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Attorneys call Equality Act an overreach, and they say it may backfire


  • ...The U.S. Capitol is seen in Washington Jan. 9, 2021. (CNS photo/Tyler Orsburn)
  • ...House Speaker Nancy Pelosi, D-Calif., addresses a news conference with fellow congressional Democrats at the U.S. Capitol in Washington Feb. 25, 2021, ahead of expected House passage of the Equality Act. The measure passed in a 224-206 vote. (CNS photo/Carlos Barria, Reuters)
  • ...Democratic members of the U.S. House of Representatives pose for a photograph holding Transgender Pride flags on Capitol Hill in Washington Feb. 25, 2021, ahead of a vote on the Equality Act. (CNS photo/Tom Brenner, Reuters)

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If it becomes law, the Equality Act, which has been described as a one of President Joe Biden's top legislative priorities, will be an overreaching use of federal power to shut down religious liberties and traditional views on gender, according to attorneys tracking the measure.

"It is so expansive," said Paul Jonna, a California-based special counsel with the Thomas More Society in Chicago. He has represented various California agencies or businesses that have come under fire for policies based on the traditional understanding of marriage and gender.

"The act is essentially an all-out assault on religious freedom; it is Congress imposing their views on gender, dismissing sexual differences and presenting gender as a social construct," Jonna told Catholic News Service in a Feb. 25 phone call.

"It is a threat to free speech, to careers, to churches and faith-based facilities to force them to host events that are opposed to their beliefs," he said.

Democratic lawmakers and advocates say the Equality Act would make significant progress toward legal protections for all Americans, including LGTBQ+ individuals, who advocates say do not have sufficient protections from discrimination, especially with regard to employment.

Critics say if the bill becomes law, it would portray time-honored religious beliefs as un-American and would go well beyond employment protections -- and without reasonable religious exemption clauses.

Jonna, who also is president of the San Diego Chapter of Legatus, an organization of Catholic business leaders, said the Equality Act would result in a tidal wave of religious liberty litigation and may well create even stronger pushback.

"It is definitely being used as a tool to advance an agenda of those who have a distorted view of human nature and who want that imposed on all of society -- and it will backfire, creating way more problems than it solves and it will do great damage to women and completely destroy the concept of male and female in our culture and undermine the goals it seeks to advance," Jonna told CNS.

"We expect a lot of litigation; I am sure we will be involved in litigation around this and many other religious freedom law firms as well," he added. "Our only saving grace is that we have a conservative majority in the U.S. Supreme Court."

The House passed the bill, H.R. 5, in a 224-206 vote Feb. 25. It amends the Civil Rights Act of 1964 to prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, public education, federal funding, the credit system and jury duty.

House Republicans planned to introduce a compromise measure Feb. 26 called the Fairness for All Act. The Washington Blade reported Feb. 24 that one difference from H.R. 5 is it would "clarify protections based on race, color and national origin."

Also, the compromise bill, unlike the Equality Act, does not say the 1993 Religious Freedom Restoration Act, or RFRA, cannot be used "as a defense in court against allegations of illegal anti-LGBTQ discrimination," the Blade said.

A Senate version of the Equality Act has yet to be introduced; it would need 60 votes for passage. If it were to pass, differences between the Senate and House measures would have to be reconciled, and then sent to Biden to sign.

The St. Thomas More Society's Jonna said that until now, no federal law has exempted itself from RFRA -- approved by Congress in a bipartisan vote and signed into law by President Bill Clinton to ensure religious freedom interests are protected.

That the Equality Act would exempt other laws from RFRA is an indication of just how radical it really is, he said.

"The scope of industries and organizations included (for protection) in this massive piece of legislation is a great threat to religious freedom. It puts at risk people of faith who will be excluded: Either compromise your beliefs or get out of the way," Jonna told CNS.

He has assisted in defending a Catholic Charities residential program in California for female victims of human trafficking when local officials tried to force the program to admit biologically male, transgender persons.

"We worked out a resolution to that case, but a law like this would destroy the scientific definition of gender and a home like this would have to be open to males," Jonna said.

Much of the criticism of the Equality Act has centered on its expected impact on the sporting world, where women would have to compete against biological males and vice versa.

The Equality Act has garnered criticism from both feminists and other faith leaders, including Orthodox Rabbi Yaakov Menkin, who co-wrote a Feb. 24 essay for Newsweek, calling the legislation flawed, hateful and unthinking extremism.

"Civil rights legislation is intentionally a blunt legal instrument, historically designed to redress ongoing racism against descendants of former slaves," Rabbi Menkin wrote.

"The Equality Act thus deems a religiously motivated refusal to participate in a same-sex marriage to be no different than a KKK member's refusal to cater a multiethnic couple's nuptials," he said. "Traditional religious practices, according to the Equality Act, are as unacceptable as was Jim Crow."

In favor of the Equality Act is Sister Simone Campbell, a Sister of Social Service, who is the outgoing executive director of the Catholic social justice lobby Network. She welcomed Biden's support for the Equality Act, saying that as a Catholic, the president recognizes that a tenet of the faith is that all are welcome.

"And if all are welcome, all need to be protected. I think the bedrock position of our faith is to welcome and secure safety and the ability to flourish for all," Sister Campbell said in a Feb. 24 statement. "President Biden comes with a very deep sense of what our faith calls us to, and that is to ensure that everyone can flourish, even if we disagree with them."

The chairmen of five U.S. bishops' committees said Feb. 23 the Catholic Church upholds the human dignity of all and supports "nondiscrimination principles to ensure that everyone's rights are protected."

However, they said, the Equality Act as written will "discriminate against people of faith" by adversely affecting charities and their beneficiaries, conscience rights, women's sports and "sex-specific facilities"; will provide for taxpayer funding of abortion; and will limit freedom of speech.

Matt Sharp, a senior counsel with the Alliance Defending Freedom, which has defended three Connecticut-based high school female athletes who objected to biological males being allowed to compete alongside them, said his agency's focus will especially turn toward the U.S. Senate, "being sure that senators are aware of the harms that the Equality Act will cause," he told CNS by phone Feb. 25.

"We see realistic threats it presents to religion and religious schools and colleges," Sharp said. "If they receive federal funding, those schools will be told they have to change their belief on marriage and sexuality if those students are to receive funds -- and those schools will have their existence threatened by the equality act."

Sharp was active in defending the Downtown Hope Center, a women's homeless shelter in Anchorage, Alaska, when they were told they had to accept transgender women who are biological males into their overnight program.

For almost a year, the Anchorage Civil Rights Commission officials threatened to take away the safe haven, leaving homeless women without that resource. The Hope Center filed a lawsuit so it could continue to serve its vulnerable female population, including victims of sex trafficking.

The Equality Act also would heavily impact religious liberty as it relates to employment.

"What does it mean for those institutions that hold a distinction between the sexes and now you must hire someone who believes something contrary to those beliefs and someone who lives contrary to those beliefs? That fundamentally undermines the religious mission and purpose of these organizations," Sharp said.

He also cited the example of the medical community, where doctors and others could be forced to perform "gender reassignment" surgery on youth questioning their gender identity.

"We would see doctors being told they might have to do some of those procedures which they feel might be harmful and violate their ethical beliefs," Sharp said.

"It is part of the transgender battle: the power of the government to compel people to violate their beliefs religion and ethics," he added.

"This is giving the federal government a lot of power to come after people and force them to compel individuals to violate their beliefs on the nature of male and female and that is a government we should be very worried about."

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