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Is There “Equality” in the Equality Act?

When we hire people, the only consideration should be how well they can do the job. Race, gender, sexual orientation, or religion shouldn’t be a concern. Title VII of the Civil Rights Act protects people against discrimination on the basis of “race, color, religion, sex and national origin.” Later acts protected people over 40 from discrimination (ADEA), Pregnancy (Pregnancy Discrimination Act), and people with disabilities (ADA).

When Congress passed these laws and the president signed them, sexual orientation wasn’t on the forefront of the public mind. That, obviously, has changed and today, it’s front and center in our world. The courts have given a mishmash of decisions that vary on the issue of gender identity and sexual orientation in employment.

Some courts have come back and said that even though sexual orientation and gender identity was not listed in Title VII, clearly it falls under “sex” discrimination. Some courts have come back and said, nope; it’s not covered. The Supreme Court has agreed to hear a group of conflicting cases.

But making non-discrimination policy or not, ultimately falls to Congress. This shouldn’t be left to the Supreme Court, whose job is to interpret the law, not create it. I agree with Second Circuit Court Judge Gerard E. Lynch’s dissent in one of these cases. He wrote:

Speaking solely as a citizen I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.

I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.

The Equality Act is the current proposal to fix this. The Act mandates that a person should no more be fired for being gay than you should be fired for being female. This makes tremendous sense. Everyone deserves to be judged on their knowledge, skills, and abilities. (And while the Equality Act would impact far more than just employment, I’m only going to look at the employment aspect of it.)

But, the Equality Act has some serious problems that will probably result in a quiet death in the Senate, only to be resurrected if Democrats gain control of the Senate and the Presidency. Why?

It’s not that most people aren’t in favor of equal rights; they are. Support for LGBTQ rights has steadily increased over time, and there doesn’t seem to be signs of that support waning.  That doesn’t mean that discrimination isn’t real and problematic. 10 percent of LGBTQ employees have left a job because they felt the environment wasn’t supportive and 80 percent of Transgender employees reported either harassment or taking steps to prevent that harassment.

But, the Equality Act removes protections for people who have deeply held religious beliefs that conflict with homosexual behavior. Remember, Title VII also held religion as a protected class, and this will come into conflict.

The Equality Act would force you to “bake that cake.” Or press you into performing a medical procedure that you think is immoral or inappropriate for the patient. And that’s a problem.

The Masterpiece Cakeshop case is particularly apt. Under the Equality Act, there’s no question but that the owner (important) would have to make a cake for a gay wedding, sex-change celebration, or anything related to someone’s sexual orientation or gender identity.

However, if Masterpiece Cakeshop had an employee whose religious beliefs prevented him from designing and creating such a cake, the business would have to make a reasonable accommodation. If it were possible for someone else to design the cake, the owner (or manager) would have to let your objecting employee not take over that assignment. If there were no other employees capable of creating such a cake, then the employee would have to make the cake or lose his job. The exception for the employee would be the same as today. 

But, even if there are 47 bakeries in the town that would be happy to bake such a cake, the Equality Act would force any owner to do whatever a client demanded, as long as it was related to sexual orientation or gender identity. 

We should have more discretion when we take on the financial risks of opening our own businesses, not less. When a cake designer says that his right to free speech are violated when he is forced to create a cake that represents something he cannot morally support, we should listen.

It’s easy to say, “but he should have baked the cake! It’s just a cake!”

It is just a cake, but one created by a person with his or her own conscience. And as someone whose cakes look like Pinterest fails more often than not, it’s hard to wrap my head around why some do object to making the cake. But, I’m also a small business owner. If someone comes to me and says, “I’d like you to write an article taking position X,” I should be free to say no.  No one questions that now, but under the Equality Act, could that person come back and sue me for discrimination? Because I offer a service (writing articles) would I be compelled, under US law, to write an article that advocates activities that violate my own moral code?

It’s a very real threat and undermines the freedom of religion. There needs to be a balance. While we can recognize the need for fairness and equality within the workplace, that also needs to include not shoving religion in a corner. A pluralistic society means that we need to respect others beliefs, even if they do not align with our own.

Should small business be compelled to sacrifice their own consciences, especially when those rights would be protected if they were employed by someone else? Should religions be free to label whatever behavior they wish as sins and hire and fire accordingly?

