The Fairness for All Act: Understanding the Facts
Some religious conservatives have criticized the Fairness for All (FFA) Act, H.R. 5331. Many of the criticisms are simply inaccurate; others involve irresponsible speculation. Some of the criticisms (although mistaken) are at least plausible, especially when they come from critics whom we respect and frequently work alongside in defense of religious freedom.
The critics’ claims about the FFA Act are unpersuasive and rooted in two errors: 1) reading every new religious protection in the Act with deep suspicion merely because it would still be subject to judicial review; and 2) rigidly opposing all laws protecting LGBT people from discrimination, no matter how broadly religious freedom is protected.
Though their intentions are clearly honorable, we respectfully disagree with their complete opposition to any civil rights law to protect LGBT people, and failure to articulate a workable alternative strategy. This is ultimately a battle for the hearts and minds of average Americans, the center of the United States Senate, and federal judges, all of whom are much more pro-LGBT than even our fairest minded critics. The prospect of never addressing discrimination in any form is untenable with those who will make ultimate decisions that will impact religious freedom for at least a generation.
Still, since serious people whom we deeply respect make these claims, we believe they deserve analysis.
Claim #1: The religious protections in the FFA Act are narrowly defined carve-outs that are insufficient to protect religious freedom.
Response: The religious protections are carefully and narrowly defined, but they are not narrow in scope. In fact, the Act’s religious protections are robust and clear, which is why the Human Rights Campaign, ACLU, and some other progressive groups criticize the bill. Notably, the nation’s leading religious freedom scholars have read the bill and support it.
Claim #2: The FFA Act has important religious protections, but not enough to justify supporting it.
Response: Skeptics who use this argument admit that the bill does contain robust religious protections – protections that skeptics of FFA have been incapable of enacting on a standalone basis. Their alternative proposal, the First Amendment Defense Act (FADA) did not move forward even when Republicans controlled both Houses of Congress and the White House. Similar versions failed even in very conservative state legislatures. Further, these FFA critics have failed to identify what kinds of religious protection they would consider to be “enough.” Indeed, some have admitted that no amount of religious protection would justify changing the laws to protect gay, lesbian, and transgender people from discrimination.
In sharp contrast to the Equality Act, the FFA Act preserves the Religious Freedom Restoration Act. RFRA contains the most powerful religious liberty protection in the law – the strict scrutiny standard. It is very hard for government to satisfy the strict scrutiny test, which is why religious freedom skeptics dislike it and why it would be nullified in the Equality Act. While RFRA doesn’t guarantee victory in every legal contest over religious exercise, the United States Supreme Court has never denied a RFRA claim where it has applied RFRA’s balancing test to a set of facts.
On top of RFRA, the FFA Act layers carefully tailored protections for especially sensitive religious interests. All attempts to get even a small subset of such protections enacted through religious-freedom-only legislation (e.g., FADA) have failed.
Claim #3: The FFA Act clearly protects LGBT people from discrimination, but the protections for religious freedom are less clear and are subject to being watered down by the judiciary.
Response: It is impossible to draft a bill that will never need to be fairly interpreted. Demanding perfection is a rhetorical attack because no bill can ever meet it. Why would the critics of FFA predict this outcome from the increasingly conservative courts for the carefully negotiated religious freedom protections? If those protections are watered down in FFA, then they would have been watered down in FADA. Most of the bill’s religious protections are quite clear, which is why some religious freedom skeptics oppose them. The FFA Act was written in heavy consultation with a variety of religious freedom attorneys with practical experience, and with specialists in areas like adoption, family law, and the functioning of faith-based institutions. The nation’s leading center-right religious freedom scholars endorse the bill.
Ironically, many critics of the FFA approach who make the argument that FFA religious freedom protections will not be upheld in the Supreme Court also argue that the Supreme Court will be so pro-religious freedom that it will strike down large portions of the Equality Act that conflict with the free exercise of religion. The critics can’t have it both ways. In truth, it is far easier for the Court to protect religious freedom with express statutory authorization to do so. In numerous ways, FFA provides just that.
