There are few concepts as fundamentally American as equality … For more than two centuries, we have been working to fulfill that vision of equality. We have taken direct action as a nation so that our laws align more closely with these founding ideals. We have challenged unjust rules and destructive prejudices and chosen to advance basic civil rights.
Merkley introduced the Equality Act (S. 1858) in the Senate on behalf of himself and 39 other Senators. At the same time, Rep. David Cicilline (D-RI) introduced the same bill in the House on behalf of himself and 157 other representatives. Cicilline, who is one of seven openly gay House members, said, “Fairness and equality are core American values. No American citizen should ever have to live their lives in fear of discrimination.”
The Equality Act predominantly focuses on amending established federal legislation. In many cases, the terms “sex, sexual orientation and gender identity” would be added to the list of protected classes “joining race, color, religion and national origin.” The acts to be expanded or amended include, the Civil Rights Act of 1964, the Equal Credit Opportunity Act, the Jury Selection and Service Act, the Fair Housing Act, the Government Employees Rights Act of 1991 and the Civil Service Reform Act. Through these changes, lawmakers hope to establish and enforce a more equitable environment in various areas such as public accommodations and education; employment, housing, federal funding, juries and more.
The legislation is considered landmark, because it is wide-sweeping, rather than focused on any one particular area of society. In 1974, two representatives introduced a similar bill. House Bill 14752, also called “The Equality Act,” proposed expanding the Civil Rights Act to include “sexual orientation.” However, that bill never passed. Then in 1994, the idea was revisited, but only for the employment sector. That became ENDA, or the Employment Non-Discrimination Act, which has been lingering in Congress ever since.
After The Equality Act of 2015 was introduced, three corporations immediately announced their support, including The Dow Chemical Company, Levi Strauss & Co. and Apple Computers. Apple’s Tim Cook, who is the only openly gay chief executive officer of a Fortune 500 company, told the Human Rights Campaign:
At Apple we believe in equal treatment for everyone, regardless of where they come from, what they look like, how they worship or who they love. We fully support the expansion of legal protections as a matter of basic human dignity.
In March, The The Washington Post published an op-ed written by Cook, on a slightly different but related topic. He said, “There’s something very dangerous happening in states across the country. A wave of legislation, introduced in more than two dozen states, would allow people to discriminate against their neighbors.” He is speaking of the federal and state Religious Freedom Restoration Acts. Cook goes on to say, “These bills rationalize injustice by pretending to defend something many of us hold dear … This isn’t a political issue. It isn’t a religious issue. This is about how we treat each other as human beings.”The tide is certainly shifting, as suggested by the recent SCOTUS ruling, the push for anti-discrimination legislation across the states, growing awareness of transgender struggles, and even the recent proposed policy changes for the Boy Scouts. The RFRAs are seen as reactionary legislation to this cultural shift, and are, thereby, dragging religion into the socio-political spotlight as a shield against change.
For example, in June, Rep. Trent Franks (R-AZ) co-sponsored a bill called The First Amendment Defense Act, which was introduced in response to the SCOTUS marriage equality ruling. This bill seeks to “prohibit the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction…” with regards to same-sex marriage. He told U.S. World and News Report, “Religious freedom is something that is essentially the cornerstone of all other freedoms. If we lose it, the Founding Fathers’ dreams are lost.”
The new Equality Act addresses two important points regarding the protection of religious freedom. First, in regards to employment, the act makes no changes to the current religious exemption. It “would continue to allow religious corporations, associations, educational institutions, and societies to hire only individuals of a particular religion to perform work connected with their religious activities.” In other words, a Pagan-specific charitable organization or church would not be required to hire non-Pagans to “perform work connected with religious activities.” The Equality Act protects your right to religiously discriminate in those very limited and specific circumstances.
However, with that said, the new act also dives directly into the RFRA debate. In summary, the act reads:
The Religious Freedom Restoration Act (RFRA) cannot be used [as] a defense for individuals or entities to discriminate on any basis under any provision of existing law amended by this Act.
With this piece, the Equality Act goes beyond protecting only LGBTQ rights and also strengthens those of all minority classes. It essentially takes the wind out of RFRA sails, disallowing the use of religion as a shield from the law. The bill makes it very clear that RFRAs would not be able to be used to defend any act of discrimination “on any basis under any provision of existing law amended by this Act.” In this way, the Equality Act and the newly introduced First Amendment Defense Act are in direct conflict.
In a blog post, The Human Rights Campaign noted the same point, saying “While the act provides much-needed protections for the LGBTQ community in all 50 states, it would additionally strengthen protections for all men, women and racial, ethnic and religious minorities.” The deputy legal director of the American Civil Liberties Union agrees, calling the act visionary, historic and long-overdue.
While there does appear to be much support for the Equality Act, suprisingly some LGBTQ members and organizations are not rallying in support behind the congressional effort. An article in The Washington Blade illustrates why. In summary, there are those people who believe that “opening up” the Civil Rights Act of 1964 is dangerous, because it is a sacred piece of legislation specifically protecting racial discrimination. Others believe the Equality Act doesn’t go far enough in its protections. Still others are concerned with the lack of Republican backing. LGBTQ Republican Party members have expressed a feeling alienation, saying that the Equality seems to have been drafted as “a partisan cudgel [rather] than a pragmatic LGBTQ non-discrimination bill. by the lack of inclusion.”
While some opponents, outside of the LGBTQ community, do state a concern over privacy rights and federal government interference in industry, most fall back on the religious freedom argument as exemplified by the Rep. Franks statement above.
Regardless, many supporters speculate that the act is ultimately doomed due to the current political climate in Washington. Slate writer Marc Joseph Stern said, “The Equality Act, of course, will go absolutely nowhere … Still, it’s notable for two reasons.” Stern goes on to explain that the new act serves to keep the issues of equality central to current public discourse, while also “sounding the death toll” for ENDA, which is still limping along in legislative limbo.
Whether or not it does pass, the Equality Act, as noted by Stern, continues the discussion of LGBTQ rights and the realities of discrimination across social platforms and peoples; the potential need to revise older legislation to meet contemporary needs; and to highlight the potential dangers present in the RFRAs.