Secular businesses, of course, should be required to practice non-discrimination when they hire, fire, and promote, but don’t forget to protect the rights of everyone—including the religious.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 17, 2019 at 11:30:53 am

If someone comes to me and says, “I’d like you to write an article taking position X,” I should be free to say no. No one questions that now, but under the Equality Act, could that person come back and sue me for discrimination? Because I offer a service (writing articles) would I be compelled, under US law, to write an article that advocates activities that violate my own moral code?

It’s a very real threat and undermines the freedom of religion.

It isn’t. so it doesn’t. Free speech entails the right not to speak. No one disputes that writing entails speech.

I can easily understand the Free Exercise issues in Masterpiece Cakeshop, but the Free Speech arguments struck me as absurd. No one regards a wedding cake as manifesting any kind of speech on the part of the baker. In all the times you have attended a wedding, how often have you known who baked the cake (or arranged the flowers, or what have you)? If the baker is anonymous, then there can be no attribution of speech. Recall Walker v. Texas Division, Sons of Confederate Veterans, Inc., wherein SCOTUS held that the content of a license constitutes GOVERNMENT’s speech, not yours. If courts don’t recognize a license plate—a written document that I am compelled to display on my car indefinitely whenever I drive in public—as my speech, it would be absurd for the courts to regard the momentary presentation of a cake for an evening as a manifestation of the anonymous baker’s views.

In short, Masterpiece Cakeshop addressed a conflict between the baker and his conscience/God, not between the (generally anonymous) baker and the public. That is, this was a matter of Free Exercise, not Free Speech.

We should have more discretion when we take on the financial risks of opening our own businesses, not less. When a cake designer says that his right to free speech are violated when he is forced to create a cake that represents something he cannot morally support, we should listen.

It’s easy to say, “but he should have baked the cake! It’s just a cake!”

It is just a cake, but one created by a person with his or her own conscience.

Do you extend the same considerations to merchants who discriminate against blacks or Jews? I agree with making some accommodation for conscience. I’m less sanguine about government privileging some people’s consciences over others; when government engages in that practice, that’s Establishment of Religion.

[E]ven if there are 47 bakeries in the town that would be happy to bake such a cake, the Equality Act would force any owner to do whatever a client demanded, as long as it was related to sexual orientation or gender identity.

1. This statement is obviously false. The law would not require any bakery owner to engage in prostitution, for example.

2. This is also false in less obvious ways. Subway franchisees bake bread for Subway sandwiches. I see nothing in the Equality Act that would lead me to conclude that would be able to compel Subway franchisees to produce wedding cakes for same-sex couples.

More generally, the Equality Act would leave open the question of identifying a merchant’s line of work. If a merchant was not generally in the business of writing words on her products, it is unclear that the Equality Act would compel the merchant to begin doing so.

3. That said, I agree that the existence of alternative firms offering comparable goods/services/employment/housing in the same vicinity should be a relevant consideration in the application of civil rights laws. To this end, I again encourage people to consider my Market Power Affirmative Defense.

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nobody.really
on July 17, 2019 at 16:08:12 pm

The 13th Amendment prohibits "involuntary servitude" except as punishment for a crime for which the person has been "duly convicted." It seems to me, rather than being a question of religion, forcing a baker to bake a cake is a question of involuntary servitude. Arguably, even under the Equality Act, the baker will be compensated for his service, but he cannot set his own price for his service. Consider: Baker is willing to bake a cake for an occasion he does not support so long as he can charge double his "norma"l rate. He would be sued as quickly as he would have been for refusing full stop. Me must bake the cake, and he must not charge what he thinks would be fair compensation. Sounds a lot like "involuntary servitude" to me. Likewise, American slaves had neither a say in the service they performed nor the compensation for it. "Room and board" supplied by the slave's owner might have been suitable compensation if the parties were free to negotiate the work and the wages. But they weren't. Under the Equality Act (as under current Civil Rights laws), the freedom to contract with respect to how/when/where/for whom a person's skills and training are employed in the service of others is severely limited--to the degree that maybe the only way to get out of serving involuntarily is to quit serving altogether.

PS - I am not saying I am a great writer, but I was surprised when reading the bio of the author of this piece to find that she is not a high school student. I have grown to expect more from Law & Liberty articles and essays.

