The Equality Act: A Clear and Present Danger

The so-called Equality Act is a radical threat to America's bedrock constitutional freedoms of religion and speech

In July 2015, when the Supreme Court announced its ruling in Obergefell v. Hodges, which legalized gay marriage nationwide, then-Senior Associate Justice Anthony Kennedy wrote in the majority opinion that the ruling posed no threat to constitutional religious freedoms.

Kennedy even posited that gay marriages “involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

His colleague Samuel Alito, joined by justices Clarence Thomas and Antonin Scalia, begged to differ—sharply. Alito wrote in a dissent that traditionalists would presumably be allowed to “whisper their thoughts in the recesses of their homes,” but if they uttered their beliefs publicly, they would be labeled “bigots and treated as such by governments, employers and schools.”

Alito’s retort has proven to be prophetic. 

In the four years since, the list of wedding vendors, business leaders, government leaders, students, campus ministries, judges, military personnel and counselors punished, silenced, sued or fined for Christian convictions concerning marriage and human sexuality has ensued just as Alito predicted, or worse. If that wasn’t enough, LGBTQ activists have relentlessly pushed for normalization of transgenderism, gaining footholds in psychiatry, medicine, news media, entertainment, education, government and social services, while demonizing any who question the new sexual dogma and labeling them haters or bigots.

That momentum has carried over into national politics, with prominent progressive politicians embracing the LGBTQ movement’s playbook with unadulterated enthusiasm.  

The Equality Act of 2019 is the latest, and arguably the most dangerous, example of this. After the House passed it this spring, Speaker Nancy Pelosi boasted to reporters: “I say tolerant … is a condescending word. This is not about tolerance. This is about respect of the LGBTQ community. This is about taking pride.”

Tolerance is no longer enough. What Obergefell didn’t accomplish, the misnamed Equality Act of 2019 attempts to complete with the full crushing force of the federal government behind it. 

Former Vice President Joe Biden, thought by some as the front-runner for the Democratic nomination for president, announced on June 5 that the Equality Act would top his list of priorities.

“It will be the first thing I ask to be done,” Biden told an Ohio audience at a dinner sponsored by the Human Rights Campaign, the powerful LGBTQ lobbying group. 

The Equality Act has come up before, but it prevailed in the House for the first time this spring, by a comfortable 236-173 margin. It is now with the Senate, which is unlikely to pass it. However, one election could change that.

If the Equality Act becomes law, it would remake the landmark 1964 Civil Rights Act—which aimed to correct systemic and institutional racial discrimination—by establishing new federally protected categories of sexual orientation and gender identity in every sphere of society, including religious institutions.

Alliance Defending Freedom, an organization that has argued notable cases for businesses that have been in the crosshairs of LGBTQ activists and progressive bureaucrats, explained in an email to Decision: “SOGI (sexual orientation and gender identity) laws like the Equality Act coerce obedience to one view of marriage, sexual morality, and what it means to be male and female. If it became law, the Equality Act would forbid churches, religious schools and other religious nonprofits from drawing their workforces from among those who are willing to abide by organizational standards on these subjects.”

Kelly Shackelford, president and CEO of the First Liberty law firm, which helped argue in favor of religious freedom and free speech in the Obergefell case, agrees.

“The Equality Act attempts to make sure that in all cases LGBT rights trump religious freedom—in every situation. It makes religious freedom a secondary freedom or right.” 

Shackelford says the bill would have broad implications for people of faith; churches; faith-based institutions, including foster and adoption care entities, parents, students, medical workers and public employees; as well as private sector businesses and employees. 

The Equality Act explicitly states that the provisions in the 1993 Religious Freedom Restoration Act (RFRA)—which aimed to ensure that “interests in religious freedom are protected”—cannot be used as a defense in cases in which sexual orientation or gender identity discrimination is in question.

Additionally, it would override religious freedom restoration laws in the states, as well as application of the federal RFRA as it pertains to conscience protections for federal employees. 

“They want to make sure there’s no religious freedom defense,” Shackelford says. “People can’t have a different belief and expect to live in peace. They can’t even make the argument for their beliefs, which is why this is so extreme. Even if you’re a nonprofit religious group, you can get sued for discrimination if you’re not following the new orthodoxy on LGBT rights, gender transition and gender identity, and everything else. And you have to open your showers, your bathrooms, etc., to the opposite sex.

