But the Trump era has empowered religious conservatives, who see more than 200 conservative federal judges, a conservative majority on the Supreme Court and a razor-thin majority in Congress that both sides know could flip in two or four years.
The tensions created by this new, more equal balance of power between supporters of LGBTQ equality and religious freedom rights are erupting this week, when a comprehensive LGBTQ rights measure called the Equality Act comes before the Senate Judiciary Committee.
“We have one shot to get this done. We’ve been trying for 50 years,” said Kasey Suffredini, an attorney and transgender man who heads Freedom for All Americans, a group trying to build bipartisan consensus for the Equality Act.
As written, the act would override existing law that says the federal government must show it has a compelling interest before curbing religious rights. Because of that, many longtime watchers of this conflict believe the bill, which passed in the House, in its current form won’t win approval in the Senate and get to President Biden. So, advocates such as Suffredini are trying to keep dialogue going as the Senate debate starts Wednesday. He is encouraged by the support among a new crop of religious conservatives for some LGBTQ protections, even if they want exemptions.
“I think we can’t lose sight of that common ground because this is actually a really historic moment,” he says.
But Suffredini’s group argues that the Equality Act strikes the right balance because it preserves some of the existing religious exemptions that apply to other aspects of the Civil Rights Act of 1964, including the right of religious groups to discriminate in hiring for positions involved with teaching and preaching the faith.
Among those who have supported some expanded LGBTQ protections are the Mormon Church, Seventh-day Adventists and the Council of Christian Colleges and Universities, the largest network of U.S. Christian higher-education institutions. Shirley Hoogstra is president of the association of 180 theologically conservative schools. The two landmark Supreme Court cases altered the legal reality for conservative, faith-based institutions, which receive many millions through federal partnerships. They also shifted her thinking.
“There was a time when this issue was not on my radar. There was no threat to the way in which religious schools could operate and no momentum I understood at the time. But I have come to see that LGBTQ people should have the same ease of movement about their lives. They shouldn’t run into unexpected, dignity-dismissing episodes,” she said.
She in recent years became a strong advocate of a measure called Fairness for All, which widely broadens LGBTQ protections in public life but allows significant exceptions for faith-based institutions. For example, religious hospitals wouldn’t be required to offer gender-affirming surgeries, religious universities could keep code-of-conduct policies for staff and students that ban gay relationships, and houses of worship that are gender-segregated — such as orthodox synagogues and mosques — wouldn’t lose federal security grants they use to protect themselves from attacks.
Yet including these exceptions has consequences that many say are immoral. Jesse Hammons, a transgender man, is suing the University of Maryland Medical System after his gender-affirming hysterectomy was canceled by a Catholic subsidiary.
“There are some people who say we need to compromise. But I don’t know how to compromise on existing. I’m asking to go to a hospital that already provides the health care I need and provide me the same care that they would provide any other patient,” he said.
The Equality Act would amend the Civil Rights Act to ban discrimination based on sexual orientation and gender identity. It would include, among other areas, employment, education, housing and public accommodations — a category it would also broaden. What makes it more sweeping than past anti-discrimination measures is it explicitly overrides the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burdening” individuals’ exercise of religion unless it is for a “compelling government interest.”
While enacted in 1993 with overwhelming bipartisan support, the RFRA in recent years has been most loudly championed by social conservatives. LGBTQ and civil liberties advocates say the RFRA has been used to allow discrimination.
The Equality Act matches Americans’ fast-moving rejection of discrimination based on gender identity and sexual orientation. More than 6 in 10 Americans say business owners should not be allowed to refuse services to LGBTQ people on the basis of religion.
However, the Equality Act would reframe the legal nature of religious spaces, said Dan Balserak, director of religious liberty at the U.S. Conference of Catholic Bishops. “The Equality Act takes these spaces that have traditionally been regarded as privately operated enterprises and brings them in reach of this statute that was intended to combat race discrimination,” he said.
