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The Equality Act Has a Foundational Legal Problem
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The Equality Act Has a Foundational Legal Problem

It sweeps beyond the legitimate scope of nondiscrimination law.

David French
Feb 25, 2021
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The Equality Act Has a Foundational Legal Problem
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(Photo by Al Drago/Getty Images.)

Let’s begin with a simple question. What’s the purpose of nondiscrimination law? As a general matter, such laws are not designed to eliminate all discrimination on the basis of the protected characteristic. Instead, the desire is to eliminate invidious discrimination. The phrase “invidious discrimination” is critical. It’s a legal term of art that generally means “a classification which is arbitrary, irrational and not reasonably related to a legitimate purpose.”

Indeed, the effort to eliminate all discrimination based on protected characteristics can result in unjust and nonsensical outcomes. Do we want laws holding that separate male and female lockers and showers are per se unlawful? Or should there be no legal preference for female guards to perform strip searches of female prisoners? Should we end the distinction between male and female sports and simply say that the best athlete gets the spot? In each of these circumstances, a truly sex-blind system would actually hurt women—achieving a result the opposite of the law’s intent.

On the other hand, we also know what invidious sex discrimination looks like. We see it in hostile environment sexual harassment, when women are subjected to gross, sexist abuse in the workplace. We see it when employers refuse to hire female workers because they “might get pregnant.” We see it in quid pro quo sexual harassment, when women are coerced into trading sex for promotions or pay raises. In those circumstances, nondiscrimination law stands as a firewall against systemic injustice and exploitation.

A truly effective and just nondiscrimination law does its best to navigate the distinction between invidious and benign (or even necessary) acts of discrimination. It recognizes the limits of the state’s interests, and it pulls back when it conflicts with fundamental constitutional rights.

And this brings me to my problems with the Equality Act, the Biden Administration’s signature legislative initiative to formalize protections for LGBT individuals in American civil rights law, which the House passed on a near-party-line vote today. The act would amend federal civil rights laws to include explicit protections for discrimination on the basis of sexual orientation and gender identity, but it has provisions that sweep too broadly—far beyond any reasonable conception of invidious discrimination. It risks creating injustices for other categories of Americans who are also protected by nondiscrimination law.

The Equality Act has two core substantive flaws. First, it renders virtually all biological sex distinctions unlawful, regardless of context. And second, it explicitly attempts to diminish religious liberty protections for religious individuals and institutions by stating that the Religious Freedom Restoration ACT (RFRA) “cannot provide a basis” for challenging the “application or enforcement” of the act. Let’s take these concerns in turn.

Even when we share the goal of treating trans Americans with dignity and respect, biological distinctions still matter, and disregarding them can be unjust and even discriminatory on other grounds. Let’s consider two examples. In a women’s locker room, exposure to male genitalia is generally considered to be indecent exposure or an act of harassment. Is the act cleansed of its harm if the penis belongs to a trans female? In sports, there are biological distinctions between girls and trans girls even if trans girls have received treatments that reduce testosterone or other male characteristics that give men athletic advantages over women.

I’m not one who says that the Equality Act will “destroy women’s sports.” That’s hyperbole. After all, the NCAA has had a trans-athlete policy since 2011, and women’s sports are robust and intact. But it’s still highly likely that the Equality Act will create and mandate unnecessary individual injustices.

Moreover, while there may not be many trans women who seek to force, for example, a female beautician to wax male genitalia or who wish to spend the night in overnight quarters reserved for women only in a battered women’s shelter, the Equality Act will again create and mandate unnecessary individual injustices.

The attack on religious freedom is also unjust and unnecessary. It’s unnecessary because existing religious liberty doctrine isn’t incompatible with the Civil Rights Act. For example, in the 1968 case Newman v. Piggie Park, the Supreme Court held that a religious liberty defense to racial discrimination at a chain of drive-in restaurants and sandwich shops was “patently frivolous.”

Secular employers and establishments cannot escape the Civil Rights Act simply by citing divine sanction for their acts of discrimination. After all, RFRA applies to federal civil rights law now, and federal civil rights enforcement is robust. Nondiscrimination law can coexist with RFRA. It has coexisted with RFRA. Congress does not need to degrade religious liberty to expand civil rights.

But if Congress and the Biden administration do limit RFRA’s scope, it may well invite a largely pointless but immensely divisive wave of litigation against those religious institutions that maintain policies and practices that are consistent with the traditional doctrines of their faith. With or without RFRA, the Supreme Court is on a decade-long streak of solidifying constitutional religious liberty protections, and when the Equality Act conflicts with the Constitution, the Equality Act will fall.

