Controversial compromise

A Republican congressman on Friday introduced sweeping legislation he says will balance the rights of religious and LGBT people, advancing a controversial religious freedom approach.

The Fairness for All Act (FFA), introduced by Rep. Chris Stewart, R-Utah, would make sexual orientation and gender identity (SOGI) protected classes under the federal Civil Rights Act.

The bill would prohibit anti-LGBT discrimination in employment, housing, education, and public accommodations. That includes retailers, banks, and healthcare service providers. The bill also seeks to protect a measure of religious freedom, exempting churches and religious nonprofits from the anti-discrimination rules. But for-profit business owners would be subject to the rules, unless they have fewer than 15 employees.

Some LGBT and religious groups oppose the measure, saying they are skeptical such an approach will make headway in Congress.

Stewart’s bill marks a new phase in a yearslong process: It's the first time advocates of this approach have convinced a legislator to introduce such a bill in Congress.

The FFA approach has made inroads among some religious groups. Most notably, the Council for Christian Colleges & Universities (CCCU) and the National Association of Evangelicals (NAE) endorsed FFA last year. Following a backlash, NAE has since backed away from its advocacy and was noticeably absent from Friday’s press conference.

The main religious freedom groups driving the effort forward—the CCCU, the 1st Amendment Partnership, and the Center for Public Justice—have partnered with the American Unity Fund (AUF), a politically right-wing group that pushes LGBT rights. The Church of Jesus Christ of Latter-day Saints is the biggest proponent of the approach. The bill has also won the support of the Seventh-day Adventist Church.

CCCU President Shirley Hoogstra said in a statement to WORLD that the bill balances “the rights of the religious and LGBT communities in a comprehensive, balanced, and enduring way.”

Stewart’s bill hearkens back to the “Utah Compromise” a nondiscrimination law with religious exemptions that passed in the state in 2015.

“Neither side has to lose in order for the other side to win,” Stewart, who is Mormon, said at the Friday press conference announcing the bill.

Andy Crouch, a CCCU board member, said in an email to WORLD that FFA is a legislative response to the Equality Act, which contains no religious exemptions: “We urgently need a clear alternative to the Equality Act that protects the freedoms and dignity of all Americans. Just having it in the public record as a legislative alternative is worthwhile.”

The Equality Act would prohibit people of faith from claiming the protection of the Religious Freedom Restoration Act (RFRA) in litigation, effectively ensuring that an LGBT person’s claim of discrimination in the public square would win by default. In May, House Democrats unanimously voted to pass the Equality Act with the support of eight Republicans. Senate Majority Leader Mitch McConnell, R-Ky., has indicated he will not bring the act to the chamber’s floor for consideration.

The FFA approach is controversial among both major LGBT and religious groups. LGBT-rights organizations such as the Human Rights Campaign and Gay and Lesbian Alliance Against Defamation (GLAAD) oppose the bill. GLAAD tweeted, “Let us be crystal clear. We will NEVER compromise away the protections of every LGBTQ person from discrimination in order to satisfy those who wish to use religion as a weapon for discrimination.”

Leading religious conservatives have long opposed the idea of FFA. In 2016, more than 75 Christian leaders issued a statement calling the plan a “serious threat.” Signers included Princeton University’s Robert P. George, Southern Baptist leaders Albert Mohler and Russell Moore, Jeff Myers of Summit Ministries, several top Catholic bishops, and Franklin Graham of Samaritan’s Purse.

Last month organizations including the Heritage Foundation, Family Research Council, Ethics and Religious Liberty Commission, and Concerned Women for America sent an opposition letter to Republican House leaders. They say the bill does too much to extend SOGI protections to public accommodations—something the Utah Compromise did not touch.

Greg Baylor, a former CCCU board member and the leading higher education attorney for Alliance Defending Freedom, said he has “serious concerns about the harms [the bill] would inflict on a variety of vulnerable populations.” He explained that it would allow biological males to compete in girls’ sports and have access to girls’ locker rooms and bathrooms.

Some debate whether the bill would protect conscience rights of medical professionals who object to participating in transgender transition procedures or drug treatments. In response to my questions, Stewart’s office said the bill keeps RFRA in place and includes an accommodation allowing medical professionals to decline participating in transgender transitions. But groups like the Heritage Foundation say those protections aren’t explicit enough.

Jamison Coppola, legislative director at the American Association of Christian Schools, said any attempt to enshrine SOGI into federal law “[uses] the government to force one side to act in ways inconsistent with their deeply held beliefs.”

As of Friday, eight Republicans had co-sponsored Stewart’s bill, but no House Democrats pledged support. Supporters Friday did not say they had someone to introduce a twin bill in the Senate.

With the release of the bill, supporters also announced the formation of the Alliance for Lasting Liberty, co-chaired by Tim Schultz, president of the 1st Amendment Partnership, and Tyler Deaton with AUF. The group exists to push for the advancement of FFA legislation.

In an email to WORLD, Stewart said he is “anticipating a long conversation about this in the House of Representatives. This is not a bill that will be passed into law in 2019 … introducing the bill is just the start of an important process.”