Anthony LoCoco, Deputy Counsel
The United States Senate is considering whether to pass the Equality Act, a bill designed to prevent perceived discrimination on the basis of sexual orientation or gender identity in a wide range of settings such as public accommodations, employment, and education.
It is not an overstatement to say that the bill represents probably the greatest threat to religious liberty in the United States of the last thirty years or more, and that its passage would represent an utter betrayal of the fundamental values upon which the country was founded. To understand why, it is necessary to discuss both what the Equality Act does and how it intersects with current religious liberty protections in the law.
The Equality Act
The Equality Act is not a particularly difficult law to understand in operation. In a nutshell, it amends federal civil rights laws by making sex—defined to include sexual orientation and gender identity—a protected class alongside race, color, religion, and national origin (which are already protected).
The principal law that the Act amends, the Civil Rights Act of 1964, was enacted at a time of rampant discrimination against black Americans. Because the Equal Protection Clause of the Fourteenth Amendment prohibits only discriminatory governmental action, a federal statute was needed to eliminate the widespread segregation that private entities were carrying out. The Civil Rights Act accomplished that goal by broadly prohibiting discrimination on the basis of race (and other already-referenced characteristics) in a variety of contexts. Still in effect today, the Civil Rights Act applies to public accommodations like privately-owned hotels, theaters, and restaurants; state-owned or -operated facilities; public schools; federally-funded programs, which can cover a wide range of entities, such as private schools or state agencies; and private employers. The law remains one of the most significant pieces of legislation in the federal code.
Rather than starting from scratch, the authors of the Equality Act have simply coopted the machinery of the Civil Rights Act, protecting the characteristics of sexual orientation and gender identity in the same manner. The Equality Act also contains a few important “tweaks” to the Civil Rights Act. It drastically expands the definition of “public accommodation” to include, among other things, “any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services,” as well as any “place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display.” The Act also explicitly provides that an individual cannot be “denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.”
This extends the Equality Act’s sexual orientation and gender identity anti-discrimination coverage to a variety of contexts that are more private, smaller, and/or more intimate than existing anti-discrimination laws. Swept within the law’s ambit are all manner of small businesses previously seen as obstacles to achievement of the Act’s goals: think bakers, photographers, and florists, for example, among countless others. The Act makes no provision for circumstances in which, for example, allowing biological males into spaces traditionally reserved for biological females may be thought problematic, such as shelters. It may also affect the way in which families, counselors, and others are permitted to treat gender dysphoria.
The Civil Rights Act is not the only federal law the Equality Act amends. Also modified are the Fair Housing Act, the Equal Credit Opportunity Act, and laws involving jury selection.
The Equality Act, in short, is dizzying in scope. It would make “discrimination” on the basis of sexual orientation or gender identity illegal in almost every aspect of American public life.
Free Exercise Protections
Questions involving sexual orientation and gender identity remain highly controversial in the United States, and countless Americans have good faith, conscientious objections to actions the Equality Act would apparently require, whether baking a wedding cake for a gay couple, opening a locker room to transgender individuals, or performing “gender-affirming” medical procedures. So the natural question that arises is whether a law that would force so many Americans to violate their consciences could even survive judicial review.
The surprising answer to that question may well be yes, at least under current law. Here’s why.
The federal constitutional provision designed to protect the rights of conscience is the First Amendment’s Free Exercise Clause, which prohibits Congress (construed to also include the States) from “prohibiting the free exercise” of religion.
The Free Exercise Clause is best read to prohibit a law like the Equality Act (at least in all of its applications), and it might once have done so. But in the landmark 1990 case of Employment Division v. Smith, a divided Supreme Court gutted the Free Exercise Clause by ruling that it “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’” on conscience grounds.