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Jack West
on July 17, 2019 at 16:43:27 pm

The 13th Amendment prohibits “involuntary servitude” except as punishment for a crime for which the person has been “duly convicted.” It seems to me, rather than being a question of religion, forcing a baker to bake a cake is a question of involuntary servitude.... Under the Equality Act (as under current Civil Rights laws), the freedom to contract with respect to how/when/where/for whom a person’s skills and training are employed in the service of others is severely limited–to the degree that maybe the only way to get out of serving involuntarily is to quit serving altogether.

For what it's worth, in Heart of Atlanta Hotel, SCOTUS ruled that civil rights laws do not violate the 13th Amendment.

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nobody.really
on July 17, 2019 at 16:44:59 pm

SCOTUS rules a lot of things.

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Jack West
on July 17, 2019 at 17:56:47 pm

“In every contract there is an implied covenant that neither party shall do anything, which will have the effect of destroying or injuring the right of the other party, to receive the fruits of the contract. In other words, every contract has an implied covenant of good faith and fair dealing.”

“Good Faith”, and fair dealing”, is understood to be an element of The Sacrament of Holy Matrimony as well as the marriage contract, which would preclude any actor from engaging in demeaning sexual acts that, regardless of one’s sexual desires/inclinations, are not respectful of the inherent Dignity of the human person as a beloved son or daughter, and thus are not and can never be, acts of Love.

“Good Faith, and fair dealing would also preclude anyone from being forced into serving in a capacity that would coerce a person to condone, affirm, or celebrate, demeaning sexual acts, and thus intentionally violate a tenet of their Faith and/or morals.

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Nancy
on July 17, 2019 at 18:04:07 pm

That should read, “Good Faith, and fair dealing”, would also preclude anyone from being forced into serving in a capacity that would coerce a person to condone, affirm, or celebrate, demeaning sexual acts, and thus intentionally force someone to violate a tenet of their Faith and/or morals.

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Nancy
on July 17, 2019 at 19:15:39 pm

Almost as if that were the court's job....

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nobody.really
on July 18, 2019 at 01:02:05 am

[…] The Devil Has His Own Problems – Donald R. McClarey, J.D., at The American Catholic Is There “Equality” in the Equality Act? – Suzanne Lucas at Law & Liberty Why the West is in Crisis & What Can Be Done – […]

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THVRSDAY EDITION – Big Pulpit
on July 18, 2019 at 06:04:59 am

You're wrong, N.R; you're allowing your love of spreading perversion to blind you to the rights of others.

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Micha Elyi
on July 18, 2019 at 06:20:52 am

...to be horribly wrong about basic things. Where's the Penumbras and Emanations Clause in the US Constitution or any of its amendments? Nowhere, that's where. It's an innovation of men.

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Micha Elyi
on July 18, 2019 at 10:56:20 am

The question is, does our Constitution provide for securing and protecting the equality of sexual acts and sexual relationships? It does not.

Although it is true that Justice Kennedy, in his majority opinion for Lawrence v Texas stated, “Texas anti-sodomy statute touched "upon the most private human conduct, sexual behavior, and in the most private of places, the home," and attempted to "control a personal relationship that ... is within the liberty of persons to choose without being punished”, it is also true that our Constitution provides for securing and protecting our inherent Right to Religious Freedom, which includes those of us who desire to know, Love, and serve, The Ordered Communion Of Perfect Love, The Most Holy And Undivided Blessed Trinity.

“Reflecting on the new permissive attitude of some bishops toward homosexuality, Fr. Murray condemned homosexual acts in blunt terms.
“A relationship based on sodomy is intrinsically evil and “, (and I would add, abusive) Murray said. “You don’t sodomize someone and do a good act. That’s an immoral act”, (and I would add, an act that is devoid of Love, including if the actors are a man and woman united in marriage as husband and wife)

Giving personhood to sexual desire/inclination/orientation, which necessarily sexually objectifies the human person,and denies our inherent Dignity as beloved sons and daughters, in order to justify the engaging in of demeaning sexual acts of any nature, universally denies the inherent Right of all persons to be treated with Dignity and respect in private as well as in public, and thus cannot serve The Common Good.

The desire to engage in a demeaning act of any nature, does not change the nature of the act,

Justice Kennedy’s erroneous notion in Obergefell, that those of us who refuse to condone, affirm, or celebrate, demeaning sexual acts of any nature, out of our desire that all our beloved be treated with Dignity and respect in private as well as in public, are acting due to animus, and not due to authentic Love, is a lie from the start.

