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This afternoon the Church of Jesus Christ of Latter-day Saints issued a statement opposing the proposed federal “Equality Act.”

BACKGROUND ON THE EQUALITY ACT

I read the entire Equality Act this afternoon. The Equality Act’s principal purpose is to amend the Civil Rights Act of 1964, and other federal civil rights provisions, to clarify that sex discrimination includes sexual orientation/gender identity discrimination. This effort is timely. Whether “discrimination on the basis of failure to conform with gender stereotypes” constitutes “sex discrimination” is a question courts have wrestled with for decades. The U.S. Supreme Court last month agreed to decide it. Like legislatures often do, Congress is trying to solve any ambiguity surrounding the interpretation with explicit clarification.

While on the subject of sex-discrimination-related-problems, the Equality Act also:

expands protections against pregnancy discrimination;

clarifies that “retail establishments” and “places of public accommodation” include online shops, transportation providers, and other professional services; and

forbids application of the federal Religious Freedom Restoration Act as a defense to sex / LGBTQ+ discrimination.

REACTION TO THE CHURCH’S STATEMENT

With that background, I have four major disputes with this afternoon’s statement.

First, the statement’s timing is odd. The Church appears to have issued it today because the Equality Act bill cleared House committees last Friday and is likely to now proceed to a vote before the full House of Representatives. However, the Bill will likely die in the Republican-controlled Senate. I’m not sure why the Church thought it was wise to expend precious political capitol weighing in at all, much less right now before a Democratic-controlled House.

Second, the statement unnecessarily qualifies LGBT rights. The Church’s statement supports “fair” and “appropriate” access to public accommodations, “reasonable” non-discrimination measures, and “basic” civil rights for the LGBT community. This minimizing language makes it clear the Church views the LGBT community as somehow “less-than” even in secular American life. As evidence, contrast the statement’s qualifiers with the Church’s descriptions on religious freedom, which label religious rights (including in public accommodations) as “fundamental,” “essential,” “inviolate,” and “universal.” Notably, while the Church has acknowledged that limited restrictions on religious freedom are appropriate in order to protect “life, property, health, or safety” the Church ranks efforts to combat discrimination in a different class, dubbing them “as an excuse for abridging religious freedom.”

If the Church is aiming for a “balanced” and “fairness for all” resolution to conflict between the LGBT community and conservative religious practice, it should engage in respectful dialogue by assigning the civil rights interests at stake equivalent rhetorical weight.

Third, the statement kindles the very conflict it condemns. The Church’s statement frames the Equality Act as part of an “ongoing conflict between religious liberty and LGBT rights” that is “poisoning,” “eroding,” “devastating,” and “destroying” religious freedom while “polarizing” and “sharpening” divisions in society. There is no need for that verbiage. If the Church’s goal is to support a “balanced,” “fairness for all,” “compromise” approach, it should lead by proposing “balanced,” “fairness for all,” “compromise” solutions without invective.

The Church knows how to do this: it’s exactly what the Church applauded and explained with the March 2015 anti-discrimination legislation in Utah. (That legislation is not perfect, but it does reflect a good-faith compromise focused on exempting religious-mission institutions and small businesses from anti-discrimination provisions that were being issued throughout the state.)

Fourth, the statement misstates what the Equality Act does.

The Equality Act largely represents a statutory formalization and clarification of existing law. The majority of courts agree that civil rights legislation banning sex discrimination applies to various forms of LGBT discrimination. Both the Constitution and most federal civil rights laws already contain explicit religious exemptions to their provisions — and these religious exemptions have been endorsed and robustly applied by the U.S. Supreme Court — starting in an 1987 employment case won by the Church! The U.S. Department of Education has never denied a religious exemption, including exemptions claimed by BYU to discriminate in admissions, housing, hiring, student discipline, etc. on the basis of sex, gender, dress code, chastity, marital status, pregnancy, birth control use, and other actions not in accordance with the BYU Honor Code and teachings of the Church.

The Equality Act affects none of that. The Church’s statement that “the Equality Act provides no protections for religious freedom” is a mischaracterization of what the Equality Act does. The Equality Act doesn’t need to provide express protections for religious freedom because those protections already exist within the exact same sections of the civil rights laws the Equality Act proposes to amend.

For simplicity sake, I roughly annotated the Church’s primary paragraph of concerns with the core legal provisions that currently protect them.

Separately, the Church’s statement condemns the Equality Act’s “Religious Freedom Restoration Act” carve-out, characterizing it as a “repeal” of “long-standing religious rights.” This isn’t accurate. RFRA is a religious bonus that has existed for only 25 years. RFRA is not a U.S. Constitutional requirement. The debates surrounding RFRA’s passage did not seriously contemplate its application to suits between private parties as a way to override the anti-discrimination provisions of the Civil Rights Act. Moreover, the majority of scholars to have considered the question agree that attempts to apply RFRA to discrimination cases will fail, because legislation to combat invidious discrimination constitutes a compelling governmental interest sufficient to override RFRA’s religious protections.

(The complicated interplay of RFRA and the First Amendment’s religion clauses and how their interpretations may change before a re-energized conservative Supreme Court are outside the scope of this post. But for a primer, here’s something I wrote on the Indiana RFRA debate in 2015.)

In short, the Equality Act provides an easier path for LGBT individuals to prevail in their discrimination cases, but it’s not changing the status quo with respect to religious institutions much at all. Of course, the Church’s opposition may be grounded in the anticipation that the status quo is about to change. The Church may anticipate that a re-energized conservative Supreme Court is poised to curtail LGBT civil rights progress, and as such the Equality Act would operate to block a robust victory for religion over the LGBT community. If that’s the calculus, however, that doesn’t feel like a sincere “compromise” position.

A CONSTRUCTIVE PROPOSAL

I appreciate the Church’s concerns that protections for LGBT individuals may impinge upon their religious liberty. I think those concerns are overstated, but I respect the Church’s First Amendment right to advocate for that position. If it’s going to weigh in at all, I believe the Church could have issued a better-crafted statement to achieve its “balanced,” “compromising” goals.

I suggest that next time this topic arises, the Church may want to consider issuing something like the following statement instead: