The American Anglican Council is very grateful to Richard Baker, of Mauck & Baker LLC and the Anglican Legal Society, for his permission to re-publish this article on our website. The original article was published on May 11, 2021 and can be found here on the Mauck & Baker website.
So God created mankind in His own image, in the image of God He created them;
male and female He created them. Genesis 1:27
HR5, the so-called “Equality Act,” passed the House in February, 2021 and is now before the Senate awaiting passage. If passed there, HR5 will surely be signed into law by President Biden who has pledged to make the bill one of his top priorities for his first 100 days in office. So what does it provide? In short, it proposes to amend various provisions of the Civil Rights Act of 1964 including Titles II, III, IV, VI, VII, and IX. Specifically, as the prologue says, its purpose is to “prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes” and would substantially expand the areas of public life to which the Act’s protections from discrimination apply, bringing the full power of the government down to enforce the law.
Dick Durbin, Chairman of the Senate Judiciary Committee, said of HR5: “Instead of discriminating against and marginalizing LGBTQ Americans and LGBTQ kids, we should be working toward a more inclusive America. That’s exactly what the Equality Act would help accomplish.” Its supporters say it’s necessary as the next step to address “bigotry” and “phobias” in our society. It will do so, they claim, by banning from the public life speech and acts that promote “hate” and can lead to violence.
As for bigotry and phobia, HR5 takes particular aim at what it labels as ‘religious discrimination.’ As Rep. Jamie Raskin of Maryland stated in defending the Equality Act before the House: “every scoundrel in American history has tried to dress up his or her opposition to other people’s civil rights in religious garb.” Specifically, with regard to the Religious Freedom and Restoration Act, (RFRA,) advocates claim that the Equality Act would keep religious persons, businesses or entities from using RFRA as a “license to discriminate.”
HOW WILL THE ACT ACCOMPLISH THIS NEXT STEP TO END DISCRIMINATION IN THE NAME OF EQUALITY?
Three key provisions of the bill outline what you might call the “who, what and where” of the Act.
- What: The Equality Act would add to the category “sex” the additional categories of sexual orientation and gender identity, thereby replacing the previous biological understanding of sex which involved male and female with one based on one’s own preference. It will also include new definitions of what constitutes ‘healthcare” to include abortion and transgender sex therapy.
- Where: The Equality Act calls for a vast broadening of the meaning of the term “public accommodation” to include almost everywhere where people gather.
- Who: While the Act would affect many groups including women; it targets, in particular, people of faith by denying them any claim of religious freedom and conscience when those claims apply to the protected classes of the Equality Act.
WHAT. Beginning with the “what’”, at its core, HR5 would change the Civil Rights Act of 1964 Act by adding to the category of “sex” sexual orientation and gender identity and thereby, in essence, outlawing the binary meaning of sex as male and female. As various commentators point out, while Equality Act would now expand the protected classes under the Act to “including sexual orientation and gender identity,” it defines neither of these terms. Under the LGBTQ+ understanding, “gender identity” is “fluid.” Fluidity here is actually arbitrary since one’s sexual identity is completely determined by what the individual wants it to be. So, as one attorney characterized the arbitrariness, a person might decide one day to be male and then a female the next day “according to which restroom line is longer at the ballpark, theater, or parish fish fry.”
HR5 also defines abortion as “health care” and with this in mind, outlaws “pregnancy discrimination.” Thus, access to “treatment” for pregnancy (abortion) cannot be any different from access to treatment for any other kind of health care or physical condition.
WHERE. As to the “where,” the act expands the term “public accommodation” to cover nearly every gathering of persons. Thus, HR5 vastly expands the Civil Rights Act’s definition of “public accommodation” to include any “place of or establishment that provides exhibition, entertainment, recreation, exercise, amusement, public gathering, or public display”; and “any establishment that provides a good, service, or program, including a . . . food bank, service or care center, [or] shelter.”
WHO. While greatly expanding the definitions of “sex” and “accommodation,” at the same time the Equality Act would remove the freedoms of those who oppose the mandates of HR5 on sincerely held religious grounds. The Religious Freedom Restoration Act (RFRA) is the federal statute that, as its name suggests, restored many protections of religious freedom under the Free Exercise Clause of the First Amendment after the Supreme Court removed them in the case of Employment Division v. Oregon. Under RFRA, when a law “substantially burdens” a religious practice or right, it can be challenged and will stand only if the government proves that the law was enacted to serve a compelling interest in the least restrictive manner. This is referred to as the compelling interest test and is difficult for the government to meet. In the words of Zachariah’s prayer in Luke 1, its effect has been for many to “to enable us to serve him without fear in holiness and righteousness before him all of our days.“
However, without actually repealing the RFRA, HR5 is designed render it impotent. HR5 provides: “the Religious Freedom Restoration Act (RFRA) shall not provide a claim concerning, or a defense to a claim under” the Act, nor “provide a basis for challenging the application or enforcement” of the Act. Thus, the Act renders void exemptions to generally applicable laws if the exemption would “permit discrimination against . . . persons who do not belong to the religion or adhere to the beliefs of those to whom the exemption is given.”
