A panel of lawyers discussed the Equality Act and wrestled with its ambiguities in light of religious freedom during the Religious Freedom Annual review on June 19.
The Equality Act, which passed in the U.S. House of Representatives on May 17, has a stated purpose “to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.”
According to Frank Ravage, the panel moderator and a law professor at the University of Michigan, the act would add protections for LGBTQ individuals in public accommodations, employment, housing, federal funding and other areas.
However, some religious freedom advocates are concerned the act may threaten religious freedom, and many groups, including The Church of Jesus Christ of Latter-day Saints, have spoken out about the act’s limitations.
Panelist Alexander Dushku, a shareholder at Kirton & McConkie, explained that the Equality Act would insert sexual orientation and gender identity into the 1964 Civil Rights Act, which he said was passed “to expend vitally important civil rights to African-Americans.”
Dushku said the Equality Acts raises questions about whether the religious protections in the 1964 Civil Rights Act are sufficient for the insertion of sexual orientation and gender identity. He added that the Equality Act would revoke the Religious Freedom Restoration Act, a 1993 act that protects religious freedom, as applied to the Civil Rights Act.
“I think that is indicative of an understanding that the Equality Act is going to create some very, very serious religious liberty conflicts,” Dushku said.
Panelist Shannon Minter is a member of the LGBTQ community and the legal director of the National Center for Lesbian Rights, a group that supports the Equality Act. Minter emphasized that the aim of the legislation was never to limit religious freedom, but to establish nationwide protections of LGBTQ people.
“There’s a real need for these protections,” Minter said. “Right now, there’s no federal law that prohibits sex discrimination in public accommodations and federal funding.”
Minter explained that the Religious Freedom Restoration Act has been used by private businesses to justify discrimination against LGBTQ people, creating new conflicts with religious liberty. One possible solution, Minter said, would be to limit the Religious Freedom Restoration Act to non-profits.
“I would be willing to do that,” Minter said. “Of course, I can’t speak for the entire movement, but that would help alleviate our concerns and concerns on the other side as well.”
Dushku expressed concerns about how the Equality Act would expand the definition of public accommodations to include any place of public gathering, raising questions about whether a church or religious university would fall into that category.
“At a minimum, there are people that are really, really concerned about that,” Dushku said.
Panelist Tim Schultz, the president of the 1st Amendment Partnership, expressed similar concerns that the Equality Act’s ambiguity may create costly litigation for religious institutions.
“Most religious organizations are not flushed with money. Most homeless shelters are not flushed with money,” Schultz said. “They’re just not in the position to be litigating these questions of law. … It would be better to avoid this litigation at the outset.”
Schultz said most anti-discrimination state laws make it clear that core religious properties are not places of public accommodation, and a similar clarification may improve the Equality Act.
“Ambiguity breeds fear and breeds uncertainty, and all of that breeds conflict,” Dushku said. “So, to the extent that we can define quite precisely zones in which LGBTQ people are fully and completely protected and zones of traditional religious importance where people of faith are protected — that defining process is enormously important.”
Minter said he’s involved in an alternative bill that addresses the ambiguity in the Equality Act as it currently stands.
“I just want to be really clear that the intent behind the Equality Act is not to do any of these bad things that we’re talking about, any of the possible sort of extreme applications that could conceivably result,” Minter said. “And part of the potential tragedy here, honestly, is the lack of direct communication between LGBT advocates and representatives of religious communities.”
Minter expresses his belief that the religious and LGBTQ communities have very little substantive disagreement about the law itself and may fixate on minor differences.
“We just really have got to talk to each other and understand, ‘What are the fears and misunderstandings on either side of the fence?’” Minter said.
Dushku also expressed concerns that religious colleges that accept federal money would be held to LGBTQ non-discrimination law. For example, BYU may face the threat of losing federal money through Pell Grants, research grants and government contracts if the Equality Act were to pass as written.
Minter assured that such a situation was never in the intent of the Equality Act, but he recognizes that it still may be a possibility.
“That was not the idea, the intent; that’s not the aim, but it could happen,” Minter said. “The common theme here to me is that the Equality Act took a certain approach … and it creates a lot of ambiguity and a lot of unanswered questions.”
He added that the ambiguity in the Equality Act may be a result of the daunting task to create a comprehensive nondiscrimination act that adds sex, sexual orientation and gender identity to existing statutes and expands on the definition of public accommodations.
“Just to get this really basic agreement on this basic principle framework took a long time and a lot of work, and the reality is, there’s much more that needs to be done,” Minter said.
