‘Because of Sex’: The Coming Battle between the Free Exercise Clause and the Equality Act

Christine M. Venter is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame

The Equality Act has had a long and arduous history in its quest to become law. The Act was first introduced in 1974 by Congresswoman Bella Abzug, who was determined to end discrimination on account of “sex, marital status, and sexual orientation” in employment, housing, and public accommodations. Although that effort failed, the Act was reintroduced in 2019 and passed the House by a vote of 276 in favor to 173 opposed. Under the leadership of Mitch McConnell, the Senate declined to move it forward for a vote.

Enter the Supreme Court, and Justice Gorsuch’s majority opinion in Bostock v. Clayton County, in June 2020, that Title VII’s prohibition on discrimination “because of … sex,” extended to sexual orientation and gender identity. Although the Court specifically limited its analysis to Title VII, focusing only on the employment discrimination claims based on sexual orientation and gender identity that were before the Court and not on any other area of federal law, both supporters and opponents of equality for the LGBTQ+ community were quick to question the case’s impact.

Then-Candidate Biden made a commitment on the campaign trail, that his administration would protect LGBTQ+ individuals from discrimination [1]. The impetus to pass the Equality Act was also fueled by the Office of Civil Rights’ memorandum clarifying that the decision in Bostock did not extend to Title IX of the Education Amendments Act (which prohibits sex discrimination in the field of education). In response, President Biden issued an Executive Order (EO), purportedly extending the ruling in Bostock to Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act. In doing so, he reiterated that “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”

Congress once again took up the Equality Act in February 2021. The Act, as currently written, goes even further than the Executive Order in that it prohibits discrimination on the basis of sex in jury selection, public spaces and services, and federally funded programs. Additionally, it specifically expands public spaces and services to include retail stores, and services such as banks, legal services, and transportation services.

Further, in Section 2(7), the Act specifically identifies “conversion therapy,” a practice that aims to change an individual’s sexual orientation or gender identity, as a “discredited practice.” Multiple states have banned the practice, but the Equality Act is the first federal law to specifically address it, putting those religious groups which receive federal funding, and which continue to endorse it (despite a consensus among psychologists as to its harmful effects) on notice that it is now considered “a form of discrimination that harms LGBTQ people by undermining individual’s sense of self-worth,… and contributing to second class status.”

Moreover, the Equality Act specifically rejects the use of the Religious Freedom Restoration Act (RFRA) as a defense or claim to any discrimination claim in respect of any statute covered by the Act. Nor may the RFRA “provide a basis for challenging the application or enforcement of a covered title.”

Not surprisingly, the debate in Congress over that section in particular, and religious liberty generally, was contentious. Indeed, that debate may foreshadow the challenging relationship to come between proponents of the Bill and defenders of the Free Exercise Clause. While opposing the Bill, Rep. Greg Steube, R-Fla., read passages from the Old Testament and warned that “whenever a nation’s laws no longer reflect the standards of God, that nation is in rebellion against him and will inevitably bear the consequences.”

On the other hand, Rep. Al Green, D-Texas, who is Black,viewed religious principles as a cover to continue discrimination, asserting during the debate:

You used God to enslave my foreparents. You used God to segregate me in schools. You used God to put me in the back of the bus… This is not about God. This is about men who choose to discriminate against other people because they have the power to do so.

The problem, of course, is how to reconcile (in Justice Kennedy’s words) “the rights and dignity of gay persons …who face discrimination when they seek goods or services” with the free exercise rights of those who believe their religion prohibits them from providing those services because to do so would constitute an endorsement of institutions like gay marriage.

Unfortunately, the Supreme Court failed to clearly identify a way to balance those two interests in Masterpiece Cake Shop, when it decided the case on the basis that the Colorado Human Rights Commission, in adjudicating the baker’s claim, had expressed hostility to religion in a manner inconsistent with the Free Exercise Clause. However, Justice Kennedy did suggest that permitting too many exceptions to the provision of services on the grounds of free exercise would result “in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” He also noted that not all goods or services involve a form of personal expression (speech) and that

if a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.

In deciding cases going forward, the Court may well have to determine whether discrimination against the LGBTQ+ community “violates deeply and widely accepted views of elementary justice” in the same way that racial discrimination does. In Bob Jones v. United States, the Court upheld the IRS’ decision to deny the university a tax benefit because its prohibition on interracial dating was contrary to public policy and the government had an interest in denying public support to racial discrimination in education.

Proponents of religious liberty may argue that comparisons to Bob Jones are a false equivalency. After all, many mainstream religions take the position that gay marriage, for example, is contrary to their religious precepts. In contrast, few religions endorse or tolerate racial discrimination. But the principle from the case seems clear: if a discriminatory practice becomes sufficiently abhorrent to society so as to contravene public policy, the Court cannot protect it under the Free Exercise Clause unless someone is being compelled to “speak” in a manner inconsistent with their religious principles.

It seems the Equality Act basically takes the position that LGBTQ discrimination does meet the standard of violating public policy and contravening deeply and widely accepted views about justice. Numbers from a recent study on public opinion seem to support that position. The Public Religion Research Institute’s survey suggests that 83% of the 40,0000 Americans surveyed, favor laws that would protect LGBTQ+ people from discrimination in work, housing, and public accommodation. A lower, but still significant number,  65%, oppose allowing a small business owner to refuse to provide products or services to LGBTQ  people if doing so violates the business owner’s religious beliefs.

The Court has yet to rule in the matter of Fulton v. City of Philadelphia, a case in which the Supreme Court is being called on to decide inter alia, whether, by cutting off referrals for foster care to Catholic Social Services (CSS) because of their religious-based opposition to placing foster children with same-sex couples, the City of Philadelphia violated the Free Exercise Clause. Given the fact that CSS would have been compelled to “speak” against its religious convictions by placing children in same-sex homes, the tenor of the justices’ questions, the current conservative majority on the Court, as well as other recent favorable decisions on religious liberty, such as Roman Catholic Diocese v. Cuomo, it seems likely that the Court will rule in favor of CSS.

However, even if the Court does rule in favor of CSS, that will not end the debate over LGBTQ equality in respect of the provision of goods and services, especially if the Equality Act is enacted into law. The Court seems increasingly out of step with the opinions of the American public in upholding Free Exercise claims against the rights of LGBTQ individuals. Will there come a point at which discrimination against the LGBTQ community is widely regarded as similarly odious as discrimination on racial grounds, and if so, what will the Court do then?

Current trends and the House passage of the Equality Act suggest that time is coming soon, if it is not already here, and while recent Court appointees are young and reliably conservative, who knows what a future Court may look like? The Court laid the groundwork for racial equality in Brown v. Board of Education and 24 years later rejected Bob Jones University’s claim of religious liberty to protect its discriminatory racial policies. Similarly, the foundation for LGBTQ equality was laid in Obergefell and will be cemented by the Equality Act, if it passes the Senate. It is unlikely that it will take another quarter of a century for the Court to uphold LGBTQ equality rights over the religious liberties of those who would deny services or goods to LGBTQ individuals “because…of sex.”

[1] Note that Biden used the term “LGBTQ+” in his campaign commitment, but the Equality Act uses the term “LGBTQ.”