Legislating inequality

MARY REICHARD, HOST: Coming up next on The World and Everything in It: an assault on religious liberty.

Last week, Democrats in the House passed a controversial bill almost entirely down party lines. 

The so-called “Equality Act” would rewrite civil rights statutes to prioritize LGBT protections over religious liberties.

MEGAN BASHAM, HOST: Last year the Supreme Court extended sexual orientation and gender identity protections to cover employees in secular workplaces. 

But the Equality Act would further extend those protections to many other areas without adding religious freedom safeguards.

This isn’t the first time House Democrats have pushed this legislation. Lawmakers passed a virtually identical bill in 2019. But Republicans controlled the Senate then, and the bill didn’t stand a chance there.

Now Democrats have the slight edge in the upper chamber, and they’re prepared to try again.

REICHARD: Here now to help us understand exactly what is in this law and what it could mean for religious rights is Sarah Parshall Perry. She is a legal fellow at the Heritage Foundation. Sarah, good morning!

PERRY: Good morning! Thanks for having me.

REICHARD: This is aggressive legislation, is it not? What exactly would this bill do if it were to become law? 

PERRY: Well, we had a sense of what was coming in Biden’s sweeping executive order on Gender Identity and Sexual Orientation protections on the day that he was sworn in. What this actual bill does is it expands in federal law—in any context—the definition that the Supreme Court decided they would interpret for sex under federal law in Title VII—the Bostock vs. Clayton County, Georgia case—and unilaterally extend that to all federal references to the term “sex.” It also expands the definition of public accommodation whereas before it was a very narrow definition that was relegated strictly to things like courthouses and hospitals. This at this point is now extended to any particular good or service provider. So, you can imagine with the sweeping regulation, the sweeping impact of a bill like this, it’s not just Title VII that we’re talking about. But there are actually 59 substantive changes made to federal law under this version of the Equality Act. 

REICHARD: Obviously, this would affect religious liberties. How would you see that playing out? 

PERRY: Well, it’s interesting because the Supreme Court had demurred on the balance between religious liberty and SOGI rights. And, in fact, had the opportunity to consider that. But the petitioners at the Supreme Court level in Bostock decided not to raise their religious liberty rights on their appeal to the Supreme Court. So, the Supreme Court has yet to actually consider what the appropriate balance is between religious liberty rights and sexual orientation, gender identity protections. So, we are headed ultimately, I believe, for a showdown. And I do think when that time comes, it will be an individual who will have to raise this issue.

And they’ll have to raise that at the Supreme Court level to actually make the court determine what the appropriate balance is. Gorsuch in writing for the majority, the 6-3 majority in Bostock, sort of cavalierly waived off any considerations that might stem from other bills related to sex or sexual orientation and gender identity, saying we’re not addressing religious liberty, we’re not addressing bathrooms, locker rooms, anything of that sort. And was rather inviting future litigation on the issue. So, I do believe if the Equality Act becomes law, it will ultimately be headed to the Supreme Court. 

REICHARD: You’ve also written that in addition to religious Americans, there are two other groups this bill targets: biological women and parents. Explain what you  mean there. 

PERRY: Sure. Well, biological women we know being protected by Title IX in an interscholastic environment have been deeply impacted by their anxiety on the Equality Act and what it will mean for the future of sex separated sports. Back in 1972 when the educational amendments were passed specifically to protect equal educational opportunities for women, the purpose was to give biological females the opportunity to compete in their own athletic programs, understanding the physiological differences between men and women, that they are immutable, and that the simple changing of what you wear or the taking of hormones does not change your body’s biological DNA makeup. These are women who are now faced with the prospect of losing championships, titles, the opportunity to compete on sex segregated sports. So, the arena of athletics, Title IX obviously would be swept into the Equality Act. That would be something that would directly impact biological women. But it goes further than that because the Equality Act, expanding the definition of public accommodation, would now take, for example, your local neighborhood shopping mall and make all of the bathrooms gender neutral.

Religious Americans as well, obviously, deeply impacted by this. And one of the co-sponsors of the bill, Jerry Nadler, said that religious Americans can keep their ministerial duty religious protections. In other words, we envision that you can keep your religion within the church or the synagogue or the mosque walls, but don’t bring it out into the public sphere. And that is ultimately where we are headed for a showdown, I believe, at the Supreme Court.

We cannot coexist as religiously free Americans with the right to exercise religious liberty in all aspects of our lives with a bill like the Equality Act. 

REICHARD: Now, I understand this bill still faces an uphill climb in the Senate. Democrats have a slim majority, but likely not enough to overcome a filibuster? 

PERRY: Well, it’s hard to say at this point. We understand based on the composition right now we’re relying ultimately on some of those more moderate Republicans to defeat the Equality Act. Mitt Romney, for example, has already spoken on the fact that he believes the religious liberty protections are insufficient in this bill and so he will be voting against the Equality Act. If we come down to a tie, obviously, we’re dealing with Kamala Harris as the tie-breaking vote. We know which way she would come down. So I think there are some conservatives who are a little anxious about what the Senate portends. The uphill battle this year is not nearly as steep as it was two years ago.

REICHARD: Sarah Parshall Perry is a legal fellow at the Heritage Foundation. Sarah, thanks so much for joining us!

PERRY: Thanks for having me.

(AP Photo/J. Scott Applewhite) Advocates for the The Equality Act, a comprehensive nondiscrimination bill for LGBT rights, gather on Capitol Hill the day before the House Judiciary Committee holds a hearing on the legislation, in Washington, Monday, April 1, 2019. 

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