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Equality Act Takes The Road To Coercion

By Richard A. EpsteinHoover Institution

One centerpiece of the Biden administration’s legislative agenda is HR 5, the Equality Act of 2021. Its central move is to expand the definition of sex discrimination to include discrimination on the basis of sexual orientation and gender identity. That expanded definition of sex discrimination is coupled with a broader definition of public accommodations that includes “places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services.” The legislation, moreover, allows the Department of Justice to intervene in cases of discrimination based on sexual orientation and gender identity, to add its clout to private claimants.

Proponents of girls and women’s sports and religious liberty have issued powerful objections to this expanded definition of sex discrimination. The Act would permit biological males who self-identify as female to participate in girls and women’s sports. Critics, pointing to the dominance of transgender girls in state track and field meets in Connecticut, insist this move comes at the expense of biological girls and women who are unable to compete successfully for medals and scholarships against their biologically bigger and stronger competitors.

In addition, the act contains no explicit exemption for religious organizations that accept the traditional biological definitions of sex in running their own institutions, including single-sex educational and recreational programs. And the act could exclude these programs from receiving federal support for school lunch programs. Indeed, those religious organizations could no longer rely on the strict-scrutiny standard of the Religious Freedom Restoration Act of 1993, but instead would be subject to the more forgiving standard articulated in Employment Division v. Smith (1990). This means that any facially neutral law will bind religious organizations even if they suffer far more serious harms from the prohibition, which in Smith took the form of criminalizing Smith for using peyote for sacramental purposes at a bona fide ceremony of his Native American Church. 

Neither of these objections, however, cut much ice with supporters of the Equality Act. After a short debate in the House, the act was passed on February 25 by a vote of 224-206, where all Democrats and only three Republicans voted for the bill. Its fate in the Senate, however, remains uncertain. West Virginia Senator Joe Manchin—often the tie-breaking vote in the 50-50 Senate—is the lone Democratic holdout and has expressed serious misgivings about the legislation. Even his vote would not let the bill pass without a change to the filibuster rule requiring sixty votes to close debate on any legislative measure.

The Democrats’ monolithic front is disheartening for its willful blindness to opposing arguments. One point commonly made in the act’s favor is that the legislation has the “overwhelming” support of the LGBTQ population, typically by majorities in excess of 70 percent. Properly understood, however, that fact offers yet another reason to oppose the legislation. People who abhor discrimination on the grounds of sexual orientation or gender identity are unlikely to practice it in their businesses. And while the Equality Act stresses the persistent discrimination faced by LGBTQ communities, it does not address the movement’s political and cultural power, nor the vast number of public and private programs dedicated to the protection and advancement of LBGTQ and gender-identify claims.

Why then should this powerful group impose its will on the small fraction of firms and organizations that dissent from its dominant ethos? The Equality Act, for example, pays no attention to the precarious position of many evangelical Christian groups. In a footnote of United States v. Carolene Products (1938), famous in legal circles, the Supreme Court articulated a test requiring that extra constitutional protection be afforded to those “discrete and insular minorities” unable to protect themselves through normal political processes. The insular minorities of today are not the same as those of 1938.

Take Jack Phillips, purveyor of the small Masterpiece Cakeshop who has been sued for his unwillingness to make cakes celebrating same-sex weddings, for that would be inconsistent with his religious beliefs. It is easy to say that the availability of alternative bakeries does not address the “dignitary” interests that are compromised when gay couples are denied service on religious grounds. But what of the dignitary interests of this baker, who has been hounded since he first refused in 2012 to make a wedding cake for a same-sex couple?

Phillips—whose case went to the Supreme Court, where his religious liberty rights were partially vindicated—was treated with contempt by the Colorado Civil Rights Commission. In essence, the court sent the case back to the Colorado Commission, which had previously insisted that Phillips could not rely on his bona fide religious beliefs in a commercial context, given that, in its view, freedom of religion has been used to justify the “Holocaust.” This is sloppy reasoning and worse history: the more accurate account is that during the Holocaust, vicious groups deployed dogmatic hatreds to justify the use of force to suppress the religious and ethnic liberties of others. The tragedy of Nazi oppression was not the refusal of bigoted Germans to deal with Jewish customers or merchants. It was the brutal use of public force against the Jewish minority.

Defenders of the Equality Act forget or suppress such historical realities in their partisan appeal to some supposed notion of freedom and equality. Thus, President Biden said that the act represents “a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all.” National LGBTQ groups echoed the same theme by hailing the Equality Act as “a major milestone for equality,” which will “finally allow LGBTQ Americans the ability to live their lives free from discrimination.”

These high-minded pronouncements should not blind us to the explicit discrimination that is baked into the proposed law. How can it be “equality and freedom for all” if devout Americans find that their business and religious practices suddenly expose them to criminal sanctions, after which they will be taxed to support government programs from which they are systematically excluded? The president and his supporters seem to forget that the only form of universal equality gives all individuals ample room to decide with whom to associate and why. That principle is not satisfied if religious individuals cannot refuse to deal with gay people while gay people are allowed to refuse to deal with them.

