January 29, 2021
In addition to the president’s opportunities to protect religious freedom within the work of the executive branch, he will have an important role in influencing legislation that has serious implications for religious exercise.
Currently there are three bills pending in Congress. Each represents a different approach to accommodating the needs of religious organizations and people of faith and to adding sexual orientation and gender identity to federal anti-discrimination law.
President Joe Biden has expressed support for the Equality Act. This bill would add to all federal anti-discrimination laws – governing housing, employment, education, public accommodations, etc. – the classes of sexual orientation and gender identity.
It also would have a significant, and negative, implication for religious organizations and people of faith. The bill expressly limits the application of the federal Religious Freedom Restoration Act (RFRA), which requires the federal government to show it has an overriding need to create burdens on the exercise of religious belief. Thus, if a discrimination complaint were brought against a religiously motivated school or nonprofit, the school could not invoke the religious freedom protection in current law that would shield it in any other context.
This is particularly troubling for religious groups, since the bill specifically labels the belief that “marriage should only be between heterosexual couples” as a “sex stereotype” and says that acting on that belief – which is a widely-shared tenet of major world religions – is a form of discrimination.
Do No Harm Act
Another federal bill would similarly limit the Religious Freedom Restoration Act. The Do No Harm Act, which was introduced by now-vice president Kamala Harris, would preclude people of faith or religious groups from seeking the protection of RFRA in a wide variety of contexts. In practice, this would mean gutting RFRA.
For example, the “harm” mentioned in the bill’s title includes “dignitary harm” which would allow opponents of a religious practice to argue that religious practices should be limited by the government when those opponents feel hurt or offended by the practice.
The bill would also preclude religious groups or people of faith from seeking religious freedom protection if they are denied government contracts. Most ominously, the bill would prevent religious freedom claims related to “access to, information about, a referral for, provision of, or coverage for, any health care item or service.” Thus religiously motivated health care facilities could not seek protection if asked to participate in abortions or elective sterilization. Religious pharmacists could not seek protection if they decide to refer a patient to a different pharmacist comfortable selling abortion-inducing drugs. The Little Sisters of the Poor could not be protected from having to offer contraceptives to their employees even though doing so violates their beliefs.
Fairness for All Act
Like the Equality Act, the Fairness for All Act would add sexual orientation and gender identity to the categories included in federal discrimination law and, in fact, would increase the scope of the provisions regulating public accommodations.
In contrast to the Equality Act, however, this bill would include important religious exemptions to limit the impact of the changes to religious groups and people of faith who are compelled by their beliefs to uphold the ideals of traditional sexual morality.
Importantly, the Fairness for All Act would also extend important protections to religious groups and people of faith:
- It would allow religious charities to receive federal assistance on the same basis as other nonprofits regardless of their beliefs, teachings, standards, or use of religious symbols.
- It would allow religious groups to receive needed federal infrastructure aid (like safety upgrades for religious schools).
- It would require employers to make a more significant effort to accommodate employee’s religious practice, including in administering leave policies.
- It would provide that if an employer allows employees to talk about opinions and beliefs, the employer can’t punish one type of expression.
- It would expand the current religious exemption in the context of housing discrimination to clarify that religious groups can enforce religious standards on their property.
- It would prevent the government from punishing: (a) religious educational institutions by denying them accreditation, or (b) people of faith by denying them professional licenses or public office.
- It would prohibit religious discrimination in granting nonprofit status.
The president’s expressed support for the Equality Act probably means it will be the one to receive priority attention by Congress. Since the partisan split of the Senate is so narrow, senators who are concerned about protecting religious freedom could very well insist that the Equality Act be amended to include some of the accommodations in the Fairness for All Act.
Support for this balanced approach would send an important message from the president that efforts to provide protection from discrimination need not include limitations on religious exercise, but should rather accommodate both interests.
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.