As with all legislation, there will be some cases where courts will have to decide ambiguities. But courts are much more likely to favor religious freedom in the context of legislation that is designed to protect religious freedom while jointly protecting LGBT rights. FFA has a clear imperative to protect religious freedom. It shows the intent of the elected branches of government that religious freedom is important, valued, and to be articulated in law. This is a better foundation for court challenges than more ambiguous constitutional provisions against a statute like the Equality Act, which treats religious freedom with much less equity.
Claim #4: Faith-based child welfare providers are inadequately protected by the bill, which creates a risky system for funding faith-based adoption around the country.
Response: Protecting faith-based adoption requires multiple strategies. Faith-based adoption is threatened in every blue and purple state and in many red states. The FFA Act preserves RFRA, a fundamental defense. It then specifically protects faith-based adoption providers’ right to be licensed and to operate in every state. Finally, it creates a funding system that will allow all of these faith-based providers to remain eligible for direct government funding as well as voucher or fee-for-service-type government funding. We broadly consulted with faith-based adoption nonprofits when drafting these provisions that will create a much better situation than the status quo.
The new system has been well tested in analogous federal contexts, as it is very similar to how existing federal programs for faith-based charities and child care dollars are currently administered. Under the bill, faith-based adoption and foster care agencies – even when funded by the government – have a clear right to uphold their faith-based placement standards when selecting, recruiting, or otherwise working with prospective parents. And yet no one eligible to foster or adopt will lack the opportunity to find a welcoming agency.
In the long run, those who advise waiting for legislative language that protects religious agencies without extending any protection to LGBT people will watch religious adoption and foster care agencies be driven out of business or compelled to abandon their religious standards. Such legislation failed to advance under a unified GOP Congress in 2017-2018. Future court decisions are uncertain. Are FFA critics willing to take responsibility for an outcome where faith-based agencies continue to be driven out of work in the states or by a future Congress, administration, or adverse court decision?
Claim #5: FFA would interfere with parental rights, especially for foster parents.
Response: The FFA Act says nothing whatsoever about parents vis-à-vis their own children, and the suggestion that the Act will interfere with their rights is incorrect.
State governments administer our foster care system with the help of federal money. The FFA Act deals with that fact in a balanced way by:
- preventing (progressive) state governments from excluding otherwise qualified foster parents with traditional views about sexuality and gender; and
- preventing agencies that receive federal money from allowing individual foster parents who are fostering LGBT kids to abuse them by subjecting them to harmful conversion therapy or simply denying their sexual orientation or gender dysphoria.
There are longstanding and complicated legal issues around parental rights, and their interaction with the foster system, medical care, and education, that the FFA Act doesn’t even attempt to resolve. That is because family law issues have always been regulated by state law. Critics of the FFA Act have proposed no policy solution that rolls up the custody laws of the 50 states into a federal law, and it is disingenuous to criticize FFA supporters for something the critics themselves are (prudently) unwilling to do.
Claim #6: FFA would force medical professionals to participate in treatment protocols that violate their conscience.
Response: The FFA Act has a specific provision allowing all medical providers to avoid any situation that would violate their conscience. And for the first time, doctors, nurses, and other healthcare workers would also be protected in federally-covered employers which provide healthcare services. At present they can be forced to participate in the provision of certain healthcare services against their religious beliefs. These healthcare protects were written in consultation with faith-based entities that serve all people, including LGBT people, and who believe the FFA Act allows them to structure their practices to avoid these conflicts.
Claim #7: Religious schools would only receive protection if they can prove to the government that they are “sufficiently religious.”
Response: Religious schools have to be religious to receive the protection provided to religious schools for the simple reason that, throughout our laws, only religious organizations are eligible to take religious-organization exemptions. In the FFA Act, religious schools associated with religious denominations are automatically covered. Unaffiliated religious schools claiming to be exempt only have to show that they are “substantially religious” – that they are schools for which religion actually matters. This has been a reasonable and easy standard to meet and prevents schools that are only notionally or historically religious from claiming protections designed for truly religious schools. And there is no requirement that a school receives government “permission” – the issue is whether the exemption applies or not. We are unaware of any religious schools that aren’t explicit and public in their religious character, and our critics have been unable to cite an example of one that would have trouble meeting such a requirement.
Claim #8: Outside of a small number of exempted religious entities, religious employers would be forbidden from hiring in accordance with their mission statements.
Response: The number of religious employers protected by this bill is very large and clearly defined, but it should come as no surprise that more thoroughly religious organizations receive more absolute protections under the FFA Act. That is precisely how current federal law and constitutional law work.
