Recent articles by this writer on the Equality Act, drawing on testimony of panelists at a Heritage Foundation event on January 28, highlighted the radical change it would mean in the understanding of sex, really eliminating sex as an objective category, and requiring complicity in this denial by everyone in society, especially parents in the raising of their children. In particular, it will deny religious freedom, both explicitly in the text of the law, and by implication.
A review of the text of the law clearly shows this. “Discrimination” is a negative term, but it really means an act of choosing. “Nondiscrimination” laws and policies would sound much less positive if they were referred to as “antifreedom” laws and policies, but that is what they are. They substitute the judgment of the state for private judgment. The original categories of “race, color, religion, sex, or national origin” are categories in which the American majority found that it is reasonable to deny freedom, although differences between the two sexes and different religions are profound, and they are not truly equal. But all these categories can practically be treated as equal, even if regarding religion and sex there may be situations where an orthodox believer may have to decline legal requirements (such as a print order for materials stating what is understood to be false doctrine).
The Equality Act moves well beyond this to decree that there shall be no discrimination based on personal inclinations and behaviors. The devastating impact of this kind of anti-discrimination law and policy on personal freedom stems from the fact that the government is requiring that there be general public acceptance, and even celebration, of particular personal inclinations and behavior. One may possess a strong moral intuition that such preferences are righteous, but a doctrine of equality of persons will never show that they are truly worthy. One can only try to assess their public value in terms of an understanding of the general good, and any such conclusion will be ever arguable.
The fifteen categories of discrimination found to be unacceptable in the “Findings” section (Section 2(a)) are all matters of opinion that many people would not agree with. Why should private persons, or indeed the state, be required to treat people as if they were members of the opposite sex, or same sex activity as if it were equal to opposite sex activity (when plainly it is different, and thus not necessarily of equal worth), or pregnant women without regard to their pregnancy (which clearly is an important fact about them, which might mean that someone is not entitled to what she wants), or a related medical condition which might also mean someone should be excluded from what she wants? The obvious reason is injured feelings, pain, and humiliation. But that in itself cannot be a reason why there should be no adverse judgment (i.e., discrimination).
It is important in reading the “Findings” section of the proposed law to keep in mind that the bill’s authors are saying that much private judgment is wrong about sexual matters, and the government may decree what the correct judgment is. These matters concern biological sex itself, sexual orientation (i.e., sexual desire), the (false) belief that one belongs to the opposite sex, or the traditional roles of the sexes (what the legislation call “sex stereotypes). Even if the great majority of people, including perhaps people making laws and regulations, are making decisions on these things that impact the lives of dissenters, doctrines of liberty and equality will never show that people are entitled to what they want because they will otherwise suffer humiliation or inconvenience. That can only be done by declaring to be equal things that clearly are not equal, which is exactly what this piece of legislation does.
Why, for instance, should people be required to sell or rent property to couples (or perhaps more than two people in a sexual arrangement) who engage in sexual activity the seller believes is sinful? Or why should the freedom and equality of persons be construed to mean the equal worth of their behavior, since personal behavior is plainly not equal? Why should people be required to provide goods and services to support behavior they believe is wrong and harmful? Why does the “equal protection” of the Fourteenth Amendment (cited in 2(7)(c)) demand that personal lives, inclinations, and behavior be treated as equal? If dissenters from reality and common opinion are frustrated, that is not a good reason to require irrationality on the part of everyone in society. And of course, faithful Christians cannot acquiesce in sinful action, regardless of any other considerations.
Of particular concern as well is the condemnation of therapy to reorient people to the sexual identity and inclinations of their biological sex (2)(6). Evidence that this is harmful is debatable, and even if it were well established by modern psychology, it should not be a reason why the state should prohibit the free speech of therapists and their willing clients to pursue reorientation. People in the politically incorrect “ex-gay” community can testify to its benefit, but in any case the free speech consideration should govern. As noted in the Heritage panel, prohibiting reorientation therapy puts parents are at risk of losing their minor children if they question a child’s belief that he or she belongs to the opposite sex.
