Puzzle: Many reporters ignoring Equality Act's impact on this crucial Schumer-Kennedy legislation

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I have been following the Equality Act coverage and, so far, a crucial piece in this puzzle has been missing.

Thus, here is a one-question pop test. That question: Name the piece of stunningly bipartisan legislation — vote was 97-3 in U.S. Senate — from the Bill Clinton era that will be gutted by passage of the Equality Act? Hint: It was introduced in the House by Rep. Chuck Schumer (D-NY) on March 11, 1993, and in the Senate on the same day by the late Sen. Ted Kennedy (D-MA).

We are, of course, talking about the Religious Freedom Restoration Act (RFRA). In today’s advocacy-media age that would, of course, be the “Religious Freedom” Restoration Act, complete with “scare quotes.”

The key is the impact the Equality Act would have on religious parachurch groups, social ministries, hospitals and educational institutions, from preschools to universities.

Now, does everyone agree on how the Equality Act would impact the First Amendment rights of religious believers and their doctrine-defined ministries?

Of course not. There are strong, credible voices on both sides of that debate that deserve serious, accurate, informed coverage by the mainstream press. However, this process — let’s call it “journalism” — would require newsroom managers to admit that this issue exists.

That’s why Andrew Sullivan — one of the world’s best-known gay public intellectuals — called the introductory Washington Post Equality Act story a “press release” (think PR) for the Human Rights Campaign. Here is that story’s description of the legislation’s impact:

The Equality Act would amend existing civil rights laws, such as the Civil Rights Act of 1964 and the Fair Housing Act, to explicitly ban LGBTQ discrimination in the workforce, housing, education, credit, jury service and other areas of American life.

If passed, the legislation would provide the most comprehensive LGBTQ civil rights protections in U.S. history, advocates say, significantly altering the legal landscape in a country where more than half of states lack explicit legal protections on the basis of sexuality or gender identity. …

Decades in the making, the Equality Act passed in the House in May 2019 but was blocked in the Republican-led Senate. Now, with Democratic control of the House, Senate and White House, the reintroduction of the bill represents the “best opportunity we have ever had to have comprehensive legal protections for LGBTQ people,” said Alphonso David, president of the Human Rights Campaign.

What do First Amendment activists — there are cultural liberals concerned about this issue, as well as conservatives — have to say in response to that?

Note that the following does not include any quotations drawn from interviews with Equality Act critics, including the many, many church-state activists who have addressed these issues.

Also, note that there are no references to impact on RFRA and the legislation’s impact on, to name one issue, Catholic health-care institutions or the work of Catholic medical professionals, in general.

Sen. Mitt Romney (R-Utah) has said he would oppose the Equality Act because of its lack of “religious liberty protections.”

“Sen. Romney believes that strong religious liberty protections are essential to any legislation on this issue, and since those provisions are absent from this particular bill, he is not able to support it,” Arielle Mueller, a Romney spokesperson, said in a statement to the Washington Blade this week.

Republican lawmakers made similar arguments during an emotional House debate in 2019, saying the bill infringes on the rights of people whose faith-based convictions are opposed to same-sex marriage or other LGBTQ rights.

The rights of “people”? Yes, but the key debates focus on the rights of religious ministries linked to all forms of traditional religious faith.

News consumers seeking a similarly bloodless, voiceless “conservative” response to the Equality Act can also turn to USA Today:

Some conservatives have expressed concerns that the legislation could infringe upon religious liberty or lead to inequality in athletic competitions if transgender women compete against cisgender women. 

The conservative Heritage Foundation, which opposes the bill, says it could threaten religious freedoms, give transgender athletes an unfair advantage and harm constitutional freedoms.

Did anyone in the mainstream press spot the RFRA angle?

Here is part of a National Public Radio report that at least mentions RFRA. Warning: If also includes yet another narrow, incomplete description of key facts in the SCOTUS Masterpiece Cakeshop case (where the baker offered a same-sex couple any wedding cake in his shop, but declined to create a special cake that would contain symbols and content that violated his Christians beliefs).

One upshot of all of this, then, is that the Equality Act would affect businesses like flower shops and bakeries that have been at the center of discrimination court cases in recent years — for example, a baker who doesn’t want to provide a cake for a same-sex wedding.

Importantly, the bill also explicitly says that it trumps the Religious Freedom Restoration Act (commonly known by its acronym RFRA). The law, passed in 1993, set a higher bar for the government to defend laws if people argued those laws infringed upon religious freedom.

Under the Equality Act, an entity couldn’t use RFRA to challenge the act’s provisions, nor could it use RFRA as a defense to a claim made under the act.

The key words there are, of course, “explicitly says.”

Now, who is worried about the RFRA angle of this story?

Lots of people. But let’s start with leaders of America’s two largest religious flocks — the Catholic Church and the Southern Baptist Convention.

It’s possible that leaders of these groups, or their offices focusing on human rights, would be willing to do interviews with journalists. Imagine that.

Meanwhile, here is a bite of Equality Act material from the U.S. Conference of Catholic Bishops:

The Equality Act:

— exempts itself from the bipartisan Religious Freedom Restoration Act, in an explicit and unprecedented departure from one of America’s founding principles, thereby infringing on religious freedom and making it more difficult for individuals to live out their faith

— forces religiously operated spaces and establishments, such as church halls, to either host functions that violate their beliefs or close their doors to their communities. …

— forces faith-based charities that serve all people to violate their religious beliefs, and threatens the welfare of thousands of beneficiaries of charitable services such as shelters and foster care agencies, by forcing a multitude of them to be shut down

— jeopardizes existing prohibitions on the use of federal taxpayer funds for abortion, likely pressuring or even mandating the performance of abortions by health care providers in violation of their consciences, and ultimately ending more human lives

— hinders quality health care, by forcing health care professionals, against their best medical judgment, to support treatments and procedures associated with “gender transition.”

Here is some material from the SBC’s Ethics & Religious Liberty Commission (yes, the agency currently under attack by many Trumpian conservatives):

Equality cannot be achieved while eliminating other basic, fundamental freedoms. Of particular note, the bill would essentially gut the 1993 Religious Freedom Restoration Act (RFRA), a bill which passed with broad bipartisan support and was signed by President Clinton.

By undermining RFRA, H.R. 5 would force faith-based child welfare organizations to abandon their deeply held religious beliefs or be shut down by the state. The state-forced closures of such agencies is especially detrimental at a time when multiple crises — including the COVID-19 pandemic and the ongoing opioid epidemic — have led to increases in the number of children in need of services.

That’s all for now. Reporters interested in committing acts of journalism may want to go online and see if there are major religious ministries, medical institutions or schools in the region covered by their newsrooms.

That would be a start. There are many, many other angles to this story. Feel free to post URLs — left or right — in the comments pages.

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