A wedding cake is seen at a reception for same-sex couples at The Abbey in West Hollywood, California, July 1, 2013. | Reuters/Lucy Nicholson
Two scholars shared conflicting views about a proposed compromise bill that would codify a ban on LGBT discrimination into federal law while protecting the religious freedom of faith-based organizations and individuals, with one warning that it has “the practical working out of driving religious freedom further and further to the fringes of society.”
In a Wednesday panel discussion hosted by the Religious Freedom Institute titled “Institutional Religious Freedom: Exploring Contemporary Policy Challenges,” scholars Stanley Carlson-Thies and David Trimble debated the merits and pitfalls of the Fairness for All Act.
The legislation is billed as an alternative to the controversial Equality Act. It would enshrine nondiscrimination protections for the LGBT community into law while establishing some protections for religious organizations that wish to abide by their traditional views about marriage and sexuality.
Introduced by Rep. Chris Stewart, R-Utah, the bill has attracted 21 cosponsors in the U.S. House of Representatives, all Republicans. It has yet to come up for a vote in the Democrat-controlled House, which instead passed the Equality Act. The U.S. Senate has yet to vote on the Equality Act, which is vehemently opposed by conservatives and religious liberty advocates.
The Fairness for All Act has gained the support of some prominent Christian organizations, such as the National Association of Evangelicals and the Council for Christian Colleges and Universities, but has also drawn criticism from Christian conservative advocacy groups who fear it will “codify a radical gender ideology.”
Carlson-Thies, the founder and senior director of the Center for Public Justice’s Institutional Religious Freedom Alliance, played a part in crafting the Fairness for All Act framework.
“The idea of the bill is to amend federal civil rights laws to do two things at the same time. One of them is, for the first time, offer general protection for LGBT people in civil rights laws, federal civil rights laws, but at the same time to expand the protections for religious exercise in religious organizations,” Carlson-Thies said.
He pointed to similar legislation in Utah, passed in 2015, as the inspiration for the Fairness for All Act. The federal proposal has secured the support of all four of Utah’s Republican Congressmen.
“Fairness For All requires proponents of LGBT civil rights to admit that people who disagree with them on a religious basis also have rights,” Carlson-Thies said. The bill also requires “proponents of traditional moral values to accept that, of course, there shouldn’t be invidious discrimination against people because they’re gay or transgender.”
The scholar, who served on the White House Office of Faith-Based & Community Initiatives during the George W. Bush administration and President Barack Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships, characterized the bill as an effort to “have civil rights law to protect [the LGBT community] in the right places as long as we also protect religious freedom, religious institutional rights.”
“And that would be the rights of people who have a different view about human sexuality and marriage, for example,” he said.
Carlson-Thies likened the management of conflicting interests between LGBT activists and religious organizations to the existing management of conflicting interests between various religious groups.
“Catholics, for example, with particular views about God, the world, human nature, relationships,” he said. “Muslims have other particular views about these things.”
“And both Catholics … and Muslims seek legal protection to be able to live consistently with their beliefs in their personal lives and through organizations, whether that’s houses of worship or schools and charities,” Carlson-Thies added. “But as with classical religious freedom, we have to accept that the government is not going to … establish our views as the correct ones although they’ll protect our freedom to exercise those beliefs.”
Trimble, the Religious Freedom Institute’s vice president for public policy and director of the Center for Religious Freedom Education, described the legislative effort as a “step in the right direction” but lamented that it “comes up short” with respect to “the central role that religious freedom holds in society according to our founders.”
“As we understand it today, sexual orientation and gender identity ideology as it is presented, understood and even proposed in … the current pieces of legislation, still represses religion,” Trimble, a lawyer who previously worked with the Washington, D.C.-based firm Van Scoyoc Associates, warned. “It in effect has the practical working out of driving religious freedom further and further to the fringes of society.”
Trimble argues that religious freedom is an “inalienable human right” from the First Amendment that “was not intended to be on the defensive.”
“And yet, I find it there, certainly within the Equality Act … even in Fairness For All, I find religious freedom on the defensive and this concerns me,” Trimble, who holds a master of divinity from Southwestern Baptist Theological Seminary in Texas, said.
“We seem to have adopted … a posture, an automatic defaulting to a posture of narrow exceptions for religious freedom, a kind of leave-us-alone mentality, a kind of siloed approach.”
Carlson-Thies predicted that if the Fairness for All Act became law, secular public schools would “take on the current view that there’s no moral difference between different forms of sexuality and marriage although the public institutions would be bound in some way to respect students and staff committed to traditional views.”
Carlson-Thies suggested there could be an “opt-out” in certain teaching modules so teachers would not have to affirm ideas they feel violate their religious convictions.
He stressed that the bill “would be very explicit that private religious schools would be legally protected in teaching not just about religion but about a conservative view of sexuality and marriage.”
“Of course, they would teach there’s a certain new legal definition, but this is what we think God says about sexuality and marriage,” he said.
“Fairness For All would guarantee that religious agencies can maintain their religious-based practices of selecting and certifying appropriate homes in placing children … but also making sure that LGBT people and couples have access to adoption and foster care services that will work for them,” he added. “And I mean not just say that they have a right but make sure through specific policies that there’s access.”
Carlson-Thies defended what he viewed as the most controversial aspect of the bill, which addresses secular companies with “religious and moral views” that “would like the company’s culture and practices to mirror those views.” Under the Fairness for All Act, a religious business owner “would not be able to fire somebody or refuse to hire somebody because they’re gay or transgender.” He justified this provision as consistent with “what we do with respect to religion right now.”
“The Muslim owner of a company, for example, cannot refuse to hire Hindus or evangelicals just because of the difference of religion. And a Catholic owner of a company has to reasonably accommodate the needs of Muslims, Seventh-day Adventists who have a different day of worship than Sunday even though that’s not the belief of the owner. So, I think that’s kind of what would happen here with Fairness For All.”
Carlson-Thies rejected the claim that “protecting LGBT rights in federal civil rights while also protecting religious exercise and religious organizations” amounts to “affirming the LGBT perspective.” He characterized the proposed law as “a way of protecting people who disagree with that perspective” and providing “a peaceful and safe way for people to live together despite being so far apart in their views.”
Trimble argues that if he is reading the First Amendment correctly, “the framers understood religious freedom as a core component of public life, a core component of our democracy, a lynchpin … that strengthens all of the other fundamental freedoms.”
He reiterated that while “Fairness For All gets us closer, it’s not there.”
“It still compromises this core role that religious freedom was intended to play from our founding,” he contends.
After classifying the legislation as a “very noble effort to correct the evisceration of [the Religious Freedom Restoration Act] that is part of the Equality Act,” he expressed concern that “it, unfortunately, mandates referrals that may violate conscience.”
Trimble states that the 2021 U.S. Supreme Court ruling Fulton v. City of Philadelphia, which found that Catholic Social Services had the right to refuse to place children with same-sex couples, could have had a different result if the Fairness for All Act had been law.
“If Fairness For All was enacted, … Catholic Social Services would have been required to provide or would be required to provide a referral for adoption services to same-sex couples,” he said.
“This concerns me … that the conscience of this institution, the religious freedom of this institution, would be trapped into providing a referral service,” Trimble added. He said the Fairness for All Act is another example of an approach “perpetuating a jurisprudential posture of narrow exceptions.”
He opined that the way of thinking at the center of the Fairness For All Act is “we always have to be looking and providing for an off-ramp for religious freedom” and expressed concern that “it’s getting stuck on the service road with this type of … jurisprudential approach.”
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