You may be familiar with a bill called the Equality Act that is currently working its way through Congress. While it has been introduced in Congress multiple times over the years, the current version passed the U.S. House of Representatives in February of this year (224-206), and the U.S. Senate held a judiciary committee hearing on the bill in March. President Biden has called for the bill to pass as part of his first 100 days in office. While the bill as written is not likely to get 60 votes, threats of change to the filibuster mean we need to pay attention. We should, therefore, take a look at what it says and what it would mean for people and institutions of faith.
If passed, the Equality Act would add sexual orientation and gender identity (SOGI) as a protected class under federal civil rights law. Due to a Supreme Court ruling in the Bostock decision in the summer of 2020, we already have SOGI protection in the area of employment (Title VII). In addition to employment, the Equality Act would expand SOGI protection to public accommodations, housing, jury service, banking, and more. It means a bank could not turn down an LGBT person for a housing loan simply due to his or her sexual orientation. It would mean a court could not refuse to sit a transgender woman on a jury, merely based on gender identity.
Many of us would agree those are good things. In a pluralistic society, we live in community with people with whom we disagree. We can agree that LGBT persons should be afforded the same basic necessities as everyone else. But the Equality Act as currently drafted goes far beyond that. As written, it would create distressing consequences for people and communities who faithfully adhere to Scripture, especially as it relates to a biblical understanding of sexuality and marriage.
How the Equality Act Would Affect Faith Communities
One example of how the Equality Act would harm faith-based organizations is in the area of funding. The Equality Act adds SOGI to Title VI, which governs federal funding. Title VI has no religious exemption, meaning all federal funding would be threatened for institutions that adhere to historical biblical understandings of human sexuality. This would mean removal of school lunch money for K-12 schools, no research grants for colleges and universities, no Pell Grant funding to enable low- and moderate-income students to achieve college education, no federal dollars for Christian homeless shelters, soup kitchens, adoption or foster care agencies, or rehab programs. In a word — ruinous.
The Equality Act is not simply about protecting LGBT people from unjust discrimination; it is about suppressing those with different views about sexuality.
Given my work at the Council for Christian Colleges & Universities (CCCU), I am most familiar with the challenges Christian higher education would face under this bill. Pell Grant funding is an integral part of an affordable education for many families. The CCCU represents more than 140 institutions in the United States, and one-third of students attending those institutions receive Pell funding. Racial and ethnic minorities tend to receive more Pell Grants than white students, so removing access to these grants would disproportionately affect students of color.
But the funding threat of the Equality Act is more than just Pell Grants: it would include all forms of federal aid, such as loans and work-study. To illustrate the impact this would have, more than 70% of CCCU students receive some form of federal aid.
Another example is in the area of hiring. Christian organizations that hire for mission would be threatened with lawsuits for failing to hire LGBT persons. This is already a problem under Bostock, but the Equality Act will compound the issue. In his opinion in Bostock, Justice Gorsuch addressed the religious liberty concerns of the dissenting justices in large part by noting that the Religious Freedom Restoration Act (RFRA) can be used by religious employers to protect their hiring practices in future cases. But under the Equality Act, RFRA cannot be used for this purpose. Title VII of the Civil Rights Act governs hiring, and there are religious exemptions in Title VII. However, it is unclear how these exemptions will be interpreted in the SOGI context. After the Bostock decision, we have already seen courts narrow the religious exemption to make it irrelevant.
For example, in the Starkey case, (still in preliminary motions, and not all courts have ruled this same way) a Catholic school dismissed a Catholic teacher who married her same-sex partner. The school’s policies were clear on the church’s doctrinal position, and the teacher signed a contract agreeing to abide by those policies. However, she sued, arguing SOGI discrimination. The court found that while the school was religious and therefore could claim the religious exemption in Title VII, it only allowed “favor[ing] co-religionists” when it did not implicate “another protected class.” The school could not expect the teacher to actually abide by Catholic standards of behavior and conduct where same-sex relationships were involved. The court noted that the teacher alleged she was fired for entering a same-sex marriage, which violated Title VII, and the court concluded the religious exemption had to be limited to exclude religious teachings on this matter.
Basically, this court concluded that if religion butts up against LGBT discrimination claims, religion loses. In the wake of the Bostock decision, we need a law that explicitly enshrines robust religious freedom protections in a clear way to avoid these lawsuits. The Equality Act offers no such protection.
While there are many problems with the Equality Act, I will only mention one more: gutting the RFRA. The RFRA passed with an overwhelmingly bipartisan vote in 1993: 97 to three. Supporters included then-Senator Biden and Senator Feinstein as well as then-Representative Schumer and Representative Pelosi, among others. Since that time, RFRA has protected many religious groups, especially religious minorities.1 But the Equality Act would exempt itself from RFRA, meaning that RFRA could no longer be used as a defense for religious people or groups in the civil rights context.
RFRA created a balancing test that said the government must have a compelling interest in order to burden someone’s religious exercise. The balancing test means the religious claimant does not always win. RFRA is an important tool to protect religious liberty, but it is not a home run for religious parties: it is a carefully crafted balancing test that forces the government to meet hurdles before infringing on religious beliefs and practices. Under the Equality Act as currently drafted, the balancing test in RFRA would no longer apply, which leaves people of faith at a disadvantage if they are forced to sue to protect their religious belief or practice.
