse variety of adoption agencies, including religious providers with traditional faith-based restrictions on where they place children. However, gay and transgender parents would still have ample options to adopt, and FFA requires agencies that do directly contract with the state to not discriminate against gay or transgender parents and youth in their care.
Additionally, FFA explicitly combats the anti-religious sentiment that prevails on the Left and enshrines further protections for religious freedom into law.
Under the legislation, federal tax-exempt status cannot be denied due to religious beliefs or practices regarding marriage or sexuality. This would prevent the stripping of tax-exempt status from traditional religious institutions and many other intolerant policies espoused by progressives such as Beto O’Rourke. So, too, the law includes a variety of provisions prohibiting the government from otherwise targeting or punishing religious individuals for taking advantage of FFA religious exceptions.
For some critics, this still isn’t enough. Groups such as the socially conservative Heritage Foundation and Alliance Defending Freedom have come out forcefully against the bill. Perhaps FFA’s most articulate critic, Heritage’s Ryan T. Anderson wrote for the Daily Signal that the bill’s “protections for religious liberty come at the high cost of enshrining a misguided sexual and gender ideology into federal law.” He argues we should protect “everyone’s freedom to engage in legitimate actions based on the conviction that we are created male and female, and that male and female are created for each other.”
But ultimately, compassion demands that even religious Americans make their peace with some form of meaningful legal protections for gay and transgender people. And if social conservatives don’t embrace compromise LGBT rights legislation in good faith, they’ll surely live to regret it — that is, when they’re stuck living under the crushing Equality Act a decade from now.