DISCRIMINATION IS BAD, SO WHAT ARE THE CONCERNS WITH HR5?
Why should we care? Writing about the bill after its passage by the House of Representatives George Weigel, a Catholic theologian and author stated:
So what did the House of Representatives do on February 25? By a vote of 224-206, the House decided to criminalize Genesis 1:27 by passing the “Equality Act,” a Newspeak misnomer reminiscent of George Orwell’s dystopian novel, 1984.
Specifically, Mr. Weigel is referring here to the teaching of Genesis 1:27: So God created mankind in his own image, in the image of God he created them; male and female he created them.
Mr. Weigel has further commented on the breathtaking impact of HR5:
Americans who care about free speech, the rights of conscience, religious freedom, freedom of association, the integrity of women’s sports, private spaces for women and girls, the independence of charities, open professional career paths, and quality health care for people suffering from gender dysphoria—the belief that one is trapped in the wrong body—should bend every effort to ensure that Mr. Schumer never gets those votes.
To this point, attorney Kenneth Craycraft, the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology concurs noting:
The bill is expressly designed to impose a controversial sexual-ideological scheme on the American public, and to forbid any religiously-based objections to that agenda.
This means prohibiting all disagreement and outlawing biological distinctions. And the “other purposes” include restricting the exercise of religion.
Matt Staver, an attorney from Liberty Council free, involved at the forefront of many of the cases defending religious freedom in this country puts it bluntly with regard to HR5:
This is a massive attack on people of faith. The far-reaching impact of this bill can be best described: … what you cannot do respecting race, you will not be able to do legally respecting LGBTQ.
In particular, the dismantling of Religious Freedom Restoration Act as a defense is just that, an attack on people of faith. RFRA to date has provided protection for people of faith against the Left’s all-out effort to eradicate the culture of ‘bias and phobia.’ As R.R. Reno, editor of First Things magazine and former professor of theology and ethics at Creighton University has pointed out, the removal of RFRA is part of the effort to: “destroy the “culture of homophobia,” which will mean Christianity itself insofar as Christians remain loyal to the biblical teaching on sex, marriage, and family… these activists don’t want any impediments to the use of state power to destroy “homophobia.”
SO WHAT ARE SOME OF THE APPLICATIONS UNDER THE REACH OF THE EQALITY ACT IF IT BECOMES LAW?
As these writers reflect, if passed into law, the Equality Act will do great damage to our society. Abigail Shrier, journalist and author, who testified before the Senate regarding HR5 lays out just a few of the implications for women, if this bill becomes the law of the land.
If a woman in your state commits a crime, should she be put in a correctional facility with biological males, some of whom are sex offenders, some of whom may have only begun identifying as female weeks earlier, all of whom could easily overpower her? If a preschool has a policy that only female teachers may accompany little girls to the bathroom and your daughter’s male teacher suddenly identifies as female, ought that teacher to have a legal entitlement to accompany her? Does that strike anyone in this room as safe or sensible? Should a female abuse survivor at a domestic violence shelter be forced to sleep and undress next to a biological male? The plain truth is that it is not sensible, not safe, and certainly not just, to end these hard won protections for women and girls in the name of equality.
Additional areas that the Equality Act will affect as enumerated by the Family Research Council include:
- Women and girls would no longer have privacy in publicly accessible bathrooms, locker rooms, showers, and even battered women’s shelters;
- Medical professionals could be ordered to perform abortions or procedures related to “gender transition” against their moral or medical opinions;
- Religious employers could be forced to offer their employees insurance coverage for procedures related to “gender transition” and abortion; and
- Churches and houses of worship could be prohibited from requiring that some
of their leaders and employees abide by their doctrines about marriage and sexuality;
- Frankly, it’s impossible to guess all of this bill’s terrible impacts until long after its passage, when the damage has already been done.
As for its ‘terrible impacts’ to religious organizations, Kenneth Craycraft further enumerates:
This language means that parishes, parochial schools, and other religiously affiliated institutions could be sued under the bill. In fact, it is difficult to conceive of any place or program outside a private residence that is not included in this definition.
