Not so equal

High-profile religious liberty disputes have arisen across the country in recent years, from the case of baker Jack Phillips in Colorado to florist Baronnelle Stutzman in Washington state and from the corporate offices of Hobby Lobby in Oklahoma to the Miracle Hill Ministries adoption agency in South Carolina. Now a bill up for a vote in the U.S. House of Representatives this week threatens to blanket the entire nation with restrictions on religious liberty.

The so-called Equality Act would alter the Civil Rights Act of 1964, as well as other nondiscrimination laws like the Fair Housing Act, to add sexual orientation and gender identity to the list of protected classes and expand the definition of public accommodation. Though unlikely to make it through Congress, the bill lays out a roadmap for a dramatic reshaping of society—one that leaves much less room for religion in the public square and forces every organization to fall in line with the new sexual culture.

The changes would have vast repercussions, particularly related to three sections of the Civil Rights Act: Title II, which outlaws discrimination based on race, color, national origin, and religion in places of public accommodation; Title VII, which outlaws discrimination in employment; and Title VI, which outlaws discrimination by recipients of federal financial assistance.

The addition of LGBT identities to the list of protected classes has received much media attention, but the expansion of public accommodation under Title II is just as significant. The section as originally written included a very narrow definition of public accommodation, mostly limited to places such as restaurants and hotels that affected interstate commerce. But the new language would expand the definition to include any organization that provides a good, service, or program—essentially anyone who does anything in the public square at all. That makes all businesses, nonprofit groups, and organizations over a certain size subject to nondiscrimination guidelines for a lengthened list of protected classes, including homosexuals and transgenders.

“All of the problems that have arisen under state and local laws, like Jack Phillips, like Barronelle Stutzman, like the adoption agencies, and all the rest, will be multiplied, they will be reproduced on a national level,” Greg Baylor, senior counsel at Alliance Defending Freedom, told me. “We’ll have a lot more of these controversies if the Equality Act becomes law.”

The current version of Title VII bans discrimination based on religion but includes an exemption that allows any religious nonprofit organization to hire according to its faith tradition. But the Equality Act includes no such exemption, requiring religious nonprofit groups, schools, and even churches to hire people who do not share their beliefs.

While ministerial positions are basically protected by default in the United States, Baylor said, any other position, such as a church’s administrative staff, would be subject to the new rules under the Equality Act. He pointed out that many religious organizations and churches “require everyone on staff to sign a statement of faith, to comply with conduct standards, and all that would be jeopardized.”

In addition to not providing a religious exemption, the Equality Act specifically deprives anyone charged with discrimination of the ability to invoke the Religious Freedom Restoration Act, which was successfully used to defend religious employers in cases like the 2014 Hobby Lobby lawsuit against the Obamacare contraceptive and abortifacient mandate.

“The act itself takes the most effective shield available right now and takes it away,” Baylor said. “So then you’d be left to rely on straight constitutional arguments. The outcome of those cases is much more uncertain.”

If passed, the bill would also significantly affect private Christian schools. Religious universities with Biblical community standards regarding sexuality would not be able to receive federal funds. And because of the broadened definition of public accommodation, Christian schools and colleges could lose the ability to consider religion during the admissions process.

The bill also has implications for areas besides religious liberty. By adding sex to the list of protected categories into the public accommodation section, the act would essentially ban single-sex places like fraternities and sororities or even sex-segregated homeless shelters.

The Equality Act could come up for a vote in the House anytime this week, House Democrats said Friday. But even if it passes in the House, it is highly unlikely to succeed in the Republican-controlled Senate.

Friends in high places

In a court filing last week, the U.S. Department of Justice gave its support to Vermont parents and parochial high school students whom the state barred from a program that pays tuition for high school students to take college courses. While open to public school students, homeschool students, and students attending nonreligious private schools, Vermont’s dual enrollment program excludes students at private religious schools. The students and their families say the state is discriminating against them on the basis of their religion, and the Justice Department agrees. Its statement of interest in the case emphasizes that “the state’s eligibility requirements are not religion-neutral” but impermissibly and unconstitutionally single out religious students.

The Vermont case is the latest in an increasing number of religious liberty filings by the Justice Department under President Donald Trump. In May 2017, the president ordered all executive departments “to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.” Former Attorney General Jeff Sessions followed up with a memorandum on religious liberty principles in October 2017 and the establishment of a Religious Liberty Task Force and the Place to Worship initiative in July 2018.

Since then, the government has gone from filing one friend-of-the-court brief or statement of interest per year in religious liberty cases to five per year. The number of formal investigations by the Justice Department has also doubled from seven to 14 per year, and the agency’s Civil Rights Division handles many more matters that are resolved prior to becoming formal investigations. —Steve West

First Amendment survey omits religion

The recent Survey of Civic Literacy conducted by the American Bar Association (ABA) revealed some serious gaps in the public’s understanding of constitutional rights. Twenty percent of the 1,000 adults surveyed said freedom of the press is not in the First Amendment to the U.S. Constitution. A similar percentage said the right of people to peaceably assemble does not fall under the First Amendment.

Notably, the ABA did not survey attitudes toward another freedom protected by the First Amendment: the free exercise of religion. The survey was conducted as part of the group’s May 1 celebration of Law Day, for which the theme this year was free speech and press, so the First Amendment questions were limited to those areas, according to the ABA. When asked, the ABA could not provide any surveys or educational materials on religious liberty rights.

The ABA has addressed religious liberty, though not favorably. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, its Supreme Court amicus brief sided with Colorado against the freedom of Jack Phillips to decline to design a custom cake for a same-sex marriage ceremony because of his religious beliefs. Phillips won a narrow ruling in his favor last June. —S.W.

Execution stay clarified

The U.S. Supreme Court continued a debate Monday over a Texas execution that it stayed in March. The justices issued concurring and dissenting opinions in Murphy v. Collier, a case in which a Buddhist prisoner, Patrick Murphy, was denied access to his spiritual adviser in the execution room. The court originally ruled that Texas could not allow some chaplains of some religions (mainly Christians and Muslims) in the death chamber but not others. Texas then changed its policy to bar all chaplains from the execution room. Justice Brett Kavanaugh wrote in Monday’s opinion that the change “solves the equal-treatment constitutional issue,” clearing the way for Murphy’s execution, which has not yet been rescheduled. —S.W.

Transgender student intervenes

A transgender student has been allowed to join a lawsuit between a Christian professor and Shawnee State University over the Ohio university’s requirement that faculty refer to students using pronouns consistent with their self-asserted gender identity. Professor Nicholas Meriwether is suing the university for disciplining him because he declined to use a feminine courtesy title for a biologically male student, though he did offer to refer to the student by name only with no gender-specific title. The court’s order allowing the transgender student to become a party to the suit said the university would not adequately represent the interests of transgender students in the litigation. —S.W.