The Washington Post Sunday

What Democrats need to do for the Equality Act to become law

- BY JONATHAN RAUCH Jonathan Rauch is a senior fellow at the Brookings Institutio­n and author, most recently, of “The Constituti­on of Knowledge: A Defense of Truth.”

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.

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