On Saturday morning, Hillary Clinton addressed the nation’s most influential gay-rights lobby, the Human Rights Campaign. It was a calculated appearance. Fearing that potential candidate Vice President Joe Biden’s Saturday-evening speech to the same group might outpace her own record on gay rights, Clinton took to the podium to assure Human Rights Campaign staffers that a Clinton presidency would be fully committed to the advancement of gay rights.
In her address, Clinton told those in the audience of her support for the Federal Equality Act (more on that below), a piece of legislation that signals the next wave for gay rights after the Supreme Court’s Obergefell ruling, which nationalized same-sex marriage.
If you’ve paid attention to the national conversation on religious liberty of late, these assaults on constitutional principles like religious liberty and settled public policy like RFRA don’t come as a shock. They are, sadly, representative of the vaporizing effects of those who, to quote Justice Alito in his dissent in Obergefell, desire to “stamp out every vestige of dissent.” They also, however, offer a crystal-ball view into the future of religious liberty should Clinton win the presidency.
It shows, more than ever, the need for legislative counter-measures to protect religious liberty.
As I noted above, in her speech, Clinton expressed support for the federal Equality Act. The Equality Act, as I’ve written elsewhere, is, to date, the most expansively threatening piece of legislation ever proposed, one that would deliberately take aim at religious liberty and jeopardize the integrity of religious institutions. To complicate matters even more, the Equality Act goes out of its way to state that no appeal to RFRA can be made if someone alleges religious-liberty infringement. Flying under the banner of non-discrimination protection, the Equality Act would add the categories of “sexual orientation” and “gender identity” (SOGI) to the list of similarly protected categories found in the 1964 Civil Rights Act. It would, in effect, make contested categories statutory and beyond debate.
Why is this problematic? Sexual orientation and gender identity are unlike other categories protected in the Civil Rights Act because they are not apparent. These categories are known only in conduct and self-identification. Furthermore, they are non-immutable, and hard to define concretely. No one is saying that sexual orientation should be a factor, for example, in employment and public accommodation. But the very nature of the category itself is problematic. To make non-discrimination protection based on uncertain categories subject to varying interpretation is unwise.
Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to taxexempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
[Solicitor] General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.
“It is going to be an issue.” Never has a government lawyer been so forthcoming.
Aside from the letter of the proposed law, the spirit of the Equality Act is equally problematic. The Equality Act advances the concept that those who disagree with contested court opinions or contested policy matters are now liable for penalty or punishment. Writing at Christianity Today, noted legal scholars Richard Garnett, John Inazu, and Michael McConnell made a very interesting observation about the absurdity and harm that issue from the proponents of government orthodoxy on sexual matters. Alluding to New York Times columnist Mark Oppenheimer’s suggestion that the government should remove tax-exempt status for “organizations that dissent from settled public policy on matters of race or sexuality” they write that:
Mr. Oppenheimer failed to acknowledge that in a pluralistic and democratic society, government routinely recognizes the tax-exempt status of organizations that differ from “settled public policy.” For example, not that long ago, the Human Rights Campaign was tax-exempt when it differed from settled policy on matters of sexuality; the same is true of organizations, like the Sierra Club, who push for changes in environmental regulation, or anti-war groups, who oppose US military policy. One of the principal purposes of civil society organizations is to challenge “settled public policy.”
That is a keen observation, and one that decisively demonstrates how egregious the Equality Act is in its overreach. The Equality Act is liberalism’s masthead for intolerance and indifference to the variegated nature of civil society.
The uncontroversial belief that children need access to a loving mother and father is now evidence of irrational prejudice and bigotry.
At present, and with the unlikely halt over concerns related to religious liberty and gay rights, legislation that would counter the effects of the Equality Act has been introduced. The bill is titled the First Amendment Defense Act, and its purpose is simple: It would prevent “discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.” In short, it protects individuals and institutions from any adverse action that the government could take if it adopts the principles like the ones seen in the Equality Act. In particular, it would protect tax status, accreditation, employment, certification, and a number of other entitlements for those with traditional beliefs about marriage.It’s the exact type of legislation that needs to be enacted to protect individuals and institutions from the type of coercion that Secretary Clinton promises. In her remarks to the Human Rights Campaign, she said that a refusal to allow same-sex couples to adopt is “anti-gay bigotry.” The uncontroversial belief that children need access to a loving mother and father is now evidence of irrational prejudice and bigotry. And Clinton promised that as president, she would cut off funding for any adoption agency that does not place children with same-sex couples. The implication is clear here: If adoption agencies are unwilling to run themselves according to federal standards, the government can penalize them by challenging an agency’s tax status and funding stream.
The First Amendment Defense Act protects religious freedom, pluralism, and common sense — three things we can’t have under assault if America is going to live up to its long-cherished ideals.
— Andrew T. Walker serves as director of policy studies for the Ethics and Religious Liberty Commission. @andrewtwalk