Bench Memos

Law & the Courts

Debate the Equality Act, but Tell the Truth About It

Rep. Deb Haaland holds a Transgender Pride flag beside democratic colleagues on Capitol Hill in Washington, D.C, February 25, 2021. (Tom Brenner/Reuters)

The issues raised by the Equality Act are serious and need open, honest debate. But the March 17 hearing on this bill in the Senate Judiciary Committee showed that serious legislative consideration is impossible unless we are honest about what, on its face, the Equality Act would do.

During the hearing, Alfonso David, president of the Human Rights Campaign, claimed that while the Equality Act would grant the right not to be discriminated against, it would not take any rights away from anyone. No one who has read the Equality Act could possibly believe that, let alone say so under oath.

To see why, we must first consider another relevant federal statute, the Religious Freedom Restoration Act (RFRA). It provides that a person whose exercise of religion has been substantially burdened by government action may go to court and “obtain appropriate relief.” The government must show that its action burdening the person’s religious exercise is “the least restrictive means of furthering [a] compelling government interest.”

Each of us, therefore, has the right to be free from all but the most necessary government burdens on our religious freedom. RFRA even states that “[f]ederal statutory law” adopted after RFRA’s enactment “is subject to this chapter unless such law excludes application by reference to this chapter.” We have this right to defend against government action that interferes with religious exercise unless Congress explicitly takes it away when enacting another statute.

Enter the Equality Act. It states that the “Religious Freedom Restoration Act…shall not…provide a basis for challenging the application or enforcement of” the Equality Act’s provisions. In other words, if the Equality Act became law, no one would be allowed to claim that its application or enforcement substantially burdens their exercise of religion. RFRA gave us that right, the Equality Act would take it away.

This is significant in several different ways. First, versions of the Equality Act dating back to 1994 included at least some language that protected religious freedom. Some of those versions even had a blanket exception for religious organizations. The current version not only drops any recognition of anyone’s religious freedom, but would deliberately prohibit any protection for that fundamental right whatsoever.

Second, this would be the first time in history that Congress expressly rejected RFRA’s application. Third, that rejection would extend to every area that the Equality Act covers: employment, housing, public education, government programs, credit, jury service, public accommodations, and public facilities.

To be clear, RFRA applies only when a burden on the exercise of religion is caused by government action and that burden is substantial. At that point, it’s up to the courts to apply the RFRA standard to resolve the conflict. RFRA, therefore, does not automatically exempt anyone from obeying the law. Nor does it always shield any particular religious practice or insulate any government action. It simply says that government may not burden the right to exercise religion any more than absolutely necessary. RFRA allows each of us to challenge the government when we believe it has crossed that line.

By contrast, the Equality Act would do what RFRA does not. It would deny even the opportunity to say that government action burdens the exercise of religion. It’s the very heads-I-win-tails-you-lose, all-or-nothing approach that Congress chose not to follow in RFRA. Congress is known to enact vague, confusing, and just generally messed-up statutes, but neither RFRA nor the Equality Act are among them on this point. What RFRA gaveth, the Equality Act would taketh away.

The meaning, application, and broader implications of the Equality Act are profound. Anyone, of course, is free to believe that it should always trounce the constitutional right to exercise religion and, of course, has the obligation to defend that position. But as we debate the Equality Act, we must at least tell the truth that this is what’s at stake.

Thomas Jipping is a senior legal fellow in the Edwin Meese Center for Legal & Judicial Studies at the Heritage Foundation.


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