This is the fourth in a series of articles discussing the Equality Act. Previous articles discussed why I chose to consider this particular piece of legislation, asked if the LGBTQ community faced a crisis of sufficient magnitude as to warrant changing our civil rights laws, took a detour to consider the comments of some readers. Today we ask the question: Is the Equality Act the best way to solve the LGBTQ discrimination problem?
A Christian baker in Colorado ended up in court for refusing to bake a same-sex wedding cake. Colorado has a law prohibiting discrimination on the basis of sexual orientation and gender identity and the state Civil Rights Commission took action against the baker.
The baker appealed, claiming that he has nothing against gay or transgender people (serving both as regular customers), but that his “freedom to disagree” with gay marriage on religious grounds gives him the right to refuse the job.
Rights verses Rights
We see here that rights don’t exist in vacuums. They often collide in politics much like atoms and molecules do in physics. When rights collide, someone must decide which rights prevail.
Sometimes, a compelling government interest, like guaranteeing civil rights, moves government to infringe on other rights. The fear is that sometimes government can go too far protecting some freedoms at the expense of others.
In 1993, to protect the freedom of religion, the Religious Freedom Restoration Act (RFRA) became law. It limits government infringement on the freedom of religion and requires application of the strictest constitutional test when religious freedom is infringed.
In our test case, the baker lost in state court, but won in the Supreme Court. SCOTUS ruled (7-2) that Colorado showed “official expressions of hostility to religion” and overturned the commission’s actions against the baker.
Now, that same baker is back in court for refusing to make a gender-coming-out cake. And this time, passage of the Equality Act could produce a quite different outcome.
What Would Be Different?
The Equality Act would create the new protected class of “sex (including sexual orientation and gender identity)”. In areas of public accommodation (offering any good, service or program); employment, housing, education, credit or jury service it would be illegal to discriminate on the basis of sex. This is a big deal.
But that’s not all. The Equality Act also specifically prohibits using RFRA as a defense against a sex discrimination charge. This would mean the baker’s “freedom to disagree” could cost him a hefty fine each time he followed his conscience in his business.
Do we want to go this far?
I suggest that we can protect LGBTQ rights without trampling on the freedom of religion. Here are some suggestions.
We could amend the Act, removing the RFRA restriction. Cases would still need to be adjudicated and defendants would need to demonstrate earnest religious objections, but it would allow a better balance between peoples’ rights.
We could reject the act and allow each state to craft laws that best serves their citizens. For those that doubt that Conservative state would be likely to pass protective legislation, I refer you to my own (very conservative) state. Way back in 2015, Utah passed a bipartisan solution with input from the LGBTQ community and religious leaders. It strikes a balance, protecting both gay rights and religious rights. It was forged through cooperation and collaboration, by the representatives closest to the people.
We could allow specific issues and cases to be adjudicated in the courts. Our baker’s case was a good example of how this works. No, it does not allow a one-size-fits-all, instant gratification solution to the sticky problems, but that’s not all bad. A careful case by case consideration of the myriad of issues involved here might just be the best solution.
We could all just get along. Before you laugh off my Pollyannaish suggestion, consider this question. How many LGBTQ people do you know or have you done business with? Those who know them and associate with them find that they are just like their straight counterparts. Some are good, some are bad and mostly they are just regular people that lie outside the norm in one way – sexual preference or sexual identity. If the civil rights movement has taught me anything its that getting to really know and understand those different from me has been the greatest resolution to most of my prejudices, fears and phobias.
I will spend more time on this idea in my final post, as well as considering other questions about the Equality Act. Please join me!
Next: Intended and Inintended Consequences of the Equality Act.