Amid growing conflict between LGBTQ rights and religious freedom, a new bill aims to chart a path to a more peaceful future.
The Fairness for All Act, which was introduced Dec. 6 in the House of Representatives and sponsored by Rep. Chris Stewart (R-Utah), pairs nondiscrimination protections for gay and transgender Americans with protections for people of faith. It would outlaw discrimination against the LGBTQ community in most areas of public life, while also creating safeguards for a variety of religious organizations and individuals, including marriage counselors, adoption agencies, and schools.
“We want to do the right thing by gay rights, but we think you have to do the right thing by religious freedom, too,” said Stanley Carlson-Thies, who is the founder and senior director of the Institutional Religious Freedom Alliance. He’s part of the diverse coalition of legal experts, religious leaders and LGBTQ civil rights activists that worked on the bill.
The Fairness for All Act will face an uphill battle in Congress, as well as pushback from prominent LGBTQ rights groups and some religious leaders who object to the bill’s approach. But its supporters hope, at the very least, it will contribute to more constructive debates.
What is the Fairness for All Act?
Under the Fairness for All Act, it would be illegal for an employer to fire someone for being gay or a landlord to kick someone out of their apartment for being transgender. But it would also be illegal to revoke a church’s tax-exempt status if the pastor preaches that same-sex marriage is a sin or prevent faith-based organizations from participating in federal funding programs.
The act would add sexual orientation and gender identity-based protections to federal civil rights laws, while also expanding existing religious exemptions to address potential conflicts created by the change.
“We’re trying to avoid a situation in which it’s fundamentally legal to fire people for being gay or transgender and, at the same time, religious people and institutions are in constant fear at their workplace or about accreditation or about a liberal state that’s going to go after them,” said Tim Schultz, who is president of the 1st Amendment Partnership and served as an adviser for the bill.
What is the Equality Act?
If the Fairness for All Act sounds familiar, it’s because the House of Representatives passed similar legislation earlier this year. The Equality Act also aims to add sexual orientation and gender identity to the list of characteristics protected under existing civil rights law.
The bill, which has been stalled in the Senate since May 20, would outlaw discrimination against gay and transgender Americans in many areas of public life, including housing, hiring, jury selection, and funding programs. Additionally, it would expand what counts as a “public accommodation” under the Civil Rights Act of 1964, ensuring that nearly all businesses must comply with nondiscrimination rules.
“We want to expand the definition of retail settings to better capture what discrimination looks like in 2019,” said Laura Durso, vice president of the LGBT Research and Communications Project at the Center for American Progress, to the Deseret News in May. The center was one of several organizations involved in writing the bill.
Is the Equality Act a threat to religious freedom?
Unlike the Fairness for All Act, the Equality Act does not pair new legal protections for the LGBTQ community with new protections for people of faith who oppose same-sex marriage. It would preserve existing faith-based exemptions to civil rights laws, but also limit the application of the federal Religious Freedom Restoration Act, which is often cited by religious organizations or individuals facing discrimination claims.
The act’s supporters believe limits on religious freedom are necessary in order to fully protect gay and transgender Americans. Legal protections for people of faith were never meant to justify attacks on others, they said.
“I don’t think faith groups have any reason to be afraid of this bill,” said Rep. David Cicilline (D-R.I.) in March. “The Civil Rights Act does some very careful balancing between two important values, freedom of religion and freedom from discrimination, and we think it strikes the right balance and the Equality Act will continue that.”
But Carlson-Thies and others argued that the Equality Act as it was passed by the House threatens the future of religiously affiliated humanitarian organizations, colleges and adoption agencies. Policymakers must ensure people of faith can live according to their beliefs, even when those beliefs are unpopular, said leaders from The Church of Jesus Christ of Latter-day Saints in a May statement.
“The church joins other religious organizations that also strongly oppose the Equality Act as unbalanced, fundamentally unfair and a path to further conflict,” they said.
How is the Fairness for All Act different from the Equality Act?
The Fairness for All Act is an effort to show that it’s possible to protect members of the LGBTQ community and religious freedom at the same time, Schultz said.
It came together through more than three years of dialogue between a diverse coalition of legal experts, LGBTQ rights activists, and religious organizations, including representatives from the Seventh-day Adventist Church, the Council for Christian Colleges and Universities, 1st Amendment Partnership, the National Association of Evangelicals, and The Church of Jesus Christ of Latter-day Saints. The most prominent LGBTQ organization involved is the American Unity Fund, which is politically conservative.