Yet another concern is the fact that one can violate the proposed law by denying goods, services, housing or employment based on one’s perception of the customer, would be buyer, or applicant for employment. The government must decide whether people’s perceptions and attitudes are correct, enormously increasing the power of the courts, activists who bring lawsuits, and ideologists who advance ideas of what correct thinking is supposed to be.
A very drastic, indeed totalitarian, aspect of the proposed law is that it drastically expands the coverage of anti-discrimination doctrine to cover almost everything in society. As noted by the Family Research Council’s summation, the denial of private judgment about sexual matters is expanded to cover ““any establishment that provides a good, service, or program.” This seems to involve even services provided for free, since it includes ““a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services.” Most ominously, legal services are covered, which could mean that legal service organizations which have been crucial in the fight for religious freedom will be required to advocate for clients in whose cause they do not believe.
Of greatest concern, however, is the Equality Act’s explicit rejection of religious freedom to protect against complicity in behavior thought to be sinful (Sec. 1107). This puts the government’s statutory declaration of the equality of things that are plainly not equal (self-defined sex, different sexual desires and behaviors, as well as biological sex itself) above the clear priority the Constitution gives to the free exercise of religion. We need to remember here that “exercise” is an action word; it cannot refer to mere belief. Even with respect to belief, this type of “equality” law represents a clear condemnation of much religious belief, violating state neutrality. That indeed seems to be the heart and soul of the proposed law. But if the nation is serious about constitutionalism, it must give religious freedom priority over anti-discrimination doctrine and the hurt feelings behind it. And of course, moral intuition should tell us that it is people required to take action against their consciences who are being wrongly imposed on, not those requiring action.
Excluding sexual morality from any protection religious freedom might give it is a very grave violation of the doctrine of religious freedom. Sex and sexual morality are fundamental in many religions. They cannot be practiced with integrity if people are required to act against religious precepts. But complicity in the violation of religious precepts is exactly what sexual orientation and gender identity (SOGI) laws are interpreted to require, because sexual behavior and inclination are (inconsistently) held to be part of personal equality. Certainly such complicity is what this national SOGI law will require. It also will require the integration of people who violate religious standards, indeed who consider the standards themselves violent, into religious organizations (such as schools or charities). And since civil rights law carries a heavy moral imperative, the Equality Act in fact is claiming a moral obligation to take action deemed immoral, which is obviously wrong. In this way something of a liberal/left state religion will be effectively established.
If it is passed, the Equality Act will be a national law, likely held to be a capstone of civil rights doctrine, and most fully implementing the Fourteenth Amendment. As has been shown, it is an irrational and inconsistent extrapolation of the Fourteenth Amendment, since behaviors, inclinations, and self-defined sexuality cannot possibly be consistently treated as equal. It will be imposed on conservative areas of the country which have resisted SOGI laws, and as with similar issues (such as school prayer) it will be seen as the just requirement that the unenlightened masses conform to enlightened opinion. And as with abortion and same-sex marriage, the liberal/left sensibility enshrined by the act will be held to be a settled issue. This despite its highly dubious and divisive nature, requiring by law a morality of self-will many Americans disagree with, and which is in fact at odds with the First Amendment’s guarantees of freedom of religion and speech.
Because it is a drastic measure, it may be that Americans will not be faced with it. It will require a Democratic President and Congress, although its most radical aspect (transgenderism) could be enacted by a (doubtful, but possible) Supreme Court decision defining “sex” as gender identity. But here is where Christians must understand that our absolute duty is to God, not to the state. The loss of educational, charitable, or healthcare institutions of a distinctively Christian character, infractions of the religious liberty of houses of worship, and the exclusion of faithful Christians from business and the professions, may be something that happens in our country. But it is a price we must be willing to pay to obey God.