Why I am Against The Equality Act in its Present Form

There has been a lot of talk in the press lately about The Equality Act which this time around, may in fact be passed into law. But here’s the thing, I don’t trust the social alarmism of the conservative press any more than I trust the jubilant enthusiasm of the left-ward press to fully elucidate the potential dangers of such legislation. I therefore set out to set the record straight and, ignoring what other people had to say about the bill, have read it myself and come to my own conclusions. Yes I read it, I am a boring person in that regard. I am a person who reads Privacy Policies, who listens to classical music, who watches CSPAN. If you want to be informed about the Equality Act you should go read it also. But regardless here is what I found and what I have to say on the matter.

The official summary of the proposed legislation (according to the Congressional Research Service or CRS) is as follows:

“This bill prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.

The bill expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services.

The bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.

The bill prohibits an individual from being 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.”

Reading the bill itself I will admit was quite a chore. The summary in fact illustrates one of the ways in which the bill could potentially be abused, but I will touch on that later.

The concern of the conservative press is not entirely farcical nor as unreasonably alarmist as one might expect. Indeed it deserves the utmost consideration as after careful evaluation I have come to realize that many of its concerns are genuine.

I have been saying for years now that such a thing as the Equality Act needs to come into being. It is atrocious that such protections for LGBTQ individuals are not included in the Civil Rights act and still are not included within it. Section 2 of the proposed bill titled “findings and purpose” clearly elucidates the desperate social necessity for such legislation with sound reason and the liberals I am often critical of in congress have done a fine job in illustrating the hardships and discrimination that LGBTQ people face. In fact I hardly could have written it better myself. Such a bill needs to be passed yesterday.

However, the conservatives here have a point. Political tribalism in this country has led to a complete lack of considerations for what valid points are made by the opposition and this is a shame because with the concerns of the opposition addressed this would have made a fine piece of legislation. Firstly, there is the obvious:

“The bill expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services.”

To the conservative reader, these things mean churches, places of worship, explicitly religious organizations. The concern here is a valid one as a more extreme interpretation of the proposed legislation could take establishments that provide the above mentioned services to be places of worship. A simple look at the historical application of the 1917 Espionage Act and the Patriot Act shows that without firmly expressed definitions and self-regulations written into the bill as opposed to presumed implications, laws passed are often enforced in the most tyrannical manner possible. I wish it would pass so long as it never was used against the religious freedom of a conservative congregation. But in its current form I regret to say that I do not have such confidence.

Then there is the section in the bill as follows:

“The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

This is in direct reference to Trump’s Ex. Ord. No. 13798. Promoting Free Speech and Religious Liberty. People hear Trump and their gut reaction is to think “uh oh this is probably a bad thing”, but I think while understandable this view is certainly not always correct. Now, I don’t need to stress my credentials here in regards to my opposition to Trump but I will regardless. In my city I was among the first to organize a protest against Donald Trump in 2016 when he first visited during his campaign, months before the mass rallies that followed the announcement of him winning the election that I also participated in. However in reading the contents of the executive order, I actually agree here with Trump. I say this as someone not blinded by political tribalism, yes Trump is right here. He is a bastard in most all other respects but he was right here, and he was also right to oppose NAFTA when Clinton supported it, even if for the wrong reasons. I stand by this position.

In Section 2 of the executive order Trump says:

“All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.”

But the position Trump takes here, I think, is more or less the correct one. In regards to positive liberty, privacy, freedom of the press, and freedom of protest I do not trust the positions of Donald Trump in regards to executive orders, but in regards to religious liberty Trump here seems to be correct.

Even among his support base, this executive order was widely condemned for not going far enough (see: https://www.theatlantic.com/politics/archive/2017/05/religious-freedom-executive-order/525354/). And when Trump is condemned for being a moderate for something by his own supporters, we should take note.

Liberty can of course be abused, and I accept this. This is a safe-guard for fundamentalist churches and religious organizations to speak freely on what they see as the literal word of God. That isn’t hate. Most conservative fundamentalists, in fact I’d say the overwhelming majority, do not hate LGBTQ individuals. Their opposition stems from a loyal, albeit rigid adherence to scriptural doctrine written some 2000 years ago, as interpreted by them to be the literal word of God. To them it isn’t so much of a choice. A more “preferable” theology would betray the very premises of their faith and serve to fundamentally violate their religious conscience. Christianity is becoming more progressive and I think that’s a good thing, but there will always be religious fundamentalists who adhere to orthodox positions that homosexuality is a sin. Do I agree with the position? No, but that’s my opinion as a revolutionary Christian. I am free to be a revolutionary Christian or even a conservative Christian and that is precisely the point. The protections for such people must always exist if religious liberty is to exist.

To interpret houses of worship as “exhibitions, recreation, exercise, amusement, gatherings, or displays, goods, services, or programs, or transportation services”, as a strict interpretation of this legislation seems to imply, would be a grave violation of the first amendment and the rights of the people to religious freedom which must be safe-guarded at all costs.

I believe such religious safeguards should apply only to places of worship. I do not think there should be such exemptions allowed for religious hospitals or colleges or restaurants or bakeries as those are public services whose social utility is only secondarily rooted in religion. To say “oh we cannot serve you because you are gay and we are religious” is a grave violation of LGBTQ civil rights. But for churches my position is quite clear. We have religious freedom in this country, and that freedom cannot be limited without being lost. It must stand as firm and inflexible for the conservative fundamentalist congregation as it stands for the progressive LGBTQ affirming congregation. That is, it must allow unlimited freedom of conscience to follow scriptural doctrine irregardless to prevailing social norms or prevailing morality.

Getting something like the Equality Act is also a matter of liberty, and something in its general spirit must be passed. The bill needs to be re-written at once to explicitly provide exemptions to places of worship.

For a church to refuse to hold a same-sex wedding or to refuse membership to a same-sex couple is not the same as a baker refusing to bake a cake for a gay couple or a hospital refusing to treat an LGBTQ patient. For a church to violate its own beliefs in this way would be sacrilege. As a progressive Christian I think the views held by the fundamentalists are unnecessary and outdated, but I recognize that to them it is the immutable word of God and to challenge that would be to, in their eyes, challenge God himself. It would undoubtedly lead to religious persecution, perhaps if taken to its extreme, even to the formation of an underground church that did not adhere to such tyrannical violations of the peoples right to religious liberty. While not agreeing with the reasons I would support the fundamentalists in this as it would be an act of rebellion against the unjust intrusions of the state.

In short, we needed something like the Equality Act yesterday. But the new definitions are too broad and leave room for interpretations that could force churches and houses of worship to violate their own principles and commit sacrilege. We should not trust the mere implication that such definitions would not apply to houses of worship, we should trust only clearly defined exemptions for houses of worship. I don’t want to have to rely on a supreme court case precedent for this question to be decided. Write it into the damned bill. The state cannot be trusted not to liberally go far outside the purpose of the written law as intended by its authors (see the Espionage Act and the Patriot Act). Such exemptions should apply only to places whose social function is primarily and not secondarily religious, so houses of worship and not hospitals or restaurants. The Bill should be rejected in its present form, rewritten to adequately address these issues, and re-introduced at once. Only then can we assuredly and confidently grow the tree of liberty for everyone, ensuring that no branches wither at the expense of another. Only then can we say that both LGBTQ rights and religious liberty are both non-negotiable.

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