Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
The Equality Act, LGBT Rights, and Religious Freedom
After the Supreme Court’s Obergefell v. Hodges decision which legalized same-sex marriage, public discourse has shifted to addressing discrimination against LGBT individuals in areas such as employment, housing, and credit opportunity. This has often resulted in designating such individuals as a new protected class in sexual orientation and gender identity (SOGI) laws. When crafted well, SOGI statutes have the potential to protect LGBT individuals from discrimination and accommodate the religious freedom of faith-based organizations (FBOs).
While sexual orientation and gender identity discrimination may not have the same history of discrimination based on race and sex, it is not any less important to challenge mistreatment. On July 23, 2015, Congress introduced the Equality Act, a bill which “amends the Civil Rights Act of 1964 to include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation.” As a piece of federal legislation that could become a model for states and localities, the Equality Act warrants our careful consideration; the debate over SOGI legislation has important consequences for the freedom of faith-based organizations in how they staff and how they provide services.
The White House Response
The Equality Act has a broad scope. It would forbid in federal law sexual orientation and gender identity discrimination in private employment, housing, public accommodations (a category that would be expanded), public education, federal grants and contracts, consumer credit, and jury selection. Introduced shortly after the US Supreme Court’s same-sex marriage decision, the bill quickly gained many Democratic co-sponsors and the approval of many progressive organizations. It has been endorsed by Democratic presidential candidates and by Vice President Joe Biden.
After a lengthy review, the White House gave qualified approval on November 10, 2015: “Upon that review it is now clear that the administration strongly supports the Equality Act… We look forward to working with Congress to ensure that the legislative process produces a result that balances both the bedrock principles of civil rights…with the religious liberty that we hold dear in this country.”
So how should faith-based organizations and religious leaders interpret and respond to the administration’s statement? Cautious optimism and careful engagement may be the best approach.
Those concerned about the negative impact of the Equality Act on the exercise of religion in the domain of human sexuality can be glad that the administration took a long and careful look at the bill. Also, the actual language the administration used to express support for the Equality Act gives reason for hope. After endorsing the legislation, White House press secretary Joshua Earnest stated that the administration anticipated collaborating with Congress to make sure “the legislative process produces a result that balances” LGBT and religious rights.
One interpretation of this is that the Obama administration is not, in fact, giving an unqualified, unconditional endorsement of the Equality Act in its current state, but is committed to the principles of the act and to moving the process forward to reach a favorable, balanced final piece of legislation. Despite the administration’s use of the term “endorse” to express its explicit support of the proposed legislation, Earnest’s words leave the door open for possible changes during the balancing process between LGBT rights and religious freedom. If the administration had believed that the bill in its current form was satisfactory, such statements about participating further in the lawmaking process to guarantee a balanced result would be unnecessary.
Implications of SOGI Legislation for Federal Funding and FBOs
From the Clinton to Obama administrations, there exists a strong tradition of faith-based organizations partnering with the government to provide social services. Charitable Choice and the Faith-Based Initiative have allowed FBOs to compete for government funding on equal footing with secular organizations.
Supporters of faith-based organizations should hope that the administration is considering how to bring together its support for expanded federal LGBT protections with its policies in favor of ensuring a welcoming environment for faith-based organizations’ participation in federal programs.
Since 2008, President Obama has maintained the federal faith-based initiative and its work to create a level playing field in federal funding programs and unfunded partnerships so that faith-based organizations have the same opportunity to participate as secular organizations do. The administration has also resisted outside pressure to limit the exemption in federal law that permits religious organizations to consider religion when making staffing decisions.
More recently, as noted in a blog post from the White House Office of Faith-Based and Neighborhood Partnerships, the administration has maintained the equal treatment approach as it has proposed slight changes to the federal regulations concerning government partnerships with faith-based organizations:
[T]he Obama Administration is taking an important step toward common-ground reforms that strengthen the partnerships the federal government forms with faith-based and community organizations for the purpose of serving people in need…[These reforms] assure religious providers of their equal ability to compete for government funds and of continuing protections for their religious identity like the ability of providers to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents.
The Equality Act, as introduced without modifications, would undermine the capacity of the White House Office of Faith-Based and Neighborhood Partnerships to create a hospitable environment in federal funding for faith-based organizations. For example, it would bar from federal grants and contracts any organization deemed discriminatory to LGBT individuals because of its religious conduct standards for employees, even though it would serve everyone eligible for the federally funded services. This provision, without a protection to preserve the capacity of faith-based organizations to partner with federal government in government grants and contracts, would be detrimental to the religious freedom of faith-based organizations. Moreover, if the Equality Act became federal law without significant changes to better protect religious freedom, it would most likely serve as a model for state and local legislation, which could further limit the freedom of FBOs to partner with state and local governments.
