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Joe Biden: Bad For Religious Liberty

UNITED STATES - OCTOBER 8: Protesters block the street in front of the Supreme Court as it hears arguments on whether gay and transgender people are covered by a federal law barring employment discrimination on the basis of sex on Tuesday, Oct. 8, 2019. (Photo by Caroline Brehman/CQ-Roll Call, Inc via Getty Images)

Joe Biden said today that if he’s elected (and assuming he has a Democratic Senate behind him), he will sign the Equality Act within the first hundred days. I believe him, too. This is an issue that the Democratic Party is united on. The only reason it’s not the law now is because the Republican Senate would not pass it.

The Equality Act would raise sexual orientation and gender identity (SOGI) to the level of race in federal civil rights law. That means that there would be no difference This would be bad news for the religious liberty of dissenting Christians, Muslims, and Jews. Why? Ryan T. Anderson explained last year that the Equality Act, if signed into law, would do the following things:

1. The Equality Act would force employers to cover abortion, and medical professionals to perform or assist in performing abortions.

When the Obama administration tried to force this same policy in its very last months in office, a federal judge declared it unlawful. When the Trump administration came into office, the Trump Justice Department agreed with that judge and did not appeal his ruling, which placed a 50-state injunction on that regulation.

Should the Equality Act become law, this abortion policy would become the law of the land, undermining President Donald Trump’s significant pro-life record.

2. The Equality Act would force employers to pay for sex “reassignment” procedures in their health insurance plans, and require medical professionals to perform them.

Think Hobby Lobby and Little Sisters of the Poor, but only worse. If a health care plan covers mastectomies in the case of cancer, but not in the case of “reassignment,” the Equality Act would deem this illegal “discrimination.” So, too, if a doctor chooses to perform mastectomies in the case of cancer but not for sex “reassignment” purposes. That doctor would be guilty of illegal “discrimination.”

Thankfully, when the Obama administration attempted to impose this mandate, a federal judge struck it down, and the Trump administration agreed with the judge and did not appeal the ruling. Should the Equality Act become law, it would undo Trump’s policy of protecting the freedom of medical doctors to not perform “reassignment” procedures if they deem them bad medicine.

3. The Equality Act would force all schools and businesses to open their women’s bathrooms, locker rooms, showers, and sports teams to boys who “identify as” girls and to men who “identify as” women.

The Obama administration imposed this transgender mandate on schools in all 50 states, and thankfully the Trump administration reversed the misguided policy during its first weeks of office. But, should the Equality Act become law, it would override the Trump policy and would threaten the privacy, safety, and equality of women and girls across the country.

4. The Equality Act could be used to force the military to pay for “reassignment” procedures and force the military to accept recruits suffering from gender dysphoria who are not combat-ready.

The Trump administration has implemented a careful, nuanced policy that allows people who identify as transgender to serve in the military — provided they no longer suffer from gender dysphoria and serve in accordance with their biological sex. But should the Equality Act become law, this Trump policy could be deemed “discrimination.”

5. The Equality Act would force faith-based adoption agencies to either violate their conviction that every child deserves both a mother and a father or to stop serving children in need altogether.

Thankfully, the Trump administration has taken initial steps to protect adoption agencies from these misguided policies. Additional steps are needed. But if the Equality Act became law, it would force all adoption agencies in all 50 states to either violate their convictions or close their doors.

6. The Equality Act would force a variety of small business owners to violate their beliefs about marriage, sexuality, and gender.

At the state level, this has happened to bakers, florists, photographers, and even funeral home owners.

Thankfully the Trump administration has supported these small business owners as their cases proceeded through the court system. But should the Equality Act become law, it would bring the full force of the federal government against these small business owners, treating them as violators of federal civil rights law.

7. The Equality Act, in general, threatens the freedom of speech, freedom of association, and free exercise of religion rights of countless people.

Anyone who believes we are created male and female, and that male and female are created for each other, will be at risk. This means Orthodox Jews, Roman Catholics, Evangelical Christians, Latter-day Saints, Muslims, and people of no particular faith tradition but who take science seriously will be on the wrong side of federal civil rights law.

This is what will happen if Joe Biden is elected president and the Democrats, who are expected to hold the House, take the Senate. Biden said so today.

My friend Tish Harrison Warren, an Anglican priest, says that you shouldn’t vote for Donald Trump to protect religious liberty. Her argument, in part:

I, for one, think it could be quite bad [if Biden wins]. I am not naïve about the threat to traditional religious communities from certain forms of progressivism. In 2012, I led a ministry that was kicked off the campus of Vanderbilt University for seeking to preserve our creedal commitments—all while Vanderbilt assured us with a fixed smile that they were actually very tolerant of religious people. In 2015, on the day Obergefell v. Hodges was decided, I called one of my best friends who is gay, listened as he enumerated all the ways this decision improved his life, and congratulated him, but I also asked that if my church loses its tax-exempt status or my kids’ Christian school is shut down, that he’d write on my behalf (for the record, he said that he would). Though I cannot predict the future, I understand what is at stake.