Any Christian Youth Organization sporting event is a place of recreation and exercise. Every Christmas nativity scene is a public display. Every pregnancy counseling center is a service or program. Every diocesan-sponsored woman’s shelter and food bank is, a shelter and foodbank. If a church, mosque, synagogue—or any affiliated school, recreation center, or food pantry—provides any of these programs or services, it will be compelled to allow biological men, for example, to use the women’s restroom. Sports teams would be compelled to allow boys to use the girls’ locker room. Shelters for abused and battered women would be forced to admit males. And of course, girls would be forced to compete against boys in sporting events.
And Emilie Kao, director of Heritage’s Devos Center, in discussing the ways HR5 would affect every one of us, stated with regard to both public and private schools:
…it would affect every state and it would come from the federal government, so a few things would happen. Not only would we see the policies that we’re talking about in sports and the locker rooms, we would also see curriculum. One of the things that the Equality Act does, is it changes the title of the Civil Rights Act that was on desegregation of public schools. And by doing that, by adding gender identity as a protected class in that particular title, it’s going to open the door to a federal mandate of curriculum in K through 12 schools, both private and public, that will teach this destructive gender ideology to children, that will confuse them about their bodies, and that will teach a very politicized view of sexual orientation.
Of course, a law without teeth is a mere platitude as Hilary Clinton attested to in a campaign speech with regard to her pledge to equality in her bid for the Presidency in 2016:
Laws have to be backed up with resources and political will. And deep-seated cultural codes, religious beliefs and structural biases have to be changed.
The 1964 Civil Rights Act is anything but toothless. It has the full force and seemingly limitless resources of the federal government behind it. The Equality Act in essence equates sexual and gender identity with race. And so, R.R. writes with regard to the Civil Rights Act and the power of the Federal Government:
Our civil rights law is a powerful bulldozer designed to destroy all vestiges of racist culture. This enterprise of destruction has been supported by an extremely punitive public consensus. To be called a racist today is a powerful anathema. It is a career-killing, reputation-destroying accusation. As gay rights get incorporated into civil rights law and the supporting anti-discrimination social consensus, it too will seek to destroy institutions that “discriminate” and punish all expressions of dissent.
So looking more closely at what the Equality Act will actually do, for many of us a different picture of ‘equality and liberty’ emerges if the Equality Act is signed into law. Though seemingly forgotten, one of the original categories in the Civil Rights Act was the one that protects religion from discrimination. Since the ideas of equality and liberty are closely linked in American law, at its best, the idea is that of equality or liberty for all. Supreme Court Justice Kennedy’s famous definition of liberty from his majority opinion in Casey v. Planned Parenthood comes to mind here:
At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of life.
Only, as the Equality Act makes clear, not everyone’s concept of existence, of meaning of the universe and of the mystery of life are equal. Certainly not those whose concept of the Universe begins with a Creator who has created an ordered universe including male and female. Perhaps Professor Chai Feldblum, an Obama appointee to the EEOC, said it best in a 2010 law review article in assessing the position of religious freedom and LGBQ rights:
… where the rights of the LGBT community and people of sincere religious conviction conflict, “society should come down on the side of protecting the liberty of LGBT people.
So why should we care about the passage of the Equality Act now before the Senate? It is clear that, the Equality Act, in equating race with sexual and gender identity, is neither tolerant nor neutral towards those with religious convictions contrary to its guiding principles. It is not an end to discrimination, but a powerful tool put in the hands of an increasing hostile government animated by the excesses of the ‘woke’ culture bent on discriminating and marginalizing all who would oppose the ideology of the new regime. It reflects a view of discrimination like that of Ibram X. Kendi who sees ‘anti-racist’ discrimination as a perfectly legitimate tool to end racism:
The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.
But this should be no surprise, Cultural Marxists, like Herbert Marcuse have advocated for the political correctness called for in the Equality Act to advance their plan of cultural subversion for decades. For the likes of Marcuse, cultural subversion begins with silencing the words and images which support the cultural understanding of the oppressors. This is censorship that strikes at the heart of free speech, but as Marcuse writes:
… tolerance cannot be indiscriminate and equal with respect to the content of expression … you cannot protect false words and wrong deeds which demonstrate that they contradict and counteract the possibilities of liberation… society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake: here, certain things cannot be said ie: certain ideas cannot be expressed, certain policies cannot be proposed, certain behavior cannot be permitted without making tolerance and instrument for the continuation of servitude.
Thus, above all, people of faith, those who care about religious liberty and who’s ‘concept of existence, of meaning of the universe and of the mystery of life begin with the Creator,’ should be concerned about the passage of the Equality Act. As George Wiegel warns:
To the Left, equality means freeing those oppressed from the bonds of an oppressive society. And in the end, this will require “political will” or government cohesion. And here it is: the Equality Act is designed “to bring the full weight of civil rights law down on any religious institution—Catholic, Protestant, Jewish—that believes itself bound by Genesis 1:27. Which means that you are criminalizing biblical faith and the Catholic idea of the human person.