Fairness for All Act draws opposition from both sides
WASHINGTON – A new congressional proposal seeking to balance religious freedom and gay rights is a misguided effort that will fail to achieve its stated goals, according to the Southern Baptist Ethics and Religious Liberty Commission.
The Fairness for All Act, H.R. 5331, gained introduction in the House of Representatives Dec. 6 as an attempt to address the ongoing conflict between religious liberty and sexual liberty. The bill would prohibit discrimination against lesbian, gay, bisexual and transgender (LGBT) people while also guarding religious expression by institutions and individuals, Republican Rep. Chris Stewart of Utah said in introducing the legislation.
Some faith-based organizations endorsed the proposal, but the Ethics and Religious Liberty Commission (ERLC) and others expressed their opposition. Leading LGBT and civil rights groups also announced their disapproval.
ERLC President Russell Moore described the measure as "a wrong turn."
"There's no doubt that those proposing this approach mean well," Moore said in a written statement. "That said, legislation like Fairness for All is counterproductive and would undermine its own aims.
"Of course, every human being ought to be treated with dignity," he said. "Placing sexual orientation and gender identity as protected classes in this kind of legislation would have harmful, unintended consequences and make the situation worse in this country, both in terms of religious freedom and in terms of finding ways for Americans who disagree to work together for the common good."
Travis Wussow, the ERLC's general counsel and vice president for public policy, told Baptist Press in written comments, "We are in the beginning – not the end – of the national conversation about how Americans who differ on fundamental things can live together, be neighbors and genuinely care for each other."
The ERLC, Wussow said, "remains steadfast in our belief that religious freedom is an inherent right that secures the common good, and we will continue to oppose legislation that would undermine such a fundamental right."
In a news release, Stewart's office said the bill would amend the Civil Rights Act to protect LGBT people from discrimination in such contexts as employment, housing, adoption and places of public accommodation, including retail stores and service providers. Meanwhile, the legislation would preserve the Religious Freedom Restoration Act (RFRA) and protect the tax-exempt status of religious organizations and universities, according to his office. It also would safeguard small business owners from being coerced to violate their beliefs and protect adoption agencies, the release said.
"This legislation allows us to settle the legal questions and get back to the business of loving our neighbors," Stewart said in the release.
The text of the bill was not yet available on the congressional website as of Friday, Dec. 13.
An opponent of the proposal – Ryan Anderson, a senior research fellow at The Heritage Foundation – commended the "undoubted good will" of those behind the Fairness for All Act but said, "[N]ot every bill that calls itself a compromise is a good compromise.
"Its protections for religious liberty come at the high cost of enshrining a misguided sexual and gender ideology into federal law," Anderson wrote in a Dec. 6 post. "This will allow the federal government to use our civil rights laws as a sword to punish citizens who dissent from the reigning sexual orthodoxy. This is certain to create significant harm to the common good, especially for the privacy, safety, and equality of women and girls."
Anderson – who said he has dialogued with supporters of the proposal in recent years – said the bill's elevation of "sexual orientation" and "gender identity" to protected classifications in civil rights law "will cause serious harms." The class known as "sexual orientation" includes homosexuality and bisexuality, while "gender identity" refers to the way a person perceives himself regardless of his biology at birth.
If it were genuinely fair, the legislation would explicitly protect institutions seeking to guard the rights of women in athletics and female-only spaces from men who identify as a different gender, he wrote. Anderson also said the bill, if truly fair, would explicitly protect doctors from being forced to participate in "gender-affirming" care.
Alliance Defending Freedom and the Family Research Council also have expressed opposition to the legislation.
Among the organizations that have endorsed the Fairness for All Act are the Council for Christian Colleges and Universities, the Institutional Religious Freedom Alliance, the AND Campaign, the Seventh-day Adventist Church and the Church of Jesus Christ of Latter-day Saints (Mormons). Some law school professors known for their religious freedom advocacy – including Thomas Berg of the University of St. Thomas in Minnesota, Carl Esbeck of the University of Missouri and Douglas Laycock of the University of Missouri – have announced their support for the bill.
While some LGBT advocates are part of the coalition supporting the legislation, major gay rights organizations are foes.
The Human Rights Campaign – the country's largest LGBT civil rights organization – joined other gay advocacy groups such as GLAAD and Lambda Legal in a statement expressing "strong opposition" to the Fairness for All Act. Among other organizations signing onto the statement were the ACLU, NAACP and Americans United for Separation of Church and State.
"This legislation licenses discrimination while eroding the rights of people of faith," the organizations said in a joint statement. "It is wrong, and we strongly oppose it."
The Fairness for All Act is in some ways an alternative to the Equality Act, an expansive gay and transgender rights bill that opponents warn would devastatingly undermine freedom of religion, conscience and speech, as well as protections for women, girls and unborn children. The ERLC and many other religious freedom organizations oppose the measure.
The Equality Act goes so far as to eliminate the use of RFRA as a possible protection in cases covered by the measure. In 1993, Congress passed RFRA nearly unanimously as a corrective to a damaging Supreme Court ruling, and President Clinton signed it into law. RFRA requires the government to have a compelling interest and use the narrowest possible means in burdening a person's religious exercise.
The Democratic-controlled House passed the Equality Act in May, but approval in the Republican-majority Senate appears unlikely.
Written by Baptist Press, the official news service of the Southern Baptist Convention.