This is part 6 in an ongoing series on advancing religious freedom for all by mitigating conflict between the free exercise of faith and other interests. In part 5, we talked about different ways governments could approach protecting religious freedom. In this part, we will look at some specific examples of divergent approaches.
Religious freedom advocates have been encouraged by recent Supreme Court decisions applying constitutional and statutory religious freedom protections in a range of very specific scenarios. These decisions are important and welcome, but they are stopgap measures.
Some of the most pressing conflicts, like in healthcare, education and discrimination, are likely to keep roiling public policy.
Take the Little Sister of the Poor decision. The court approved a Trump administration regulation that exempted the nuns from providing contraceptive coverage to their employees. That regulation, in turn, reversed an Obama administration regulation that required the coverage. After the Supreme Court ruling, however, Joe Biden criticized the decision and promised to restore the old rule.
So, religious groups and the nuns themselves have no certain guide as to what is required of them in regard to contraceptive coverage. Of course, they can hope for a sympathetic administration but certainly that is not the type of religious freedom protection envisioned by the Framers of the Constitution.
The source for effective and powerful protections for religious freedom is legislation (something that has not been tried much lately). There have been, however, two recent unsuccessful attempts to address religious freedom in legislation, reflecting entirely opposite priorities.
A comparison of these bills illustrates why Congress has made so little progress in creating specific religious freedom protections since it enacted the general principles of the Religious Freedom Restoration Act in 1993.
The first bill is the Equality Act, which has been pending in the Senate since May 2019 and which appears to have no real chance of passage before the 2020 election. It would add the categories of sexual orientation and gender identity to all federal discrimination laws. This would allow LGBT individuals who have been discriminated against in employment, housing, education, or use of some commercial businesses, to sue for relief.
The bill does not stop there, though; it goes on to specifically limit the reach of the federal Religious Freedom Restoration Act so that it cannot be used to protect religious groups or people of faith where there are conflicts between this new nondiscrimination policy and their religious faith, as in use of religious facilities, hiring by religious nonprofits, etc.
First Amendment Defense Act
The second bill is the First Amendment Defense Act (FADA), which was introduced in 2018 but did not get a vote. It focused on religious freedom by singling out certain “sincerely held religious belief[s], or moral conviction[s]” for protection, such as that marriage should be the union of a man and a woman or that “sexual relations outside marriage are improper.”
What the bill did not do is address the concerns of those who fear being fired from their jobs when their employer learns they are in a same-sex marriage.
Clearly, neither of these bills addresses the concerns raised by the two sides that appear to be at odds.
A lesson from Utah
It is not surprising, given the polarized approach exemplified by these bills, that progress in religious freedom protections has been difficult. The perspective that religious freedom must always yield to discrimination claims and the opposing view that religious claims must always trump anti-discrimination policies seem to garner roughly equal support, preventing either from gaining enough consensus to become law.
If a one-sided approach leads to stalemate, a different approach is necessary.
This insight spurred Utah’s Legislature to try something new in 2015.
The Utah legislation (which consisted of two bills) had some features in common with the Equality Act—it added the categories of sexual orientation and gender identity to the state’s laws prohibiting discrimination in housing and employment. It also had some features in common with the First Amendment Defense Act – protecting people from being punished for their religious beliefs about marriage and sexuality in employment and professional licenses or by government penalties.
More, in enacting the LGBT protections, it ensured that religious groups and people of faith were protected in their use of facilities, provision of social services, or in officiating at weddings. At the same time, it ensured parallel protections to those given to people of faith for LGBT people in their workplace speech or comments outside of work hours.
The salient point is that by trying to accommodate a range of interests in the same package of legislation, the Utah effort avoided the polarized approach that characterizes the Equality Act and FADA and, by extension, made less likely the possibility that one “side” would be so disadvantaged that they would reject the legal change completely.
Utah’s pioneering effort has earned attention nationally and is now the basis for an alternative approach to federal legislation, which we will discuss in the next installment.