The Equality Act’s Assault on Religious Liberty

Yesterday, the U.S. House of Representatives passed HR5, the so-called “Equality Act,” to amend various provisions of the Civil Rights Act of 1964. If it passes the Senate and is signed into law by the president, the bill will cause incalculable damage to our society—with a particular assault on women and religious believers. The bill is expressly designed to impose a controversial sexual-ideological scheme on the American public, and to forbid any religiously-based objections to that agenda.

The prologue to the bill says its purpose is to “prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.” But as the rest of the bill makes clear, this means prohibiting all disagreement and outlawing biological distinctions. And the “other purposes” include restricting the free exercise of religion. (As I highlighted in a previous column, the bill will also continue to normalize abortion as a medical procedure like any other, and compel physicians and other healthcare providers to participate in abortion despite their moral objections.)

Three key provisions of the bill form its essential structure: redefinition of the term “sex” to deny biology; the expansion of the term “public accommodation” to include any place where people gather outside a private residence; and explicit denial of religious freedom and religious-liberty protections.

The first, most fundamental provision proposes changing the 1964 Act by replacing the term “sex” with “sex (including sexual orientation and gender identity).” Groups supporting the imposition of LGBTQ+ ideology on the law have been attempting to persuade federal courts to define sex this way for many years. And they scored a historical victory in 2020 in Bostock v. Clayton County, in which the Supreme Court held that Title VII of the ’64 Act includes gender identity and sexual orientation in its definition of “sex.” Even some supporters of this ruling, however, recognize the sophistry of Justice Gorsuch’s majority opinion, and thus its vulnerability in future cases under the current structure of the Court.

HR5, if passed, will resolve that vulnerability. Or will it? One of the most vexing aspects of the ’64 Act is that, while its purpose was principally to outlaw discrimination because of sex, “sex” is not defined in the Act. While HR5 now defines sex as “including sexual orientation and gender identity,” it defines neither. In mainstream LGBTQ+ ideology, “gender identity” is “fluid.” Thus, I might identify as male one day and female the next—or according to which restroom line is longer at the ballpark, theater, or parish fish fry. 

For HR5 expands the ’64 Act’s definition of “public accommodation” to include any “place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display”; and “any establishment that provides a good, service, or program, including a . . . food bank, service or care center, [or] shelter.” This language means that parishes, parochial schools, and other religiously affiliated institutions could be sued under the bill. In fact, it is difficult to conceive of any place or program outside a private residence that is not included in this definition.

For example, any Catholic Youth Organization sporting event is a place of recreation and exercise. Every Christmas nativity scene is a public display. Every pregnancy counseling center is a service or program. Every diocesan-sponsored woman’s shelter and food bank is, well, a shelter and foodbank. If a church, mosque, synagogue—or any affiliated school, recreation center, or food pantry—provides any of these programs or services, it will be compelled to allow biological men, for example, to use the women’s restroom. Sports teams would be compelled to allow boys to use the girls’ locker room. Shelters for abused and battered women would be forced to admit males. And of course, girls would be forced to compete against boys in sporting events. The bill expressly denies any religion-based objection.

The bill’s sponsors, recognizing that it is an infringement on the free exercise of religion, explicitly deny application of the most important statutory security of the free exercise of religion, the Religious Freedom Restoration Act (“RFRA”). The bill specifically provides that RFRA “shall not provide a claim concerning, or a defense to a claim under” HR5. This means two things.

First, if an individual or institution wants to sue a governmental entity to prevent it from enforcing the bill, it may not use RFRA as the authority for its lawsuit. To bring a legal action against any person, one must have statutory or common-law authority under which one prosecutes her claims. As it stands, RFRA provides just such authority. It has been used widely and successfully across the country to protect churches, schools, and other institutions from otherwise generally applicable laws that would force them to violate their religious practice or conscience. Under HR5, this powerful shield against government intrusion on religious liberty would be removed.

Second, if a church, school, or any other place of “public accommodation” is itself sued by an individual or the federal government for violating HR5, it may not use RFRA as a defense against the lawsuit. The very purpose of RFRA is to protect the free exercise of religion from generally applicable laws that unduly burden religious freedom. Without invalidating the law, RFRA is used to fight for exemptions from it. The Equality Act will remove that defense, leaving churches, mosques, synagogues, and virtually any other institution without defense against its imposition of secular ideology.

The Equality Act is the uncompromising legislative imposition of a destructive social ideology. And it is an assault on the free exercise of religion. That is its purpose, and if it becomes law, that will be its effect.

Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology.

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