Just such an imbalance was thrown into high relief in the two concurring Masterpiece Cakeshop opinions of Justices Elena Kagan and Neil Gorsuch. In evaluating Phillips’s case, the Colorado courts had cited an earlier episode in which bakers were allowed to refuse service to a customer requesting a cake quoting a biblical declaration against homosexuality on the grounds that those remarks were “offensive.” Justice Gorsuch used this example to insist on the parity of the two situations. He argued that in both cases, bakers “refused service intending only to honor a personal conviction” and were otherwise happy to sell to gay or religious persons, as the case might be. Justice Kagan, however, argued that the gay bakers were within their rights even though the basic statute also prohibits discrimination on the grounds of religion.

Discrimination on grounds of religion is supposedly covered by the Equality Act, but in practice, the act is being read to reject any two-way street based on a universal principle of equal liberty for all and displays an utter want of parity between parties who fall on the opposite side of the civil rights divide. The modern civil and LGBTQ rights movements use the language of “subordination” and “marginalization” to support their cause, but those terms should also be applied to religious minorities who are discriminated against by the very organizations who march under some false banner of universal rights.

There is, to be sure, an important exception to the general rule of freedom of association whereby common carriers and public utilities, owing to their monopoly position, are under a duty to serve all takers. That is, firms must provide fair, reasonable, and nondiscriminatory terms to all people in the provision of standardized services like rail transportation, gas, and electric power. The underlying notion here is that the monopolist holds too powerful a position when there are no alternative sources of supply. But that exception has no application to firms that operate in competitive industries. The original understanding of a business that is “affected with the public interest” is hopelessly overbroad when the term public accommodation applies to every business, including religious institutions, wholly without regard to their market power.

This basic confusion is further evident in the recent remarks that Senator Charles Schumer made in promoting these false claims of universal freedom and equality. He notes that this “legislation is personal for me and for millions of American families across this country. Just six years ago, LGBTQ Americans like my daughter won the legal right to marry who they love.” But he misses the key distinction between the right to live your own life as you see fit and your right to force those individuals with whom you disagree to supply you with services against their own conscience. The fundamental premise that each person ordinarily has the right to associate with whom they choose does not miss a beat when it is carried over from market arrangements to intimate associations, marriage included. The fact that other individuals find these practices abhorrent only lets them refuse to attend the ceremony, which is why same-sex marriage deserves legal protection. But it is a huge leap from that position to claim that you have the right to force, as a matter of law, people like Jack Phillips to support your activities by taking steps counter to their fundamental religious beliefs.

Religion, like all other belief systems, can be used to defend liberty or to deny it. The same is true of the new crusaders behind the Equality Act. The great tragedy of the misnamed Equality Act is that its ardent supporters are blind to the difference between living your own life and making others bow to your command. And a lot of innocent people will be caught up in the undertow of that progressive mistake.


Secretary Of Education Betsy DeVos Issues Final Rule Protecting Religious Liberty On College Campuses

By Jordan DavidsonThe Federalist

Secretary Of Education Betsy DeVos Issues Final Rule Protecting Religious Liberty On College Campuses

The Department of Education published a final rule Wednesday that expands religious liberty protections on college campuses and allows DOE to suspend or cut federal funding from colleges that violate the First Amendment.

Known as the “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities” final rule, it ensures the equal treatment of religious student groups at public universities, and “provides clarity for faith-based institutions with respect to Title IX.”

“This administration is committed to protecting the First Amendment rights of students, teachers, and faith-based institutions. Students should not be forced to choose between their faith and their education, and an institution controlled by a religious organization should not have to sacrifice its religious beliefs to participate in Department grants and programs,” said Secretary of Education Betsy DeVos.

If public universities fail to give religious student groups the same rights as other campus organizations, such as use of campus facilities and access to student fee funding, they could lose federal funding.

The final rule also seeks to promote “free inquiry” and to protect “academic freedom” on college campuses. “Denying free inquiry is inherently harmful at any institution of higher education because students are denied the opportunity to learn and faculty members are denied the opportunity to freely engage in research and rigorous academic discourse,” the rule reads.

In extreme cases of First Amendment violations, DOE can determine a university is ineligible for future grants. Private universities can also face the same consequences if found violating their own speech codes.

“These regulations hold public institutions accountable for protecting the First Amendment rights of students and student organizations, and they require private colleges and universities that promise their students and faculty free expression, free inquiry, and diversity of thought to live up to those ideals,” DeVos explained.

While the final rule claims that universities must allow for differing ideas and viewpoints on campus, it also gives private or religious institutions the freedom to adopt their own speech standards, so long as they comply with them.

“Religiously affiliated institutions, in freely exercising their faith, may define their free speech policies as they choose in a manner consistent with their mission,” the rule states.

The rule also states that “religious student organizations should be able to enjoy the benefits, rights, and privileges afforded to other student organizations at a public institution” as well.

The final rule will going into effect 60 days after the date of official publication in the Federal Register.


