Deceptive ‘Equality Act’ Raises Troubling Religious Freedom and Free-Speech Issues By Hans Bader for CNS News
The U.S. House of Representatives passed the deceptively-named “Equality Act” on Friday, largely along party lines. It’s labeled as a “gay rights” or “transgender rights” law. But the Equality Act is so extreme that even many legal commentators who long supported gay marriage have taken issue with it. As John McCormack notes, “UVA law professor Douglas Laycock, who has long supported gay marriage and enacting a federal gay-rights law, says it would ‘crush’ religious dissenters.”
Legal commentator Walter Olson runs what is widely cited as the world’s oldestlegal blog, Overlawyered. He backed the legalization of gay marriage in Maryland, and opposed North Carolina’s “bathroom bill.” He opposes the “proposed Equality Act” because it “would 1) massively expand federal liability in areas unrelated to sex, gender, or orientation; 2) turn 1000s of routine customer gripes into federal public-accommodations cases; 3) squeeze conscience exemptions hard. All are good reasons to oppose.”
These critics of the “Equality Act” are not anti-gay. As McCormack notes:
“Laycock has also been a longtime supporter of enacting a federal gay-rights non-discrimination law, but he doesn’t support the Equality Act, a bill just approved by the House of Representatives that would add ‘sexual orientation’ and ‘gender identity’ to the 1964 Civil Rights Act, because it would ‘crush’ conscientious objectors.
“‘It goes very far to stamp out religious exemptions,’ Laycock tells National Review in an email. ‘It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.’
“While the bill passed the House today and will be bottled up in the Senate, it has close to universal support among Democrats and would very likely become law if Democrats control the White House and both chambers of Congress and abolish the Senate filibuster.”
Republicans currently control the U.S. Senate by a narrow margin. CBS News says that Trump would likely veto the Equality Act if it passed Congress.
The Equality Act doesn’t just add categories like “gender identity” to existing law, or obliterate religious-freedom safeguards. It also fundamentally transforms the meaning of “public accommodation” found in the 1964 Civil Rights Act, and “dramatically expands” its reach. It regulates even the tiniest businesses or non-profits that have no “physical facility or place,” if they provide any “service,” “program,” or “good” (the way many non-profits such as the Boy Scouts do). It also allows the federal government to sue religious schools that don’t receive a nickel in taxpayer money. (Federal education laws like Title IX currently only apply to schools that receive federal funds, or whose students receive federal student loans).