November 13, 2020
Interspersed among the Saturday morning cartoons of childhood during the 1970s and early ’80s were the “Schoolhouse Rock!” shorts. The impetus for the series was parental inspiration – specifically an advertising executive’s decision to hire Bob Dorough write a song that would help his son learn the multiplication tables. (That song was “Three is a Magic Number.”)
“Three Ring Government” debuted in 1979 as part of the America Rock series. Perhaps the episode’s comparison of the branches of government to a circus was meant as political commentary but it also made it easy for people of a certain age to remember the executive, legislative, and judicial branches. Putting aside pedantic quibbles with the lyrics, the key insight is the importance of checks and balances.
That important feature of government could become a key to protecting religious freedom after the 2020 election. How so?
Presumptive president-elect Joe Biden has expressed an intention to prioritize passage of the Equality Act during the first 100 days of his administration. The main element of the act – adding the categories of sexual orientation and gender identity to federal discrimination law – has already become part of federal law through the Supreme Court’s interpretation of a 1964 statute. The bill was approved by the House of Representatives but has stalled in the Senate.
The bill also contains provisions that would dramatically impact religious freedom. Primarily this would happen by creating possibilities for conflicts between mandates from the new discrimination laws (in areas like higher education, health care and social services) and the missions of religious schools, charities and hospitals.
For instance, could religious schools continue to ask employees and students to support, in word and action, the mission of the university in areas like marriage, family and sexual morality? Could religious adoption agencies lose their ability to place children consistent with their faith’s teachings?
Typically, in legislation of this type there would be exemptions for religious practices. The Equality Act takes a different approach.
First, it significantly limits the key federal protection of religious freedom, the Religious Freedom Restoration Act: “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”
Second, even though the bill expands the reach of the 1964 Civil Rights Act, it does not provide any new religious accommodations. The exemptions in the old law were appropriately narrow, since there are likely to be few conflicts between religious teachings and the need to provide protections against race or gender discrimination. Since marriage, family and sexuality are central to religious teachings, including the new categories of sexual orientation and gender identity is likely to be far more significant for religious groups who will need new appropriate accommodations.
Unfortunately, President-elect Joe Biden has expressed support for this exclusionary approach:
Trump has deliberately tried to gut protections for the LGBTQ+ community by creating broad religious exemptions to existing nondiscrimination laws and policies that allow businesses, medical providers, and adoption agencies to discriminate against LGBTQ+ people. We need to root out discrimination in our laws, institutions, and public spaces. Religion should not be used as a license to discriminate, and as president I will oppose legislation to deny LGBTQ+ equal treatment in public places.
This is where the legislative branch can make a difference. Instead of embracing this one-sided approach, Congress could push for an approach to legislation that allows religious groups to continue their work while also protecting against unjust discrimination.
This would be in line with what Yuval Levin of the American Enterprise Institute noted in a Sutherland Institute webinar earlier this week: “Part of what we need in our politics is a recovery of the sense that our institutions exist to advance compromise – especially Congress. Congress is there to compel accommodation between different views, different factions in our society.”
The good news is that it appears the Senate will either be controlled by the other party than the president’s or that the balance of partisan control will be so narrow as to preclude any party from pushing through its priorities without needing to negotiate.
So, negotiation over legislation on discrimination should focus on reasonable accommodations. Most obviously, this involves abandoning a rollback of the Religious Freedom Restoration Act. It would also include providing reasonable accommodations for religious schools and charities to provide critical services in accordance with their faith commitments. The ability of people of faith to live consistent with their beliefs should also be protected. None of this has to limit the protection of other groups from discrimination, as the experience of Utah shows.
The basic aim of the Equality Act would be to add two new categories – sexual orientation and gender identity – to the protections of these earlier laws. Isn’t this already the law, though? The answer is … sort of.
Free discussion is key to a functioning republic. And free discussion is often enabled and disseminated through media, so long as freedom of the press is alive and well.
We believe this is an ideal approach to implementing these important measures as it would do so without unnecessarily dictating specifics to the Board of Higher Education or the state’s institutions of higher education.