A Theology of Mutual Respect
Americans who are certain that LGBT rights deserve the same protections given to people of different races and ethnicities should not then devalue the fundamental rights of religious exercise, both individual and institutional. Historically, the right to practice religion is first among our “bedrock principles of civil rights.” We do this individually and institutionally, privately and publicly, in ways that are inherently religious, like prayer, and in ways that are outwardly focused on serving others, like feeding the homeless.
Civil rights and religious liberty are not two opposing ideals to put into rhetorical contrast. Our civil rights history cannot be understood without acknowledging how religion motivated people to seek justice. The administration would have done a great service for the nation by using language that acknowledges religious freedom as a key civil right.
There is no perfect legislative way to advance LGBT rights without some limitations on other rights, including religious freedom. But it is possible to advance the former without suppressing the latter. Mutual respect between people who differ, and a “curtain,” not a wall, between government and religious institutions were the prescriptions for social harmony put forward by LDS Church Elder Dallin H. Oaks in an October 20, 2015, speech. He said,
Mutual respect requires that people and institutions of faith and those that are secular acknowledge that others are different, without engaging in culture wars. Faith-based service organizations have the capacity to create an environment for human flourishing. For that, there needs to be a proper relationship between church and state.
Often that relationship is described as a “wall of separation.” Oaks proposed an alternative picture: “The more appropriate metaphor to express that relation—reinforced by government decisions of the Supreme Court—is a curtain that defines boundaries but is not a barrier to the passage of light and love and mutual support from one side to another.” Such a curtain, Oaks suggested, creates the space for a “fairness for all” approach when freedoms seemingly clash.
He used as his example the Mormon church’s championing of state legislation in Utah earlier in 2015 that bans discrimination on the basis of sexual orientation and gender identity in housing and employment while creating robust religious freedom protections for faith-based organizations. The legislation advances both LGBT and religious rights, an outcome unlikely if such decisions are made by judges rather than legislators.
While not a perfect solution, LGBT people gained needed protection from discrimination, and religious organizations were assured protections that enable them to maintain their beliefs and practices—their freedom to serve as God has called them to serve. Our president and Congress ought to be aiming for an outcome at least this good.
FBOs Must Come to the Table
People of faith and faith-based organizations should recognize that blindly dismissing sexual orientation and gender identity legislation is not a wise long-term move toward the goal of religious freedom. Instead, faith-based organizations should care about efforts to include strong religious protection language in sexual orientation and gender identity legislation. Diversity is inherent to human dignity and faith-based organizations should respect differences in community, even when there are important disagreements. Likewise, LGBT advocates should respect the diversity of faiths and traditions that make up the many civil society institutions in America today.
Douglas Laycock, a religious freedom scholar at the University of Virginia, supports SOGI laws and religious organizations’ right to serve according to their religious precepts. He elaborates,
The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity… Both same-sex couples and religious dissenters also seek to live out their identities in ways that are public in the sense of being socially apparent and socially acknowledged.
Policy makers need help from faith-based organizations to see the connection between the essential services the organizations provide and the religious precepts that motivate that service. Others may need help understanding that religious protections in SOGI laws have the aim of preserving the historic freedom for organizations to act on the core tenets of their faith-- not rejecting services to people because of their sexual orientation or gender identity, but having the freedom to provide services in a distinctively faith-shaped manner.
A historic legal tradition protects the freedom of faith-based organizations to cultivate a distinctly religious character through employment, standards based on sacred texts, and services. However, with increased misunderstanding of their value, faith-based organizations must actively demonstrate their societal contributions and advocate for public policies that make them possible.
FBOs must also take advantage of opportunities to be engaged in the crafting of SOGI legislation, as SOGI laws without religious protections have the ability to endanger some of the practices that distinguish FBOs. This makes it all the more important to partner with the LGBT community (when practicable) and other organizations passionate about religious freedom. Together, we can promote an atmosphere that will preserve the unique character of organizations of all faiths and allow different groups to live out their identities in society.
Questions for Reflection:
- Many in this conversation on both sides tend to be overly critical of the other side’s actions and intentions. How could recognizing the positive attributes of those with whom we disagree help this conversation move forward? For example, why is it important for conservative Christians to recognize the positive actions of the Obama administration with respect to advancing religious freedom? Likewise, why is it important for Christians who support same-sex marriage and/or the expansion of LGBT rights to recognize the positive actions that religious organizations who support traditional marriage are taking to extend love and justice to LGBT individuals, in addition to critiquing them when they fall short?
- How can you help this conversation move forward? What roadblocks do you see for conservative Christians to support legislation protecting LGBT people from harmful discrimination? What roadblocks do you see for LGBT rights supporters to work with conservative communities of faith to create properly tailored protections for religious organizations to, specifically, be able to still select employees based on faith? What creative solutions can you think of to help bridge the ever-widening gap?
- Chelsea Langston is the Director of Equipping and Membership at the Institutional Religious Freedom Alliance, a division of the Center for Public Justice. She holds a JD from the University of Michigan and is a licensed attorney by the State Bar of Michigan.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”