Religious employers that are very religious (including Catholic Charities) enjoy absolute religious protection under the FFA Act. Those religious charities that are somewhat less religious (e.g., employ many people who are not members of the organization’s faith) will continue to have the strong protections for their religious policies that they currently have under federal law.
Every employer with a religious claim will continue to be able to appeal to RFRA for protection. SCOTUS has already shielded religious commercial employers from covering contraception/abortion drugs using RFRA (e.g., Hobby Lobby), and those precedents would apply even more powerfully to religious nonprofits. And the Supreme Court has unanimously upheld the right of religious organizations to select their ministerial staff without interference from nondiscrimination laws.
Claim #9: The FFA Act would make intimate spaces dangerous and use the teaching effect of the law to teach an ideology around gender and sexuality about which many Americans disagree.
Response: 60% of Americans already live in a jurisdiction allowing people to use the bathroom or locker room of their gender identity – and the percentage is growing as more and more states and municipalities enact LGBT civil rights laws (e.g., Virginia’s new law). The only politically viable solution to the tensions this sometimes creates is more privacy for all people. The FFA Act mandates just that for employers, restaurants, gyms, and schools in every state and city in the nation. This is a powerful protection of everyone’s bodily privacy, modesty, and dignity that would immediately apply to every jurisdiction in the country.
And, of course, any assault or other dangerous activity in restrooms is already a crime. The fact is that, despite being in a country with a third of a billion people, and with pervasive media and social media hungry for controversy, actual problems with transgender people in bathrooms or locker rooms are almost unheard of. The vast majority of people have not experienced such an issue personally and don’t even know someone who has.
Claim #10: Non-profit faith-based programs that minister to or serve women but receive federal funds for those programs would be forced into a gender identity regime with which they deeply disagree.
Response: The FFA Act just means that any recipient cannot take money for a federal program it administers and then refuse to allow a gay or transgender person into the program. But the FFA Act has an important clarification: The bill recognizes that there is a difference between sex and gender identity, and that distinction can be made if the essential operation of a program is threatened by conflating the two (e.g., a study on breast cancer in women need not include transgender women in its study population). Again, the critics have failed to identify a single religious federal funding recipient of this kind that completely refuses to serve LGBT people, and the Catholic, evangelical, and Jewish charities that consulted on the FFA bill would be offended by the suggestion that they engage in this kind of exclusion.
Claim #11: FFA challenges freedom of speech, especially by forcing all kinds of people to affirm gender identities that they believe are untrue.
Response: The “pronoun” claim has not proven true in the 60% of America that includes gender identity as a protected category, including conservative Utah or libertarian New Hampshire. With a little bit of respect, commonsense, and tact, name changes and pronouns are a nonissue. And here again, RFRA and the First Amendment’s powerful protections for speech would block any aggressive overreach by government or the courts. Other than complaining about pronouns, critics have not explained what they want to say about transgender people that the FFA Act would supposedly forbid. Speech in the workplace can’t be their complaint since employers already have very broad berth to police the speech of their employees in the workplace, and many are doing so. But even in “woke” corporate America, we are not seeing unworkable or anti-religious speech regimes. Otherwise, critics would surely have documented them.
In truth, the FFA Act increases the protections around these issues for religious employees in secular workplaces. It achieves that by guaranteeing every employee’s right to speak on equal terms with other employees on a topic that the employer allows to be discussed. Religious viewpoints cannot be shut out of the conversation, any more than any other viewpoints. When considering whether the FFA bill is really a challenge to free speech, it is useful to think about what kinds of things a person might like to say that the bill would actually make illegal.
Claim #12: FFA will harm or even destroy women’s sports
Response: We are unaware of any religious entity that stands behind this claim, but it is a leading talking point of some other conservative critics, and it is deeply unpersuasive. The FFA Act does not amend Title IX, which is the part of federal civil rights law which governs sex discrimination in education, and which therefore regulates women’s sports. There are legitimate concerns about sport eligibility by transgender athletes that involve hormones and fair competition, and the right answers probably vary on a case-by-case basis. Eligibility for women’s sports will continue to be determined by the governing bodies of sports, such as the International Olympic Committee, NCAA, and state and local athletic associations.