Fairness for All: Caught between gender equality and religious liberty

The Fairness for All Act, designed to sort out the right to provide services or not based on one's faith, works as sentiment, but falls short as policy.

A woman holds up a sign as people gather outside of the Supreme Court while it hears arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case on Dec. 5, 2017, in Washington. (AP Photo/Jacquelyn Martin)

(RNS) — Tired of the culture war? Before the holidays, U.S. Rep. Chris Stewart of Utah introduced the Fairness for All Act, a good-faith effort to establish a truce.

Stewart’s bill would prohibit discrimination on the basis of sex, sexual orientation and gender identity — up to a point. Unlike the Equality Act, a measure that the House of Representatives passed in May, Fairness for All does not provide the above with “protected class status,” equivalent to race, color and national origin. Instead, it allows discrimination by those with religious objections — again, up to a point.

Fairness for All would allow religious institutions, including camps, religious retreat centers and funeral service providers “primarily” serving particular religious communities, for instance, to refuse to serve clients on the basis of sexual orientation and gender identity.

Likewise, the nondiscrimination rules under the FFA would not apply to anyone acting in a ministerial capacity or to mental health service providers “when the primary objective is to assist a person in entering or sustaining a marriage.” But the potential client would have to walk away with a referral to a provider who can supply the needed service, and that client would have to be treated if they were in imminent danger of harming themselves or anyone else.

As for those bakers, florists and photographers who object to same-sex marriage on religious grounds, they get to withhold their services providing they have fewer than 15 employees. The bill specifies that they do not get to do so when it comes to race, color or national origin; i.e., if they have religious objections to mixed-race marriage. Faith-based adoption and foster care services get an “indirect” funding program that permits them to retain federal funding while declining to serve same-sex couples.

Finally, faith-based service providers that receive federal funding would not have to suppress their opposition they might have to homosexual relations or transgender identity, so long as they do not exclude beneficiaries on those grounds. And they are required to provide beneficiaries who object to their opposition with referrals to acceptable alternative providers.

Though it is based directly on the so-called Utah Compromise of 2015, a similar measure that is now law in Utah, Fairness for All reawakens the spirit of George W. Bush’s faith-based initiative, which carved out space for religious nonprofits to receive government grants to provide social services without hiding their religious purposes under a bushel. Indeed, one of Fairness for All’s principal promoters, Stanley Carlson-Thies, played a major role in the Bush effort.

However, Bush’s faith-based initiative, which the Obama administration later largely embraced, was largely unloved. Liberals were convinced it erased important barriers between church and state, while conservatives saw it as opening the door to government control of religion.

So it is with Fairness for All. 

On the left, the Human Rights Campaign, together with a host of other gender and civil rights organizations, calls it “an affront to existing civil rights protections” that “would erode protections that already exist for people based on race, sex and religion, rolling back protections that have been on the books for decades.”

On the right, the Family Research Council contends that it is a “fallacy” to presume that there is “a balance or symmetry between ‘rights’ or ‘protections’ for people who identify as LGBT and ‘rights’ or ‘protections’ for people of faith.” The Alliance Defending Freedom claims it poses a threat to Americans’ “fundamental liberties.”

Support for Fairness for All comes largely from the center right: the National Association of Evangelicals, the Council for Christian Colleges and UniversitiesThe Church of Jesus Christ of Latter-day Saints. As a statement from the CCCU puts it:

Fairness for All seeks to allow us to both love our neighbor and preserve the mission of our institutions so that they can contribute to the good of the city, state, and country they are located in. And we hope that by not just fighting for ourselves, but by also using our political power and privilege to stand up for the rights of our LGBTQ neighbors, loved ones, brothers, and sisters, we can help reclaim the Gospel’s witness, reminding all citizens – including those holding views different from ours – that Christ and the good news he brought are for everyone.

The sentiment is laudable, but the actual compromise is problematic. 

To be sure, American society continues to accept some differential treatment based on sex and gender that it doesn’t when it comes to race and national origin. Same-sex restrooms and athletic teams are the rule, and private educational institutions can be gender-specific if they so choose. Men need to register for the draft but women don’t (for now, though a federal judge in Texas ruled otherwise a year ago).

Likewise, when it comes to religion, in 2012 the Supreme Court unanimously recognized an across-the-board “ministerial exception” that permits religious bodies to hire whomever they choose regardless of anti-discrimination laws so long as the job is ministerial. (Two cases this term will clarify what counts as “ministerial.”)

Yet it is a fundamental principle of constitutional law that the government cannot base policy on the substance of a religious belief. It can only determine whether that belief, whatever it is, is “sincerely held.” 

That principle is violated when discrimination is permitted based on beliefs about sexual orientation or gender identity but is not when based on beliefs about race — when, as Fairness for All provides, religious objectors to same-sex marriage can withhold services, but religious objectors to mixed-race marriage cannot.

No doubt there will be those — call them spiritual libertarians — who will follow the logic to the point of saying, well, then racial discrimination on religious grounds should be permitted. Not me. At least, not beyond the very narrow bounds of a worship community.

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