Equality Act: Equality The Right Way

U.S. Sen. Jeff Merkley (D-Ore.) and U.S. Rep. David Cicilline (D-R.I.) today introduced the Equality Act, which would protect LGBTQ people from discrimination. It builds on our nation’s tradition of expanding civil-rights protections to ensure that more of our neighbors are protected from discrimination based on who they are.

The bill would amend several federal civil rights laws to prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing, credit and jury service. It would also amend existing laws to prohibit discrimination in public accommodations and federal funding on the basis of sex, sexual orientation and gender identity. Finally, it would update public-accommodations law to ensure that the businesses that provide the goods and services we all use frequently, such as stores and banks, do not discriminate on the basis of any protected characteristic – including, for example, race, religion and sexual orientation.

The Equality Act would simply afford LGBTQ people precisely the same protections possessed by those groups already protected by federal civil rights laws.

Here are a couple of points to note about this:

First, it only makes sense to expand civil rights protections in a way that promotes equality rather than creates different levels of protection for different groups. After all, discrimination is discrimination no matter who the target is. 

Second, this legislation ensures that the religious exemptions in federal civil rights laws will remain in place just as they have for 50 years. There are no additional exemptions that would permit discrimination in the name of religion against our LGBTQ neighbors and no religious exemptions that currently exist are removed. In general, this means religious institutions can prefer people of their own faith, but they can’t discriminate against people because of their other characteristics, such as race, sex and sexual orientation.

This is a smart move, as objections to its broad religious exemptions led to the demise of the Employment Non-Discrimination Act (ENDA), a bill first introduced in Congress in 1994 that would have prohibited discrimination in employment against LGBTQ people. These broad religious exemptions would have meant that LGBTQ people were singled out to be treated differently than other groups, sanctioning employment discrimination against LGBTQ people by religious institutions when such discrimination is otherwise prohibited. Americans United was very concerned about these broad exemptions when the bill was last considered in 2013.

The Equality Act, introduced today, would protect LGBTQ people from discrimination.

The Equality Act also includes a critical clarification: The federal Religious Freedom Restoration Act (RFRA) cannot be used to prevent enforcement of any of the federal civil rights laws covered in the bill – for any of the covered groups, including race, national origin, sex and religion, in addition to sexual orientation and gender identity. 

RFRA prevents the government from substantially burdening a person’s religion, but RFRA cannot be used to trump a law that serves a compelling government interest. And, to state the obvious, the government has a compelling interest to eradicate discrimination through robust enforcement of our civil rights laws.  

Unfortunately, we are seeing groups ranging from for-profit businesses to taxpayer-funded organizations make the outrageous claim that, under RFRA, they should be exempt from following civil rights laws. This clarification, therefore, is simply an extra measure to ensure that institutions covered by our civil rights laws cannot use RFRA to claim they should be able to get out of their legal obligations and engage in discrimination. 

It also illustrates why it’s exactly the right time to amend RFRA to clarify that it cannot be used to create religious exemptions to laws which result in harm to a third party. RFRA shouldn’t be used, for example, to trump non-discrimination laws, evade child welfare laws, undermine workplace laws or deny access to healthcare. Last year, we supported the Do No Harm Act, introduced by Reps. Joseph Kennedy (D- R.I.) and Bobby Scott (D-Va.), which would preserve RFRA’s power to protect religious freedom while clarifying that RFRA may not be used to harm others. And of course we will support similar efforts in the future.

When we as a society decide to take action to better realize the promise that all of us are equal citizens under the law, we can’t permit someone’s religious beliefs to justify discrimination. The Equality Act fulfills this principle because it doesn’t create any additional religious exemptions and clarifies that RFRA doesn’t apply to the federal civil rights laws covered in the bill. This is the right way to protect our neighbors.