Friday, December 6, 2019
Today the federal "Fairness for All" bill was introduced; it aims to give significant protection to both LGBT nondiscrimination rights and traditional believers' religious-freedom rights. Full information about the bill here. It is already being attacked from both sides of the ongoing, polarizing culture war for which this issue provides such fuel. For reasons I and others have long articulated, neither side is going to prevail in without protracted conflict that will continue to harm (1) the cause of traditional religious faith, (2) LGBT people's basic equal treatment in significant parts of the country, and (3) the bonds that keep America together.
The bill is not perfect, but it would be a major step forward. Carl Esbeck, Doug Laycock, Robin Wilson, and I have joined a letter supporting the bill. Here is the text of our letter. (Update: It's also available on the FFA coalition's website and here.)
December 6, 2019
We are constitutional law scholars who have studied, taught, and written about the law of religious liberty for decades. All of us have persistently argued for religious liberty in legislatures and in the courts. Most of us have also argued for LGBTQ rights in legislatures, the courts, or both.
We have long been concerned about legal clashes between those who cherish the fundamental right to religious liberty and those who advocate new legal protections for the civil rights of LGBTQ people. These conflicts have led to increasingly polarized positions in which progress is blocked for both sides. Many Americans think that traditional believers seek a general “license to discriminate” and that hostility to the LGBTQ community is the public face of Christianity. Many traditional believers think that the LGBTQ community and its supporters are determined to destroy their institutions, deprive them of their rights, and confine them to hidden and wholly private corners of the society.
Neither side’s perception of the other is accurate, but the perceptions are real, and they have done much damage to traditional believers, to the LGBTQ community, and to the larger society. Same-sex marriage is protected from interference by government, but in about half the states, same-sex couples can still get married on Saturday and discover that one or both of them has been fired on Monday. Believers with conscientious objections to assisting with same-sex weddings still fear being forced to surrender their consciences or close their businesses in the other half of the states, and churches and other religious organizations fear intrusive regulation or loss of tax exemptions everywhere, whether from blue states or federal agencies.
There is a better way. The proposed Fairness for All Act is balanced civil rights legislation that equitably protects the rights of both communities. It broadly protects LGBTQ persons in employment, housing, credit, public accommodations, federally assisted programs, public facilities, jury service, refugee resettlement, and marriage recognition, and it offers protection against bullying and retaliation. It broadly protects religious institutions and individual believers in practice, doctrine, conscience, and institutional integrity. It protects tax exemptions; it protects small businesses and medical professionals; it greatly strengthens accommodations for religious employees. It protects free speech in the workplace for both supporters and opponents of same-sex marriage.
Both traditional believers and the LGBTQ population would have far more protection under this bill than they have under existing law, and far more protection than they have any reasonable prospect of enacting without this bill or some similar negotiated solution. The experience in Indiana with attempts to enact a state Religious Freedom Restoration Act, and less publicized failures in Georgia, Michigan, Ohio, and West Virginia, show that except possibly in the reddest states, the religious community cannot pass additional religious liberty legislation without making adequate provision for LGBTQ rights. It is equally clear that LGBTQ advocates cannot pass gay-rights legislation in Congress or in red states without making adequate provision for religious liberty. No state has enacted a new statewide law against sexual-orientation discrimination since Colorado in 2007—with one telling exception. The deep red state of Utah was able to enact statewide protections for sexual orientation and gender identity in housing and employment, but only because it protected religious liberty in those domains in the same bill.
LGBTQ people still face discrimination and need protection now, not after some imagined political realignment far in the future. Many of these cases arise in secular and nonsexual contexts where there is no plausible claim that religious faith is the reason for discriminating. Few Americans, if any, sincerely believe that God wants LGBTQ persons to be unemployed, homeless, or without access to basic goods and services. But all kinds of discrimination against LGBTQ people are entirely legal under federal law and in about half the states.
More than half of Americans live in jurisdictions where state or local laws already protect LGBTQ people from discrimination. But these laws do not strike an adequate balance with religious liberty. Most state-law protections were enacted before the Supreme Court’s marriage decisions and therefore do not address the most religiously sensitive conflicts. This bill addresses some of those conflicts; it leaves others to state law.
Some traditional religious believers would rely on protections in regulations recently issued by the Trump Administration. But these regulations offer no protection for LGBTQ rights, some of them are subject to challenge as lacking statutory authority, and all of them will likely be withdrawn by the next Democratic President as quickly and easily as they were issued. Legislation can also be amended, but doing so is far more difficult, requires a far more elaborate process, and usually requires at least some votes from both political parties. Reliance on the courts is deeply uncertain for everyone involved, but for the foreseeable future the courts are especially unpromising for advocates of LGBTQ rights.
The Fairness for All Act has been carefully negotiated by representatives of the traditional religious community and of the LGBTQ community. It comprehensively addresses the issues, and it addresses them in the context of current law. No negotiated solution is perfect from the perspective of either side. But the negotiated solutions in this bill are well thought out and carefully drafted, and as we said, they would make both the LGBTQ community and traditional faith communities far better off than they are today. In putting together complex legislation, there will always be provisions we might do a little differently, but the interested groups should not let the perfect be the enemy of the good.
The nation’s deep division on these issues is aggravating polarization and contributing to gridlock more generally, and it is making lasting progress impossible for either side. We urge Americans of good will and of all views on these issues to support a negotiated solution. It would be a huge advance for both sides.
Of course we write in our individual capacities as scholars; none of our institutions takes any position on the bill or the issues discussed in this letter.
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas (Minnesota)
Carl H. Esbeck
R.B. Price Professor Emeritus of Law and
Isabelle Wade and Paul C. Lyda Professor Emeritus of Law
University of Missouri
Robert E. Scott Distinguished Professor of Law
University of Virginia
Alice McKean Young Regents Chair in Law Emeritus
University of Texas
Robin Fretwell Wilson
Roger and Stephany Joslin Professor of Law
University of Illinois Urbana-Champaign