Congressman Chris Stewart doesn’t expect his bill to pass. But he is proposing the Fairness for All Act anyway. It’s a step of faith for Stewart, a Republican who represents Utah’s second district, and a marker on the bet that it’s possible to find a compromise that protects both religious liberty and LGBT rights.
“Congress can be a frustrating place to be because it’s so polarized. But I don’t think we can throw up our hands and quit,” Stewart told Christianity Today.
Smith proposes the Fairness for All Act in Congress Friday. Advocates of the idea of finding common ground for religious liberty and LGBT rights, led by the Council for Christian Colleges and Universities (CCCU), have spent three years planning, discussing, and strategizing for this moment.
The law would prohibit anti-LGBT discrimination in employment, housing, and places of public accommodation, including retail stores, banks, and health care service providers. Currently, under federal law and in the majority of states, LGBT people can be evicted from rental property, denied loans, denied medical care, fired from their jobs, and turned away from businesses because of their sexual orientation.
The Fairness for All law would offer LGBT people substantially the same protections as the proposed Equality Act, a bill LGBT advocates have long promoted and Democrats in the House passed earlier this year, only to see it stall in the Senate. The Equality Act, however, includes no exemptions for religious organizations.
“The Equality Act was written in such a way that a religious person like myself couldn’t vote for it,” said Stewart, who is a member of the Church of Jesus Christ of Latter-day Saints. “[Democratic legislators] wrote it so that they could say to LGBT people, ‘No Republican voted for it; they don’t care about people like you,’ which just isn’t true.”
The Fairness for All Act exempts religious groups—both churches and nonprofits—from the anti-discrimination rules. Churches wouldn’t be required to host same-sex weddings. Christian schools wouldn’t have to hire LGBT people. Adoption agencies could receive federal funding even if they turned away same-sex couples looking to raise children. The law would also protect the tax-exempt status of religious groups that condemn homosexuality.
The anti-discrimination rules would not apply to for-profit businesses with 14 or fewer employees, excluding them from the definition of “public accomodation.” This would mean small-business owners such as the Colorado baker who refused to make a wedding cake for a same-sex ceremony in 2012 would have the right to refuse service on religious grounds.
The legislation faces strong opposition from LGBT-rights groups who say it enshrines discrimination into law—and from conservative religious groups who say it concedes too much to LGBT-rights groups.
Leaders from more than 90 evangelical groups signed a statement rejecting any legislation protecting sexual orientation or gender identity after the CCCU started to advocate for a Fairness for All law in 2016. The list of signers included The Gospel Coalition president D. A. Carson, Focus on the Family president Jim Daly, First Things editor R. R. Reno, and Southern Baptist leaders Russell Moore and Al Mohler.
“Christians cannot support [Fairness for All] for this overarching reason: It is grounded in an unbiblical conception of the human person,” Owen Strachan, director of the Center for Public Theology at Midwestern Seminary, wrote in September. “The Scripture will not allow us to see any ungodly ‘orientation’ or ‘identity’ as essential to our humanity, as directed toward our flourishing, and thus enshrined in law as a protected category.”
Other evangelical leaders, however, including pastor Tim Keller, legal scholar John Inazu, and CT editor in chief Mark Galli, have argued that a both/and approach is possible. The Fairness for All idea has also received support from some legal scholars, and it has been endorsed by the Seventh-day Adventist Church and the Church of Jesus Christ of Latter-day Saints. A similar law has been enacted in Utah, with the support of the LDS church.
Despite opposition from some conservative evangelicals, the CCCU has continued working toward a legislative solution that would connect religious liberty and LGBT rights. The organization partnered with the American Unity Fund (a politically conservative LGBT-rights group) and the 1st Amendment Partnership (a religious-freedom advocacy organization) to develop the legislation and build support for the legislative strategy.
“What are the available alternatives?” said Tim Schultz, president of the 1st Amendment Partnership. “Just hoping for permanent gridlock on this issue and just opposing LGBT rights ferociously at every turn. For practical reasons and, frankly, for witness-of-the-church reasons, that alternative is quite unattractive.”
Expanding the Coalition
Proposing the legislation is a step toward expanding the coalition of supporters, according to advocates. Shirley Hoogstra, president of the CCCU, said passing any major legislation is a long process that often moves in fits and starts. Even if the bill doesn’t pass this session, it could succeed in establishing Fairness for All as a viable political option.
“We found that people just don’t believe that religious people and LGBT people can come together. They say it’d be nice, but it’s just not possible,” Hoogstra said. “This signals to the deciders—House representatives and senators—that actually it is possible. We’re trying to explain and educate and socialize with our bill.”
If legislators come to think it’s possible to embrace LGBT rights and religious liberty, they may be able to convince voters. Michael Wear, chief strategist for the And Campaign and former faith outreach director for President Barack Obama, said that in a pluralist society where people disagree about very basic things, it’s critical that leaders help people find common ground.
“Proposing a bill helps voters imagine a different possibility,” Wear said. “It’s like, this is an option. This is on the table. We need to make this conversation more concrete, not less. Voters don’t have an imagination for how it would be possible. It takes leadership to take real risk and show them how it could be.”
The And Campaign has urged all the 2020 presidential candidates to come out in support of the Fairness for All Act.
Pursing Common Ground
Fairness for All advocates know, however, that they’re fighting an uphill battle. In many representatives’ districts, compromise can be costly come election time.
“The trend in society is towards polarization,” Schultz said. “It’s towards tribalism and crushing your enemies, like that Conan the Barbarian quote, ‘What is the best in life? To crush your enemies, see them driven before you, and hear the lamentation of their women.’ But is that really how Christians should be doing politics?”
Chris Stewart doesn’t think so. He said his own commitment to religious liberty and a close relationship with a gay person made him think common ground was possible.
“I don’t want to be Pollyannaish,” he said. “But I think the uncertainty with these issues in the courts and with elections, after a period of time, will bring both sides into a position where they really think this is a workable compromise.”
The bill will be referred to committee for review.