Commentary: The Equality Act and how it could affect churches, religious organizations

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NOTE: This article is for educational purposes only. While the author is an attorney, the article is intended only to provide general information and a general understanding of the law, and does not provide specific legal advice. The information contained in this article should not be used as a substitute for competent legal advice from a professional attorney licensed in your state and tailored to your specific case.

More than half a century after Congress passed the Civil Rights Act of 1964, it remains one of the most important and influential pieces of legislation in American history. Among other things, the Civil Rights Act—which amended previous civil rights acts—outlawed discrimination based on race, color, religion, sex or national origin. The act is broken down into 11 titles.

Since creating this seminal nondiscrimination law, Congress periodically has passed additional legislation to offer similar protections based on other protected characteristics in certain contexts.

For example, in 1967, Congress passed the Age Discrimination in Employment Act to prohibit employment discrimination based on age. In 1990, Congress passed the Americans with Disabilities Act to prohibit employment discrimination based on disability. These acts were intended to offer similar protections to those offered to other protected classes under Title VII of the Civil Rights Act.

The Equality Act

In the legislature

In May 2019, the U.S. House of Representatives introduced the Equality Act. Similar versions of the Equality Act were introduced in 2015 and 2017. Unlike the 2015 and 2017 versions of the bill, which died in committees of both the House and the Senate, the 2019 bill passed the House of Representatives.

The 2019 bill is not a stand-alone piece of legislation like the ADEA or ADA. Instead, the Equality Act would amend the Civil Rights Act to add sexual orientation and gender identity as protected classes.

In the judiciary

In the landmark decision of Bostock v. Clayton County last summer, the U.S. Supreme Court held “an employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act. The Supreme Court ruled the language “because of … sex” in a Title VII context included sexual orientation and gender identity.

In one sense, the Equality Act seeks to apply this Supreme Court ruling to all 11 titles of the Civil Right Act. It also would add similar language to include sexual orientation and gender identity as protected characteristics under the Fair Housing Act (Titles XIII and IX of the Civil Rights Act of 1968).

In the executive branch

Though there has been little action regarding the Equality Act over the past two years, President Biden said passing the Equality Act during his first 100 days was a top legislative priority. Additionally, Biden signed an executive order the day of his inauguration directing the heads of all federal agencies to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that would be inconsistent with his administration’s policy to prevent and combat discrimination based on sexual orientation or gender identity.

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Based on the actions of all three branches of the federal government, it increasingly is clear sexual orientation and gender identity will be added as protected characteristics in most civil rights statutes. As a result, the method and means of adding sexual orientation and gender identity as protected characteristics is of critical importance to houses of worship, religious organizations and people of faith. These nondiscrimination rights will have to coexist with the free exercise of religion.

The Equality Act changes little for churches

Though in its current form the Equality Act would add new protected characteristics to the Civil Rights Act and Fair Housing Act, it also would leave the religious exemptions to those laws in place.

When it comes to discrimination claims, there is strong protection for churches in these laws. For example, under the Fair Housing Act, with certain exceptions, churches can give religious preference to those who share their faith when selling, renting or deciding who occupies a dwelling.

Under Title VII of the Civil Rights Act, many employees are prohibited from bringing a discrimination claim against a religious organization employer under a legal doctrine called the “ministerial exception.” These protections, built into the respective statutes, would not go away under the Equality Act.

Some of the changes regarding church employment are in place because of the Bostock ruling, and churches should be aware of them even if the Equality Act does not pass. When hiring a staff member who doesn’t serve an important religious function for the church—such as a custodial staff member—that employee may not fall under the ministerial exception. If the employee does not fall under the ministerial exception, the employee could bring against the church a claim of discrimination based on sexual orientation or gender identity.

Still, the Equality Act would bring some changes for churches. While churches are not generally considered places of public accommodation, they will need to remain vigilant in connecting the rental of their facilities to the church’s religious mission and behaving in a manner that doesn’t put them in competition with secular rental venues.

Concerns that churches no longer will be able to restrict what weddings take place in their facilities or restrict who can use certain bathrooms in the facilities are, for the most part, misplaced. Still, church leaders should be cognizant of the changes the Equality Act would bring to laws regarding public accommodations.

The Equality Act could mean big changes for individuals and parachurch organizations

Unfortunately, the Equality Act as currently written would roll back important protections for individuals and non-church religious organizations asserting religious protection from discrimination laws.

In 1993, Congress passed the Religious Freedom Restoration Act without a single opposing vote in the House of Representatives and only three opposing votes in the Senate. President Clinton signed the bipartisan and remarkably uncontroversial bill into law.

The RFRA protects the “sincerely held religious beliefs” of people of faith. Under the Equality Act, however, “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

In other words, the protections provided to individuals and religiously affiliated organizations under the Religious Freedom Restoration Act no longer would apply to Civil Rights Act and Fair Housing Act discrimination claims.

What happens next

Here are some realistic possibilities for what could happen next:

1. Despite President Biden’s insistence the Equality Act is a top priority, it’s possible the measure does not pass the Senate. There currently are 50 Republican senators and 50 Democrat senators. It may be not all senators vote along party lines and that some of the more moderate senators vote in favor of or opposition to the Equality Act.

2. The text of the Equality Act could be changed before the law is passed to remove the language that would damage protections afforded under the RFRA. Policy advocates already are contacting their elected representatives to request this change.

3. If the law is passed as it currently is written, it seems likely to face several legal challenges. While the protections afforded by RFRA are statutory, freedom of religion is not. Free exercise of religion is enshrined in the First Amendment. It’s possible courts may strike down certain parts of the Equality Act as unconstitutional.

John Litzler is an attorney and the director of the Church Law Division of Christian Unity Ministries. The views expressed are those solely of the author and should not be used as a substitute for competent legal advice from a professional attorney licensed in your state and tailored to your specific case.

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