Religious Freedom at Stake in November Election, Equality Act Critics Say

If passed by the next Congress, the Democrat-backed Equality Act would limit religious-beliefs defenses in sexual-orientation and gender-identity lawsuits and might force doctors and hospitals to provide abortions.

The U.S. Capitol Building is seen on Sept. 27 in Washington.
The U.S. Capitol Building is seen on Sept. 27 in Washington. (photo: Anna Moneymaker / Getty Images)

Religious freedom doesn’t make any list of top voting issues, but some observers say it is indirectly on the ballot in the November general elections.

At stake is control of Congress, where Democrats hold a narrow majority in the U.S. House of Representatives and a bare working majority in the U.S. Senate, courtesy of Vice President Kamala Harris’ tie-breaking vote. This control of Congress, in turn, has substantial religious-freedom implications in the context of the hot-button current issues of gender ideology and abortion.

Particularly at stake is the Equality Act bill, which all Democrats and some Republicans in Congress support. It would add “sexual orientation” and “gender identity” as categories in federal civil-rights law — and specifically limit religious-freedom defenses against it. While the Equality Act was passed in 2021 by the Democrat-controlled House, it remains stalled in the Senate. 

Supporters of the measure say it would provide deserved and needed protections for homosexuals and transgender people in employment, education, housing and health care, among other things.

President Joe Biden, who is hoping to sign the bill, called it “a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all” when it was introduced in February 2021.

“Full equality has been denied to LGBTQ+ Americans and their families for far too long,” Biden said at the time. He reiterated his support for it this year in March and in June.

Opponents say the bill would hinder the ability of religious institutions to run their organizations in accord with their faith.

Thomas Farr, president of the Religious Freedom Institute, told the Register that the Equality Act and the Respect for Marriage Act, a pending bill that would codify same-sex civil marriage in federal law, would invite what he called “ruinous lawsuits” against religious groups.

“The role of free exercise for all our religious communities is today under siege,” Farr said by email. “Those who support abortion, same-sex marriage, and the right to change gender do not do so merely as the exercise of a ‘right.’ They see their views as public goods against which there can be no legitimate opposition, and they are prepared to use the state to silence their opponents.”


What the Equality Act Would Do

If the Equality Act becomes law, religious-freedom objections to it could not rely on the Religious Freedom Restoration Act of 1993, which says that government “shall not substantially burden a person’s exercise of religion” unless it is “in furtherance of a compelling governmental interest,” because the Equality Act bill prohibits using that statute as a basis for “a defense claim” against it.

The Equality Act bill also:

  •  would make “explicit” that “existing federal statutes prohibiting sex discrimination in employment (including in access to benefits), health care, housing, education, credit, and jury service also prohibit sexual orientation and gender identity discrimination”;
  •  describes so-called conversion therapy — in which a psychotherapist guides a person with same-sex attraction or gender dysphoria to try to overcome such feelings — as “discredited” and “a form of discrimination that harms LGBTQ people”; and
  •  would open single-sex facilities nationwide to transgender people on the basis of the gender they identify with (“an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity”).

If the legislation is passed, some critics envision the end of single-sex dormitories at religious colleges that accept federal funding because biological males who identify as women would have a right to live in a women’s dorm and vice versa under the act.

Some say the bill might also be used to require doctors and hospitals to provide abortions, even if they object to abortion on moral grounds. The bill never mentions the word “abortion,” but it includes among its rules the following: “pregnancy, childbirth, or a related medical condition shall not receive less favorable treatment than other physical conditions.”

Federal appeals courts have held that the term “related medical conditions,” which appears in the Pregnancy Discrimination Act of 1978, includes abortion.

The Equality Act bill passed the House in February 2021, 224-206. All Democrats voted for the bill (221 at the time), but among Republicans only three voted for it.

The U.S. Senate hasn’t voted on it because that requires 60 votes to cut off debate, and the supporters of the bill haven’t yet found 10 Republicans to join the 48 Democrats and two Independents who caucus with the Democrats.

Democrats have identified four Republicans who are thought to be “Yes” votes for the pro-same-sex-civil-marriage Respect for Marriage Act bill: Susan Collins of Maine, Lisa Murkowski of Alaska, Rob Portman of Ohio and Thom Tillis of North Carolina.

It’s less clear how many Republicans might support the Equality Act. But some opponents of the Equality Act fear that there may already be 10 Republicans ready to support the bill, except they don’t want to do so publicly until after the election for fear of offending the party’s base.


Competing Arguments

Supporters of the Equality Act claim it doesn’t infringe on religious freedom but instead guarantees rights to people who should have had them by now.

“The First Amendment is not being repealed by the Equality Act. The Equality Act prevents discrimination on the basis of sex, gender identity or sexual orientation. It would extend protection to groups who have been maligned and marginalized. Objectively, that is a good thing,” said Andrew Seidel, vice president for strategic communications for Americans United for the Separation of Church and State and author of American Crusade:  How the Supreme Court Is Weaponizing Religious Freedom (2022).

Seidel, a constitutional lawyer, said objectors to legislation such as the Equality Act have “less a concern over true religious freedom and more of a fear that their religious privilege is being eroded.”

“Your right to exercise your religion ends where the rights of other people begin. So religion is not a license to harm other people or infringe on them in any way,” Seidel said in a telephone interview with the Register. “Religious freedom has become a weapon of Christian privilege.”

Opponents of the Equality Act, including the U.S. Conference of Catholic Bishops, counter that it very explicitly transgresses against religious beliefs. The bill “discriminates against people of faith precisely because of those beliefs,” a USCCB statement cites on a webpage that highlights the problems associated with the bill.

Given that Catholics can’t participate in abortion (which the Church teaches to be unjustified homicide) or encourage homosexuality or trangenderism (which the Church teaches to be fundamentally at odds with God’s plan for human sexuality) and still follow Church teaching, the bishops’ conference’s document says the Equality Act thereby jeopardizes Catholic schools, hospitals, shelters, food banks and charities.

However, the Equality Act reflects a popular trend among Americans. Supporters of the Equality Act frame opposition to it as bigotry, and there is some evidence that argument is working. An analysis of polls published by Gallup in March 2021 concluded: “Public opinion data suggest that the majority of Americans support the bill, or at least the idea behind it.”


Explaining What’s at Stake

A Catholic Democratic opponent of the Equality Act told the Register that marshalling effective opposition to it and comparable legislation requires explaining to people the nature of religious freedom.

“No one in politics really has a clear concept — and the public doesn’t have a clear concept — about what religious freedom really means,” Dan Lipinski, who served in the House of Representative from 2005 to 2021, told the Register by telephone. “The narrowing of the definition of religious freedom is very dangerous in our country. Unfortunately, a lot of Catholics do not understand this. It is especially important for Catholics because the Catholic religion is about more than our personal relationship with God. We have a very rich social teaching about how we are to care for others.”

Educating, providing health care, helping the poor, and promoting families aren’t just activities of the Church, he said, but vital expressions of the faith.

“And when a very narrow definition of religious freedom is promoted,” Lipinski said, “then that starts impinging on the real guarantee in the Constitution of the free exercise of religion.”

This story was updated after posting.

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