Amidst public backlash to the decision in Smith, Congress enacted the Religious Freedom Restoration Act, or RFRA, in 1993. Introduced by Chuck Schumer and Ted Kennedy, it passed the House unanimously and the Senate almost unanimously and was signed into law by President Clinton. RFRA, which is still in effect today, provides robust protection for religious liberty, declaring that the government may substantially burden a person’s exercise of religion only if in furtherance of a compelling interest and only if the law is the least restrictive means of furthering that interest.
In summary, for decades now American society has functioned with a weak Free Exercise Clause (Smith) but strong federal statutory protections (RFRA).
So how does the Equality Act get around RFRA? Simple: Section 9 of the Act creates a provision stating that RFRA “shall not provide a claim concerning, or a defense to a claim under . . . or provide a basis for challenging the application or enforcement of” the laws the Act amends. In other words, it effectively repeals RFRA where needed most.
This short provision is the Act’s most destructive provision. It destroys the bargain America struck in 1993 to preserve religious liberty. Indeed, in exempting itself from RFRA, the Equality Act not only does not seek to balance the interests of gay and transgender rights advocates with those of objecting religious adherents, it essentially recognizes that even where the government is substantially burdening a person’s exercise of religion and even where that burden is not justified by a compelling interest and/or is not the least restrictive means of furthering such an interest—the circumstances where RFRA might be triggered—the adherent’s religious scruples must give way. The Equality Act destroys the concept of religious liberty as heretofore understood in the United States when it comes to matters such as sexual orientation or gender identity.
This might, it should be noted, provide the basis for a constitutional challenge—even under Smith. In passing the Equality Act, Congress would arguably be targeting certain religious beliefs, i.e., those adhering to the traditional views of human sexuality and gender held by the Abrahamic faiths. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 521 (1993) (“Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”). In addition, Smith has come under substantial criticism and a number of Justices have expressed an interest in reconsidering its holding. In fact, the question of Smith’s continued viability is currently before the Court in Fulton v. City of Philadelphia, Pennsylvania, No. 19-123. But, as things stand today, there is no assurance that the Equality Act would be struck down by the courts. In fact, it is likely that it would not be.
Nor would the Wisconsin Constitution provide any bar to the Equality Act’s application. It is true that Wisconsinites enjoy robust religious liberty protections; in 1996 the Wisconsin Supreme Court unanimously rejected Smith and concluded that that document’s conscience clause operates much like RFRA. But the U.S. Constitution’s Supremacy Clause provides that federal statutes trump state constitutional provisions. In a lawsuit over the Equality Act, the Wisconsin Constitution would not even be a consideration.
Ultimately the Act’s RFRA exemption could well result in the Act’s own demise. The Supreme Court, faced with a country possessing seriously limited religious liberty protections, might eventually feel compelled to overrule Smith and reinstate RFRA’s framework as a matter of constitutional law. But not before the Equality Act forced countless Americans to violate their own consciences or shutter their businesses, hospitals, and schools.
The Equality Act is Wrong for Wisconsin
The Equality Act is aptly named insofar as it seeks to prize the ideal of equality above all things (though actually failing to do so). It is therefore very easy to demagogue—opponents must necessarily hate not only gay and transgender individuals, but the very notion of equality itself!
This is false, of course. Equality is often in tension with a second ideal, liberty, and it is the job of responsible lawmakers to strike the proper balance between the two. Thus, there may be conceivable laws that would actually help bridge the divide between all sides on issues relating to gay and transgender individuals. But the Equality Act’s authors did not try to accomplish this goal; they simply decided that religious liberty does not matter.
In reality, a vote in favor of the Equality Act is a vote to overturn the bipartisan Religious Freedom Restoration Act and what it represents—in the words of James Madison, “That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it according to the dictates of Conscience.” Lawmakers need to vote no.
 It is possible that application of the Equality Act to certain expressive conduct may run afoul of the First Amendment’s protection of free speech. See Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, ___ U.S. ___, 138 S. Ct. 1719, 1740-48 (2018) (Thomas, J., concurring in part and concurring in the judgment).