Let’s take the funding example above. A Christian school serves a majority population of students of color, and 75% of its students receive free and reduced-cost lunches provided by federal dollars. If that school continues its faith-based hiring practice, its students lose access to that program. If the school sues, the school has no statutory protection (because there is no religious exemption in Title VI), and no ability to use RFRA. The school still has First Amendment claims, but the school loses an important tool in its legal defense. One study found that the Supreme Court finds in favor of the religious claimant with much more certainty when the claimant has a statutory defense instead of just a First Amendment defense.
Offering a Balanced Approach
There is a better way forward. I am part of a broad coalition that has been working for years to craft a balanced legislative approach that both preserves religious freedom and addresses LGBT civil rights under federal law, even as we mitigate against the Equality Act. By pairing religious freedom and LGBT civil rights, we can underscore that all persons, including LGBT people, are created in the image of God, and therefore possess full dignity, value, and worth. This approach represents civic pluralism at its best, in a society where people with deep differences can live alongside each other with respect and understanding.
While some members of Congress are interested in such an approach, the activist groups that support the Equality Act have not been willing to come to the table to discuss robust religious freedom protections. This shows that the Equality Act is not simply about protecting LGBT people from unjust discrimination — it is about suppressing those with different views about sexuality. As noted legal scholar and University of Virginia law professor Douglas Laycock put it, the Equality Act 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.”2
Why is this? I believe there are many reasons, but it is important to highlight two motivations behind the Equality Act and other tactics to limit religious liberty. First, we need to acknowledge the reality of spiritual warfare. Faith-based organizations fulfill the cultural mandate and the Great Commission by serving the poor, caring for the vulnerable, providing a high-quality Christian education to students, and loving the least of these. This work advances the kingdom; it’s no wonder then that the rulers, authorities, cosmic powers, and spiritual forces of evil are arrayed against them (Ephesians 6:12).
But another reason the Equality Act gains support is that LGBT people have not sensed the love of God from churches and communities of believers. I have heard heartbreaking stories of people struggling with questions of sexuality and their faith who were told not to come back to church. LGBT people have seen the church treat other sexual issues differently — there is grace for the adulterer, for the pornographer, for the heterosexual couple that has premarital sex. Yet, for those with same-sex struggles, they see only judgment. We have to do better. Too many LGBT people have had negative experiences with religion, and since they often see their sin singled out, many have come to believe that religion is simply an excuse to discriminate.
Where do we go from here? What can you do? The most important thing is to pray. In the midst of trials and uncertainties of every kind, we can rest in the fact that God is sovereign and in control. God has ordained our prayers as a means by which He works to accomplish His purposes in the world; may we not forget to continually seek His face. There are many hurting people who need the transformative love of Christ and the love of the community of believers. We can and should pray fervently for these things. Pray for those in Washington advocating for a better way.
Choosing to Support Faith-Based Organizations
I also urge you to think about how you can more tangibly support Christian organizations. As it becomes economically and culturally more challenging to adhere to a biblical sexual ethic, I believe we will see more organizations abandoning religious principles to continue business as usual, similar to what we recently saw with Bethany Christian Services. Organizations that continue to adhere to biblical principles will need your support. I ask that you prayerfully contemplate a bold gift to support the sustaining kingdom work of faith-based organizations. Financial support is not the only thing these organizations will need. Maybe it consists of volunteering your time. Maybe it means recommending a Christian college to friends and neighbors. Think creatively about how you can support faithful organizations in this challenging time.
I had the privilege of graduating from a top Christian K-12 school in Alabama, and it provided a solid biblical and educational foundation I appreciate to this day. My family prioritized Christian education and sacrificed to make it happen, both in secondary education and in college. Yet many of my fellow high-school students did not consider a Christian college. As we seek to support kingdom work in the face of continuing religious freedom challenges, prioritizing Christian colleges should be at the top of our list.
There are many exceptional colleges that are faithful to Scripture, provide a variety of majors, and offer high-quality education that prepares students for top vocations and elite graduate schools. Covenant College is the official college of the Presbyterian Church in America, and I would love to see PCA members consider Covenant for any college-bound student. Christian colleges may not be the best choice for every student, but these schools provide a transformative, holistic, faith-integrated, academically rigorous education that the Christian community should support. As we reflect on the challenges and attacks facing institutions of faith, we must be a community of prayer and one that proactively supports faithful organizations by stewarding our resources generously.
1. “Religious minorities are significantly overrepresented in the cases relative to their population, while Christians are significantly underrepresented” p. 356.
2. For cases involving only constitutional claims, the Court ruled in favor of religious freedom less than 60% of the time. But when paired with a statute, the Court ruled in favor of religious protection over 90% of the time.
Joy Elizabeth Mosley serves as director of government relations for the Council for Christian Colleges & Universities (CCCU). She received her bachelor of arts from Covenant College, her master of business administration from Belhaven University, and her doctor of law from Emory University.