Indeed, there’s a case this Supreme Court term—Fulton v. City of Philadelphia—that will tell us a great deal about the applicability of nondiscrimination law to religious institutions. I’ve written about Fulton before:

The petitioners in Fulton seek protection from a Philadelphia rule that required a Catholic foster care agency to provide written endorsements for same-sex couples (in violation of church teaching) as a condition of participating in the city’s foster care system. 

In addition, the petitioners are asking the court to revisit Employment Division v. Smith, a 1990 Supreme Court opinion that substantially restricted the strength and scope of the Free Exercise Clause. If the petitioners prevail, it could well represent the most significant advance for religious liberty in decades.

The Fulton case is likely to add to a pile of law and precedent that, among other things, protects the right of religious employers to impose religious litmus tests on their employees, exempts religious employers from nondiscrimination statutes when hiring and firing “ministerial” employees, grants religious educational institutions the right to exempt themselves from Title IX, grants religious organizations a right of equal access to public funds and public facilities, and protects Americans from discrimination on the basis of religion in the workplace. 

It is possible to protect LGBT Americans from invidious discrimination while still preserving religious liberty and recognizing material biological distinctions. Indeed, existing civil rights law recognizes a concept called a “bona fide occupational qualification” (BFOQ) which allows for discrimination on the basis of sex, religion, or national origin when discrimination may be “reasonably necessary [for] carrying out a particular job function in the normal operation of an employer's business or enterprise.”

(For an example of the legally valid use of sex as a BFOQ, I’d urge you to read Dothard v. Rawlinson, where SCOTUS upheld an Alabama rule limiting “contact positions” in Alabama’s state prisons to male prison guards in part because women were deemed a potential security risk in an often-violent male-dominated space. )

A sensible BFOQ regime would allow employers to consider biological distinctions when drawing those biological distinctions is “reasonably necessary” for the particular job function. A similar regime could exist for facilities like locker rooms and showers or for activities like athletics. And don’t think that recognizing biological distinctions would create discriminatory exceptions that swallow the nondiscrimination rule. In practice, BFOQs are narrowly drawn and must be justified by substantial evidence.

In its effort to erase legally recognizable biological sex distinctions, even when those distinctions are both real and material to the relevant employment or activity, the Equality Act goes beyond the legitimate scope and purpose of nondiscrimination law. It strikes at actions that are not invidious, that are not “arbitrary” or “irrational.” It is, quite simply, far too broad.

One more thing …

Your must-read assignment of the day is this remarkable story from Michael Powell in the New York Times. It’s centered around an alleged racial incident at Smith College in Massachusetts. It begins like this:

In midsummer of 2018, Oumou Kanoute, a Black student at Smith College, recounted a distressing American tale: She was eating lunch in a dorm lounge when a janitor and a campus police officer walked over and asked her what she was doing there.

The officer, who could have been carrying a “lethal weapon,” left her near “meltdown,” Ms. Kanoute wrote on Facebook, saying that this encounter continued a yearlong pattern of harassment at Smith.

“All I did was be Black,” Ms. Kanoute wrote. “It’s outrageous that some people question my being at Smith College, and my existence overall as a woman of color.”

Kanoute’s allegations were covered from coast to coast, but there was one problem—the evidence didn’t support her story:

Less attention was paid three months later when a law firm hired by Smith College to investigate the episode found no persuasive evidence of bias. Ms. Kanoute was determined to have eaten in a deserted dorm that had been closed for the summer; the janitor had been encouraged to notify security if he saw unauthorized people there. The officer, like all campus police, was unarmed.

Smith College officials emphasized “reconciliation and healing” after the incident. In the months to come they announced a raft of anti-bias training for all staff, a revamped and more sensitive campus police force and the creation of dormitories—as demanded by Ms. Kanoute and her A.C.L.U. lawyer—set aside for black students and other students of color.

But they did not offer any public apology or amends to the workers whose lives were gravely disrupted by the student’s accusation.

This is a tale of how race, class and power collided at the elite 145-year-old liberal arts college, where tuition, room and board top $78,000 a year and where the employees who keep the school running often come from working-class enclaves beyond the school’s elegant wrought iron gates. The story highlights the tensions between a student’s deeply felt sense of personal truth and facts that are at odds with it.

Read the entire thing. It’s a remarkable piece of reporting, but here’s a warning—it may make your blood boil.

One last thing …

I sincerely apologize. I’ve written an entire week’s worth of newsletters without attaching the new trailer of the Snyder Cut of Justice League. Inexcusable. Watch this and tell me it’s not glorious.

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Tyler
Feb 26, 2021

Sighhhh, another day in which the facts of the Fulton case is wildly misrepresented. Here are the facts: Philadelphia contracts with about thirty nonprofit agencies to help it assess whether families satisfy state criteria for taking in foster children. Those criteria do not require the would-be foster parents to be married, much less straight. And a city ordinance requires that all those providing services on the city’s behalf not discriminate on the basis of race, sex, or sexual orientation.

