To say that the Equality Act — which the U.S. Senate will soon take up after its passage in the House — has changed over the years is a huge understatement.
The first version of this legislation, introduced in 1994, prohibited discrimination in employment on the basis of sexual orientation, but did not apply to religious organizations. Today, however, the Equality Act would prohibit discrimination on the basis of both sexual orientation and gender identity across multiple sectors of American life, including employment and housing, public education and financing — even the credit markets and jury service.
Worse, it now prohibits anyone from even arguing that its enforcement interferes with the fundamental right to practice religion.
It’s vital to understand just how unconstitutional the Equality Act is.
The freedom to practice one’s religion is not just an optional, take-it-or-leave-it right. Before he drafted the First Amendment with the “free exercise of religion” as the first individual right, James Madison argued to the Virginia legislature that religious exercise “is precedent, both in order of time and in degree of obligation, to the claims of civil society.” In other words, it is both fundamental and primary.
One way to see the importance of something is to note the measures taken to protect it. The Supreme Court, for example, repeatedly recognized the importance of religious freedom by holding that government burdens on the exercise of religion must be the “least restrictive means” of achieving a “compelling” purpose. That is the toughest standard in American law.
The other two branches of government have also said that religious freedom is a fundamental right. For decades, presidents have said so in their Religious Freedom Day proclamations. President Barack Obama, for example, called religious freedom a “universal human right” and an “essential part of human dignity.” America, he said, “proudly stands with people of every nation who seek to think, believe and practice their faiths as they choose.”
In the Religious Freedom Restoration Act (RFRA), Congress in 1993 put into a statute the Supreme Court’s earlier standard setting a high bar for the government to interfere with the practice of religion. On the one hand, this standard reflects what the Founders, Congress, the Supreme Court and presidents have all said about religious freedom.
On the other hand, RFRA does single out any religious practice for special protection or disfavor. That is its genius: RFRA recognizes the fundamental importance of religious freedom and sets the appropriate standard for courts to handle clashes between government action and the exercise of religion.
While the Supreme Court has said that RFRA applies only to the federal government, it still requires that federal statutes comply with its standard. If Congress wants to reject these priorities and say that religious freedom, which Congress unanimously declared in 1998 “undergirds the very origin and existence of the United States,” no longer matters, it must explicitly say so.
For nearly three decades, Congress believed that RFRA should protect everyone equally — that government should always have to answer for placing burdens on the fundamental right to practice religion. If the government’s end was compelling and the means it used restricted religious practice no more than necessary, government would win. If not, then religious freedom would win. But everyone appeared to agree on the overall importance of religious freedom and RFRA’s equal application to everyone.
That was then, this is the Equality Act.
Since the Supreme Court’s 2015 decision creating a right to same-sex marriage, the Equality Act has said that RFRA “shall not provide … a basis for challenging the application or enforcement of” any Equality Act provision. This does not simply change RFRA’s legal standard so that government can more freely do what it wants in the areas covered by the Equality Act. This slams the courthouse door to anyone who would even make an argument that government actions under the Equality Act burden their religious freedom.
By excising RFRA from the legislation equation altogether, the Equality Act gives government free rein to restrict, compromise or even eliminate the fundamental right to practice religion in pursuit of the Equality Act’s political agenda. It says that what Obama called an “essential part of human dignity” must always give way to the Equality Act’s political agenda.
This would be the first time that Congress not only provided inadequate protection for religious freedom, but deliberately and publicly repudiated it altogether.
In his 2010 religious freedom proclamation, Obama said that religious freedom is “the natural right of all humanity — not a privilege for any government to give or take away.” The Equality Act proves that in legislation, as in life, actions speak much louder than words.
• Thomas Jipping is a Senior Legal Fellow, and Sarah Parshall Perry is a Legal Fellow, in the Institute for Constitutional Government at The Heritage Foundation (heritage.org).
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