“The starting point for the whole negotiation was how can we maximize freedom on both sides,” Schultz said.
While drafting the bill, the coalition drew inspiration from a 2015 Utah law that also sought to balance religious freedom with LGBTQ rights. That policy prohibited sexual orientation and gender identity-based discrimination in housing and hiring, but offered exemptions to religious organizations.
The Fairness for All Act “has the spirit of the Utah Law,” Schultz said.
Like the Equality Act, the new bill would aim to reduce discrimination against gay and transgender Americans in housing, hiring, jury selection, public accommodations, and commercial credit programs. However, it also spells out several exemptions for churches and other religiously affiliated organizations, aiming to ensure that people of faith don’t face retaliation if they hold conservative beliefs on marriage and family life.
“It’s very much like the Equality Act in terms of what it gives to LGBT individuals, but unlike the Equality Act in that it also provides very robust protections for religious individuals and institutions,” Schultz said.
As part of this balancing effort, the Fairness for All Act offers a slightly more narrow definition of public accommodation than the Equality Act, exempting shops and online retailers with fewer than 15 employees, as well as a wide variety of religious organizations, like church-owned properties and funeral parlors catering to members of a particular religion. It would enable some religious objectors to same-sex marriage in certain industries to offer referrals to other service providers who are better prepared to serve the needs of LGBTQ clients.
“We tried to be specific,” Carlson-Thies said.
The Fairness for All Act is also more specific than the Equality Act about who can make a gender identity based discrimination claim. Both bills define gender identity as an individual’s “appearance, mannerisms or other ... characteristics,” but the former notes that evidence for a sincere claim can include medical history or the “consistent and uniform assertion” of a gender identity.
What else does the Fairness for All Act address?
The Fairness for All Act outlines new policies for some areas of public life that aren’t addressed in detail by the Equality Act. It would change the funding process for the foster care system, offer new workplace protections for employees, and encourage anti-bullying programs in schools.
The foster care policies are the most notable, since the rights of faith-based foster care and adoption agencies have been the subject of dozens of legal and legislative battles in recent years. The Fairness for All Act tries to ensure that religious agencies can stay open and that eligible LGBTQ couples still have plenty of opportunities to adopt, Carlson-Thies said.
“There are different views in society about LGBT rights and same-sex marriage and so on, but we have to live together,” he said.
Under the bill, federal money supporting the foster care system would go directly to “eligible prospective parents” who could choose which agency to work with based on their interests and needs. If the agency objected to working with the couple for religious reasons, it would be required to refer them to another organization.
The funding process is modeled after existing federal voucher programs, including the system through which low-income families access child care. It aims to eliminate concerns about the government directly funding religious programs, Schultz said.
How will members of the LGBTQ community react?
The Fairness for All Act’s supporters believe it outlines the best path forward out of current conflicts over the rights of gay and transgender Americans. The success of Utah’s law shows that a balanced approach works for everyone, they said.
“This is giving both sides a very high percentage of the nondiscrimination provisions they’ve sought for years,” Schultz said.
However, he and others acknowledge that it won’t be an easy sell for proponents of the Equality Act. The Fairness for All Act would create religious exemptions to LGBTQ nondiscrimination protections that aren’t available in the context of race-based discrimination claims.
“For LGBTQ people living at the intersection of multiple marginalized identities, this bill is a double whammy of dangerous rollbacks and discriminatory carve-outs. This bill is both wrong and harmful, and we strongly oppose it,” said Alphonso David, president of the Human Rights Campaign, in a Dec. 6 statement.
Rabbi Jack Moline, president of the Interfaith Alliance, said the Fairness for All Act would create a “right to discriminate” rather than reducing existing harms.
“Religious exemptions in commerce, family definition, medical care or other legal and legally defined benefits of citizenship are, by any other name, a repudiation of the very principles of equality that are foundational to the United States,” he said in a Dec. 6 statement.
What will happen next?
The odds don’t look good for the Fairness for All Act in the Democrat-controlled House, which passed the Equality Act with a vote of 236-173. Even if it can clear that hurdle, it’s unclear if the Senate will be willing to take it up.
“The issue of LGBT rights is happening in the House because of the Equality Act, but the perception in the Senate is that it isn’t happening here now and there just isn’t that urgency,” Schultz said.
Schultz and others are still hopeful that the bill’s introduction will lead to more meaningful conversations about religious freedom and LGBTQ rights moving forward. For too long, related debates have focused on controversy rather than the potential for compromise.
“Nobody has ever offered this kind of opportunity for a reasonable middle ground,” Schultz said.