The Washington Post Sunday
What Democrats need to do for the Equality Act to become law
The House of Representatives has passed the Equality Act, a landmark bill that would extend federal anti-discrimination protections to lesbian, gay, bisexual and transgender Americans. You could be forgiven for yawning.
Not because the legislation is insignificant. On the contrary. For the LGBTQ movement, federal civil rights protection has been a polestar since at least 1974, when a version of the Equality Act was first introduced. But again and again, congressional efforts to ban LGBTQ discrimination have failed.
This time could be different. President Biden has promised to seek enactment in his first 100 days. Democrats control the Senate. Whether 60 Senate votes can be found depends on a crucial variable: Will LGBTQ and civil rights advocates negotiate with faith-based organizations to reach a deal?
For religious and faith-based organizations, the House version of the Equality Act is toxic, because it overrides religious-liberty protections granted in 1993. More broadly, they fear that both law and secular culture are on a path to equating traditional religious teachings about sexuality to racism.
Yet compromise could be achieved by packaging LGBTQ civil rights protections with relatively narrow exemptions for religious objectors. Many states have done this — including Utah, in a 2015 compromise among LGBTQ rights groups, conservative state legislators and the Church of Jesus Christ of Latterday Saints (LDS). More recently, a coalition of faith-based groups — including such heavy hitters as the LDS church, the Council for Christian Colleges and Universities, and the National Association of Evangelicals — joined with the American Unity Fund, a center-right LGBTQ advocacy group, to propose such a compromise, called the Fairness for All Act.
The Fairness for All Act has too little Democratic support to pass, and the Equality Act has too little Republican support. As written, both are dead on arrival in the Senate. But amended, the Equality Act could become a vehicle for bipartisan Senate negotiations that could add tailored religious exemptions. That kind of bill would have a real shot at winning 60 or more Senate votes and a majority in the House.
Members of the Fairness for All coalition are eager to negotiate, but they need a partner. Congressional Democrats will not support a bill over vigorous objections from LGBTQ and civil rights groups. So the question becomes: Will those groups abandon their purist positions and come to the bargaining table?
To be fair, their earlier reluctance to compromise is understandable. With no chance of Senate passage, why should they have negotiated with themselves? Why should LGBTQ people seeking to rent homes, patronize businesses and adopt children be burdened with religious carve-outs that don’t apply to other protected groups?
But now, not only is Senate passage possible; there also has been a sea change among some religious groups. As one member of the Fairness for All coalition told me, “In the religious communities, in part because of acculturation and in part because of generational shift, I think there is a real openness to trying to work this out that was not there a decade ago.” Another member said, “We hope that President Biden will be the president who signs comprehensive LGBT rights legislation as an amendment to the Civil Rights Act of 1964 into law. We just fundamentally think it’s the right thing to do. We believe it’s what our savior would have us do.”
These are conservative religious groups that are not prepared to change their doctrinal teachings on marriage and sexuality. But they have broken with the old guard of anti-gay diehards. For LGBTQ Americans, negotiating a package deal would bring important legal protections, yet the political gains would be even more impressive. The once monolithic opposition to LGBTQ rights among conservative religious denominations would be shattered.
The biggest prize would be the consolidation of public support for LGBTQ equality. Perhaps counterintuitively, LGBTQ civil rights protections enjoyed 77 percent support in conservative Utah in 2019, a level exceeded at the time only in New Hampshire. That’s because the 2015 compromise spanned traditionally adversarial lines. “I think the animosity has gone away,” said J. Stuart Adams, a conservative Republican and president of the Utah state Senate. “An amazing thing happens. When you reach out and try to protect the rights of someone you don’t necessarily agree with, they are less likely to try to take away yours.”
A federal compromise could create a similarly cooperative dynamic. Hardline opponents of LGBTQ equality would be increasingly isolated, and the cobra-mongoose relationship that has long characterized relations between the LGBTQ and religious communities could be dispatched into history. That would do more to reduce discrimination than any statute might.
So LGBTQ Americans can pursue a deal that delivers legal protections plus a political breakthrough. Or we could walk away empty-handed. Again.
Lyndon B. Johnson is reported to have asked congressional interlocutors, “Do you want a bill, or do you want an issue?” LGBTQ rights advocates have a shot at a historic achievement. Let’s aim for the bill.