DOJ Backs Students in School Choice Case

By Charles Fain Lehman • The Free Beacon

The Department of Justice filed an amicus brief Thursday in support of students claiming they were discriminated against after the state of Montana denied them placement in a tax credit scholarship program because the school they attended was a Christian one.

The case, Espinoza v. Montana Department of Revenue, concerns a the Montana Tax Credit Scholarship Program, which allows Montanans to deduct up to $150 of their contribution to a privately run scholarship program. The state department of revenue prompted the suit when it added a rule prohibiting tax credits for contributions to schools owned or operated by “a church, religious sect, or denomination.”

A group of parents brought suit on behalf of their children in December 2015 after they were denied participation in the scholarship program because their children attended a Christian-run school. The suit made it to a state trial court, which sided with the parents; the state then appealed to the Supreme Court of Montana, where DOJ lodged its Thursday amicus.

Continue reading


Notre Dame President Calls Feinstein’s Criticism of Nominee’s Faith ‘Chilling’

by Bill McMorris • Washington Free Beacon

The president of the University of Notre Dame called criticism of appeals court nominee Amy Barrett’s Catholic faith “chilling” in an open letter to Sen. Dianne Feinstein (D., Calif.).

Rev. John I. Jenkins sent the letter after Feinstein, the Senate Judiciary Committee’s top Democrat, criticized Barrett’s nomination in light of her Catholic faith. Feinstein asked Barrett, a Notre Dame law school professor, if she could be trusted to impartially weigh in on cases involving abortion, given the Church’s opposition to the practice.

“I would never impose my own personal convictions on the law,” Barrett said during a Wednesday confirmation hearing. Continue reading


‘Merry Christmas,’ Not ‘Happy Holidays’

Political correctness is humbug. Wishing goodwill to all is not an insult.

By Henry E. Brown, Republican congressman from South Carolina     •     USNews

grinch-hates-christmasEarlier this month, as I recorded a message to our troops and sent Christmas cards to family and friends, I found myself hesitating before using “Merry Christmas” to wish those important to me a blessed holiday. I was brought up in a Christian home where we celebrated Christmas and its many traditions. Until recently, I had never thought twice before wishing others “Merry Christmas.” Communities across the country are abuzz with the “acceptable” way to observe this holiday season, but why should those who celebrate Christmas feel pressure to say “Season’s greetings” or “Happy holidays,” reluctant to express traditional Christmas words of good cheer?

I am troubled by the sentiment that the phrase “Merry Christmas” is not appropriate and concerned by the ­limits placed on the expression of the traditions and symbols associated with this national holiday. For me, Christmas is one of our most important holidays, not only because of Christianity’s influence on our nation’s founding but also because of the Christmas message of “peace on Earth, goodwill to men.” To downplay this holiday can only be construed as an attempt to minimize its origin. While the commercialization of the Christmas season floods our cities with beautiful light displays and decorations of Santa and his reindeer, we must not forget that the true meaning and significance of Christmas is the birth of Christ. Continue reading


A College’s War on Christmas Parties

The University of Tennessee at Knoxville warned students to not throw Christmas parties because someone might somehow be offended.

by Robby Soave     •     The Daily Beast

Another holiday, another opportunity for college administrators to trample students’ free expression rights as part of some comically misguided effort to prevent offense. Last week, the University of Tennessee at Knoxville issued a breathtakingly Scrooge-ish (Scrooge-ian? Scrooge-esque?) piece of advice: “Ensure your holiday party is not a Christmas party in disguise.”

The diversity officers who wrote this instruction must have a lot of extra time on their hands, because eradicating secret Yuletide gatherings doesn’t exactly seem like a pressing higher education issue.

The university, thankfully, has since re-discovered its Christmas spirit, but not before inspiring bewilderment and anger among some students, as well as quite a few Republican politicians who hysterically interpret any slight against Christmas as an attack on Christianity itself. U.S. Republican Rep. John Duncan had this to say: Continue reading


Freedom of and for Religion, Not From It

Constitutionby Jonathan S. Tobin

Recently, the U.S. Supreme Court once again affirmed that the so-called “wall of separation” that exists between church and state is not quite the edifice that liberals would like it to be.In Town of Greece v. Galloway, the court ruled today that a village in upstate New York did not violate the First Amendment in allowing members of clergy to begin town board meetings with prayers, some of which were explicitly sectarian (and usually Christian) rather than ecumenical. The narrow vote along the usual 5-4 conservative/liberal lines is bound to incite many on the left to express fears about the court trying to turn the U.S. into a “Christian nation.” Continue reading


If You’re Upset, Be Upset for the Right Reasons

Duck Dynastyby Peter Roff

These days almost everyone has a blog or a column or a podcast or some means of participating in the national conversation that goes on daily about, well, everything. It’s one of the more interesting aspects of the information revolution the rise of the Internet has sparked. It means everyone has a bullhorn or at least a microphone – and that has some people very, very scared.

Growing up most of us were taught that we had to show respect for what other people thought – regardless of whether or not we agreed with them. It was the “I may disagree with what you say but will defend to the death your right to say it” view of the First Amendment protections given to speech and religious liberty in the U.S. Constitution. Continue reading


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