“In every scenario, whether you’re a parent, you’re a woman or a girl, you’re a nonprofit religious group, you’re an employer or you’re a medical professional—you name it—in all scenarios, religious freedom is now subsidiary and LGBT and gender-identity rights trump, in all cases, religious freedom and people’s right to conscience.”

Even a liberal scholar like Douglas Laycock of the University of Virginia law school, a same-sex marriage supporter, has argued against the Equality Act, telling National Review that the bill “is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”

Some on the left have claimed religious conservatives are using scare tactics to drum up opposition to the Equality Act. Todd Chasteen, vice president of public policy at Samaritan’s Purse in Boone, North Carolina, says they are either disingenuous or woefully misinformed.

“It’s not theory. This is reality. These things are happening,” he says.  

The case of fired Atlanta Fire Chief Kelvin Cochran is a prominent example of where the Equality Act would take the nation, Chasteen says. Cochran, who has since won a lawsuit in federal court and received damages from the City of Atlanta, was fired in early 2015 for writing a Bible study for a men’s group he taught at his church. It briefly covered Biblical sexuality and God’s plan for marriage.

“His book disagreed with the sexual orthodoxy of the left, and they went after him,” Chasteen says. 

Chasteen also noted the $135,000 fine levied by the state of Oregon on Aaron and Melissa Klein, who operated a bakery that refused to design a cake for a lesbian wedding. The Kleins eventually had to close their storefront shop. In another case, an Ohio judge terminated the parental rights of a couple who had refused to support their daughter’s transgender hormone treatments. And in Anchorage, Alaska, a faith-based shelter is fighting for the right to prevent biological males from sleeping in a room reserved for women who have been victims of sexual assault or physical abuse.

“None of this is theory,” Chasteen reiterated. “This is reality.”

“The Equality Act is a federal act, which would mean that we would have to walk around hiding what our belief systems are in all 50 states if this thing ends up being approved.”

Even some in the liberal feminist movement are concerned that the Equality Act could erode gains made for women over decades by making one’s biological sex meaningless in multiple arenas, and by creating an uneven playing field in women’s athletics. In Connecticut, for example, two biological males who are reportedly taking female hormones finished first and second in the high school girls state indoor 55-meter sprint, with the winner setting a state record.

As Rep. Vicki Hartzler (R-Missouri) wrote in an opinion piece for The Hill: “Congress enacted Title IX for a reason—to provide an equal playing field for men and women. But by requiring that all federally funded programs ignore the biological differences between the sexes, the Equality Act dissolves decades of women’s achievements overnight.”

Medical entities and workers, from doctors to nurses to technicians, would be required under the Equality Act to provide, perform or participate in sex- or gender-related treatments, even if they claimed a sincerely held religious or professional objection, ADF says. And insurance plans would be forced to cover such treatments with no exemptions. 

As already is the case in many educational settings, teachers and professors would be required by federal civil rights law to respect a person’s gender identity by using preferred pronouns, regardless of given names or biological reality. That would even extend to private institutions, where a statement of faith or belief would be subordinate to federal statutes.  

Groups such as the Human Rights Campaign and individuals such as Denver software entrepreneur Tim Gill, who has reportedly spent $400 million pushing LGBTQ issues to politicians and influencers, wield enormous power in government, in corporate boardrooms, and in media and academia.

“A pastor of a large church in Atlanta told me that many of his members work for significant global companies in that city,” Chasteen says, “and they walk around petrified by the thought that someone might find out what their beliefs are about marriage. Silencing speech and suppressing thought is un-American.”

Andrew Walker, professor of Christian ethics and apologetics at The Southern Baptist Theological Seminary and a senior fellow at the Ethics and Religious Liberty Commission, says any legislator with an appreciation for the importance of religious liberty must oppose the Equality Act. 

“Or else,” Walker wrote in a post on the Gospel Coalition website, “with the stroke of a pen, pillars of human history—the ideas that marriage is a complementary union of a man and a woman, and that male and female are immutable, biological realities—would be thrown into the dustbin of history.”