The unfairness of Fairness for All
Offered as a conservative compromise, the House bill represents a surrender
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One of the most contested flashpoints that separate conservative political leaders is a reluctance to engage on cultural issues in the public square. Last year, Arkansas Gov. Asa Hutchinson revealed this when he vetoed a bill that would have stopped teenagers from receiving puberty blockers that amount to chemical castration. In defending his veto (subsequently overridden by the state legislature), the Republican bemoaned the culture war pressing in on legislatures to “fight every battle by the state trying to change the culture” and characterized the bill as “extreme.” Hutchinson’s posture was characteristic of the deep ambivalence that exists within modern conservatism, as understood by its current elected representatives, even on the most pressing issues of the day, particularly those implicating the LGBT agenda.
This ambivalence is costly and cascading. It leads those public officials most naturally disposed to defend a traditional way of life, based on principles anchored in truth, to abandon certain fights altogether. But it also leads to unwise settlements, purported as compromises protecting all parties’ interests, that cede the entirety of what is at stake.
Take the so-called Fairness for All Act. The bill in the U.S. House, authored by Rep. Chris Stewart, R-Utah, with 21 Republican cosponsors, would offer protections related to sexual orientation and gender identity under the Civil Rights Act, whereby any differing treatment would constitute unlawful discrimination. The twist is that it also attempts to provide religious liberty protections for churches and religious organizations. But these protections are both inadequate to people of faith and unjust to the entirety of society overall. The Fairness for All Act exchanges robust constitutional protections for statutory exemptions. That’s not a compromise—it’s a surrender.
There are three main objections to the bill.
First, the religious liberty protections extend only to explicitly religious organizations. The protections are based on a fallacy that faith is practiced only within the walls of a church and not in communities with routine decisions of conscience. A Christian doctor would have no protection against refusing to facilitate a “gender transition.” A Christian business owner with more than 15 employees would have no protection of the right to designate space (such as restroom facilities for males or females only). A Christian baker would certainly have no protection against refusing to bake a wedding cake for a same-sex marriage.
Second, the bill presumes that only people of religious faith deserve protection when all individuals should be able to live in a society that acknowledges the truth of biological differences between men and women. All parents should be secure in sending their daughters into a restroom at a department store without worrying that males are inside. All battered women should be comforted in knowing that males are not receiving shelter in the adjacent bed or room. All medical professionals should have the privilege to acknowledge biological reality in treating their patients—and doing their work without fear of reprisal. There are profound issues of privacy, security, and conscience that affect all individuals in society. The Fairness for All Act would unjustly violate conscience without recourse.
Third and perhaps most profoundly, Fairness for All is based on an untruth that rejects human beings as created distinctly male and female with biological differences that cannot be erased and that matter for the proper ordering and health of society. The bill extends the legal protection of our nation’s anti-discrimination laws—in which violations are assumed to reflect bigotry and animus—to a modern secular worldview that says you are what you feel you are and the rest of society must simply adjust to avoid psychological trauma.
This development would lead to the situation in which our nation’s laws would lie to the American people about what it means to be human and to flourish, and it would have profound ripple effects throughout society.
For months, the passage of a more extreme version of the Fairness for All legislation—the Equality Act—has been stymied in the U.S. Senate due to the filibuster’s requirement of 60 votes. The Equality Act does not even allow for a religious exemption. The danger is that it will be claimed that a failure to pass the Equality Act makes the Fairness for All bill the basis for a compromise that might extract enough Republican votes to pass in the Senate. That is why Rep. Stewart and others are working so hard to find a sponsor to introduce companion legislation in the upper chamber.
These efforts must be rejected, and congressional Republicans would be wise to remember that the culture wars cannot be avoided. Those pushing a cultural revolution are ever on the offensive. Compromise and fence-straddling are simply not plausible. Let’s send that message clearly.
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