When the city learned that two of its contractors—Catholic Social Services (CSS) and Bethany Christian Services—categorically refused to certify fully qualified families if they were headed by same-sex couples, it informed both groups that such refusals violated the TERMS OF THE CONTRACT. Bethany agreed to comply with the contract by not excluding same-sex couples, and Philadelphia continues to contract with it. But CSS refused, so the city terminated its contract. It continues to pay CSS approximately $17 million every year, however, to provide a wide range of other services to children and families in the foster care system. It has merely declined to hire CSS to certify foster families if CSS will not apply the government’s criteria for that certification.

The basic question in Fulton, therefore, is whether the constitutional guarantee of religious freedom allows a religious organization to discriminate against same-sex couples in carrying out a government program/contract. In order to rule in favor of the church in Fulton the superconservative majority SCOTUS will have to abandon three basic tenets that form the bedrock of conservative constitutional jurisprudence: 1) the Constitution’s limitation to negative rights; 2) the federal government and the states have authority to set the terms for their own business, and; 3) the notion that a law’s disparate impact is insufficient to violate the Constitution.

as for 1), as Justice William Rehnquist wrote in 1983, the Court has long rejected the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State. In other words, conservatives have long rejected the argument that the Constitution established affirmative entitlements. Rather, conservatives have instead maintained that the Constitution confers what’s called a “negative right” that guarantees the individual to be free from state interference. Now apply this traditional conservative precept of “negative rights” to the facts in Fulton above.

What any rational person should notice is that this is demonstrably not a “negative rights” claim where an organization or individual is asking for the right to be free from government interference. CSS is instead arguing it has the right to violate the terms of a government contract it VOLUNTARILY entered into. What the religious organization in Fulton is after, is in fact an affirmative entitlement to millions of dollars in government funds to perform a government program, while violating the terms of the government contract and discriminating against individuals seeking to participate in the program. Nevertheless, despite the claim in Fulton representing everything conservatives have said the Constitution was not over the past 50 years, CSS is widely expected to prevail. Because religion must always win and everyone else must lose.

The second legal principle conservatives will abandon for religion is the principle that “when the government is managing its own affairs, as opposed to exercising sovereign power to regulate private activity, it must have broad leeway to set the terms.” I am ol enough to remember a 2006 SCOTUS decision declaring that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions,” as “there would be little chance for the efficient provision of public services” if governments could not exercise this authority. But that was before this new superconservative majority who seems hell bent on establishing religion as superior to all other rights, particularly the rights of LGBT citizens to be free from discrimination when participating in government programs.

The third point requires much more time and this is long enough anyway. Put simply, nothing in the Constitution justifies why a race discrimination claim requires proof of discriminatory treatment and intent, while free exercise claim can be satisfied without proof of either. I go into more detail here: https://abovethelaw.com/2020/07/why-is-proving-race-discrimination-a-lot-harder-than-proving-religious-discrimination/

I wish, oh I wish the blatant mischaracterization of religious liberty cases would stop. It helps NO ONE, to establish a system that favors religious citizens over nonreligious ones. This can only lead to further divide.

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ncpack2010
Feb 26, 2021

I voted for Biden, but this is what I was worried about even as I voted for a Democrat for the first time in my life last November. In tackling a problem that at most needs a scalpel, this law takes a sledgehammer. I'm a Christian who is a healthcare professional, thinking that this law will just affect giant Catholic hospital systems is myopic. I've worked at numerous small scale Christian clinics that serve socioeconomically disadvantaged people that have frankly been left behind by secular society. We were the only people who would go into these communities and provide health care and social support. The clinics took care of everyone and never asked any questions. But what happens when they'll refuse to give hormone blockers or do abortions? I know that we're all running scared right now because we have no idea where this ends up. My whole life is dedicated to serving people in desperate poverty, but given a choice between my medical license and giving people drugs that I think are harmful I know which direction I'll go. When the cultural left is willing to shut down organizations that actually try to alleviate poverty in this country over ridiculous Culture War fights, it's a tragedy for the people downstream who are going to be devastated by these stupid ideological wars. There are a LOT of things that my government funds that I'm morally opposed to but I just accept as a fact of like of being a citizen in this country that not everyone thinks like me and sometimes I just have to suck it up in the interests of maintaining a stable society. Everyone would be much better off if we just let people be and tried to get along with each other instead of ramming our pet ideological projects down other people's throats. Oh also, maybe this should be a sign that we evangelical Christians should be putting our money into building an infrastructure that can exist outside government interference rather than pumping a morally bankrupt Republican Party full of cash.

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