These fears that religious conservatives feel are real and ought not be brushed off lightly. Losing our shaping and beloved institutions is a grievous loss. But I do not think our fears can ultimately be answered politically. Instead, we as a religious community must address them theologically. The gospel alone—not Republican politics nor empty assurances that it won’t be so bad—is the proper response to genuine fears.  Laws and policies that protect religious liberty are important, but we, as a Christian community, cannot seek those laws at any cost. If we do, we will lose our own souls in the process of preserving our freedoms.

She details the ways she believes that the Trump administration’s policies, and the president’s character, has hurt the things Christians believe. And then:

My deep concern is that we are burning down our own house in the attempt to save it. Curtailing religious liberty in the United States would devastate religious communities and non-profits, weaken our society as a whole, and lead to less freedom and less diversity. But it isn’t the worst fate I can imagine. Far worse would be if in our attempt to protect robust religious freedom, the church would so fearfully compromise the message and ethics of Jesus, that we have nothing left worth preserving.

Read it all. She makes a good point. I’m not ultimately convinced, but note that unlike many on the Left, she doesn’t say either that it won’t happen (a transparent falsehood), or that we “bigots” deserve what we have coming. Warren simply judges that Christians have more to lose by voting for Trump (and a second Trump term) than by suffering the different-but-real losses of a Biden presidency. Again, I disagree — but her argument is worth listening to, because she’s right about the damage that Trump is doing to conservative Christianity. Despite that, reading Ryan Anderson’s list of what the Equality Act will do makes me think that a second Trump administration would be the lesser evil, for voters like me who believe that religious liberty is the most important issue facing us.

It is worth noting that LGBT Americans already enjoy substantial liberties, both in law and in culture. LGBT rights are popular now, and it is hard to find a business or institution that discriminated against them. Those that do face public opprobrium. The culture has changed. Those relatively few businesses and institutions that would practice currently legal discrimination against LGBT Americans will be crushed by this. So will women’s athletics. Which is the point. The Left is no longer liberal.

If Joe Biden wins this thing, especially if the Democrats take the Senate, traditional Christians, Muslims, and Jews, and other social conservatives, will wake up in a new world. In The Benedict Option(2017), I said this was coming, and that Christians had better prepare ourselves for it. Many Christians said I was a head-for-the-hills alarmist, and didn’t pay attention. In Live Not By Lies, published one month ago today, I said it was at the door — and here we are, days before the election, in which the last legislative and executive protections for religious liberty on the SOGI front seem poised to fall. All the winsomeness in the world is not going to protect your business or religious school when the Biden Justice Department comes after them.

But all the votes haven’t yet been cast or counted. Don’t forget that.

UPDATE: I texted a lawyer friend who is heavily involved in religious liberty issues, asking for his response. He texted back just now:

I think the best very brief summary I’ve seen comes from Doug Laycock. Doug is a SSM supporter, but also one of the top 1st Amendment scholars in the country — anyone left or right would agree with that. Here is what he said, “It goes very far to stamp out religious exemptions,” “It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”

Those are very strong, but fair words, coming from a guy like Laycock. Strong, but fair.

The EQA wholly exempts itself from the operations of the Religious Freedom Restoration Act (RFRA) and offers no specific religious protections to religious institutions.  The EQA would probably revoke federal security, disaster relief, and school lunch money from thousands of religious schools; would probably revoke the Pell Grant and federal loan eligibility for tens of thousands of students that attend hundreds of religious colleges, and; would probably end federal partnerships with thousands of faith-based programs that serve the poor and others in need (foster care services, homeless shelter, domestic abuse programs…). In many cases those programs simply wouldn’t survive.

It also has implications for ability of Churches and other ministries with respect to hiring practices. And also expands the definition of “public accommodation” without providing any clarity on how this would be applied to religious organizations. It certainly impacts wedding vendors, and other business owners. And it ups the ante on the kinds of privacy and free speech issues that we already see being litigated under title IX and k-12 schools, colleges and universities.

It also threatens the conscience rights of health care professionals.

I’m actually not at my desk right now or I could provide a tighter response, I’m likely forgetting something in the litany above.

There would be lots of litigation over many of the points above, but in many cases that kind of litigation is not survivable even if you win, and with all RFRA protections removed the chances of winning are diminished.

Summary, It’s a seriously problematic bill with potential deep and long lasting negative impact on individuals and institutions who hold to traditional beliefs on marriage, family, sexuality, identity… It’s a VERY big deal that I wish were getting more attention.

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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