That’s exactly the right comparison, say the act’s supporters. Any challenges experienced by religious institutions and people will either be worked out in court or should be set aside so that LGBTQ people can have full equality, they say.
“You’re talking to a Black man who has seen separate and not equal,” said Kylar Broadus, a transgender attorney and activist, recalling visiting segregated bathrooms and water fountains as a child. "I was born in the belt buckle of the Bible Belt, and I’m still a Christian to this day. … But I don’t think we can deal away people’s human rights.”
Sister Simone Campbell, an attorney who heads the liberal Catholic advocacy group Network, brushed off conservative faith groups’ concerns, saying the Supreme Court will ensure proper exemptions if needed.
“The frustration is, it seems to me we’re being called to be more pastoral and less bureaucratic,” she said. “My problem is: Why do you want to exclude? In my tradition, Jesus included everyone.”
Sponsors of the bill won’t share details about internal discussions, but it’s clear they must weigh the possibility of nothing passing vs. amending it.
“The first step is a lot of dialogue, a lot of consideration with civil rights and LGBTQ groups, but nothing will be decided or adjusted lightly or without sensitive consultation,” said Sen. Jeff Merkley (D-Ore.), one of the act’s sponsors.
On Friday, Sen. Susan Collins (R-Maine), whose support is seen as key, listed amendments needed for her support of the Equality Act. One, according to the Washington Blade, is religious exemptions.
Merkley cited the Supreme Court’s 2020 Bostock decision, in which the court established that LGBTQ people are covered by
federal civil rights employment protection. However, judges in that decision noted it did not address the issue of the free exercise of religion, and it would be left to other rulings.
More than 21 states have passed laws explicitly prohibiting LGBTQ discrimination in employment, housing, public accommodations or other realms. Like federal law, all of these laws offer some religious exemptions, with 10 of those states taking a similar approach as the Equality Act.
Supporters of the bill argue that it would set the floor for the other 29 states that have no LGBTQ protections, and that those states could add additional religious exemptions as they see fit.
The Fairness for All bill was put forward in the House last month by Rep. Chris Stewart (R-Utah). It is modeled on the 2015 measures adopted in his state, and its backers say their approach is the only one that will succeed in a deeply polarized Congress. Right now, the Equality Act has no Republican sponsors, and Fairness for All has no Democratic co-sponsors, though it does have the support of some more theologically conservative Democrats such as Michael Wear, who ran faith outreach for President Barack Obama.
“If you don’t see a logical, reasonable path forward to get what you want, and there are genuine concerns LGBT people are suffering without protections, isn’t there a way to try to get what you can now and come back for more later? ” said Wear.
Critics of Fairness for All contend it’s worse than a compromise because they say it gives LGBTQ people less status in federal civil rights law than other protected classes such as race. Yet that is how some conservatives feel things should be.
In its primer on the act, the U.S. Conference of Catholic Bishops put quotes around “LGBT people” and say they are not subject to the kind of widespread discrimination that prompted the initial Civil Rights Act. “On the contrary, ‘LGBT’ people today are often held in high regard in the market, as well as the academy, local governments, and media. Some studies suggest that people who identify as homosexual earn higher incomes than the national average,” the group says.
It’s not clear what would happen if the Equality Act passed, whether conservative religious organizations would change their policies or choose to stop partnering with the government.
“I think this moment presents a real challenge for Catholic groups. We need to walk that walk, to continue to serve everyone,” Balserak said. “I don’t think the concern is losing massive amounts of money. It’s being punished for the beliefs we hold.”
Sam Ruff has a personal stake in fate of the Equality Act. He is president of the LGBTQ student club Refuge at Wheaton College, a Christian school where all community members must commit to no sexual relations outside of heterosexual marriage. If the Equality Act passes, he understands the school could lose public funding and have to downsize. But he said it’s still worth it for the act to pass.
“It’s a false dichotomy to separate faith from LGBT protections. I definitely think any sort of discrimination against queer people is unacceptable, and as Christians there’s no reason we should be doing so," he said.