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Nancy
on July 18, 2019 at 14:01:40 pm

Nobody, it is not discrimination. Is it discriminatory that a Jewish deli serves sandwiches, but not ham ones? Should a black baker be required to bake a cake with a confederate flag on it? I would say not. Here's an idea, Leave us the hell alone. Be TOLERANT, a word that has disappeared from the Left's vocabulary...oddly since Obergefell. No surprise there and we never hear "don't worry it won't affect you" anymore. How about we stop discriminating against Christians. And please, don't bother with the usual talking points, I've heard them all and refuted them all. Just stop. Leave the Christians alone.

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J
on July 18, 2019 at 18:31:04 pm

If your religion forbids you from treating gay people as equal members of society, that's an issue with your religion. I think it is a very slippery slope to start privileging peoples private religious beliefs over the law. Allowing someone to discriminate against someone else because of their religious beliefs is wrong, which means it is wrong to not serve a catholic or muslim, and it is equally wrong to not serve a gay person or a woman because your religion forbids it. The religious freedom argument is such a bad route to go given the increasing diversity of this society. We have to get along. Many of us have beliefs that are in conflict. Of my Christian friends, none of us have beliefs that totally align, and we all think that the others have some fundamental piece or pieces of doctrine wrong. If we were to institutionalize and operationalize our religious differences it would lead down a road many of our ancestors came here to avoid. The only tenable way forward is to put civil, secular law above religious law, which is why separation of church and state was such an important thing to the founders of this country.

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Mr. t
on July 19, 2019 at 00:52:49 am

I’m less sanguine about government privileging some people’s consciences over others; when government engages in that practice, that’s Establishment of Religion."""

How is that?

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Oft
on July 19, 2019 at 05:06:30 am

Try reading tbe constitution and first ten amendments. The constitution does not force me to violate faith and morality. The country is founded on Christianity even though the founding fathers didn't mention Christ in the constitution:

"The Congress...desirous...to have people of all ranks and degrees duly impressed with a solemn sense of God's superintending providence, and of their duty devoutly to rely.... on His aid and direction... do earnestly recommend...a day of humiliation, fasting, and prayer; that we may with united hearts confess and bewail our manifold sins and transgressions and, by a sincere repentance and amendment of life,...and through the Merits and mediation of Jesus Christ, obtain His pardon and forgiveness." (bold mine)
--Journals of Congress (1905), Vol. IV, pp. 208-209, May 17, 1776.

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Oft
on July 19, 2019 at 22:30:17 pm

it’s a wedding cake, not a baked sex toy. Then Baker was not asked to bake an unfamiliar or obscene cake. Just a wedding cake, similar to the hundreds of wedding cakes he had made for other couples. I’m sure he doesn’t bulk at making cakes for divorcees in their third or forth wedding, or refuse to bake for couples who had premarital sex. The cake was not different from his regular wares, what was different was that he held the purchasers as being sinners, but somehow their particular sin meant no cake. the Ten Commandments were not given in ranked order. If your religion says no cake for gay weddings, then be consistent and no cake for fornicators, and no cake for divorcees remarrying, and no cake for bride/groomzillas who are rude to their parents.

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Celerytwist
on July 19, 2019 at 23:41:04 pm

So you’d be okay with the gay cake, if the celebrants did everything but sodomy. Good to know.

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Cerebus
on July 20, 2019 at 09:02:32 am

Various policy arrangements have been issued by the government to support the implementation of the principle of equality and nondiscrimination. Certain companies also have specific policies in their companies to implement this principle. But the challenge is on the field is still there. Various discriminatory practices in the workplace are still common. Women, minorities and other vulnerable groups still have a high chance of experiencing this discriminatory treatment. Following this, I have a reference book and reading about how some of our countries fight for equality.

http://www.lib.unair.ac.id/index.php?option=com_content&view=article&id=1000:ketika-loyalitas-kerja-kita-dipertanyakan&catid=70&Itemid=314&lang=id

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Inggrid Mega
on July 20, 2019 at 09:07:41 am

Various policy arrangements have been issued by the government to support the implementation
the principle of equality and non-discrimination. Certain companies also have specific policies in their companies to implement this principle. But the challenge is on the field is still there. Various discriminatory practices in the workplace are still common. Women, minorities and other vulnerable groups still have a high chance of experiencing this discriminatory treatment. Following this, I have a reference book and reading about how some of our countries fight for equality.

http://www.lib.unair.ac.id/index.php?option=com_content&view=article&id=1000:ketika-loyalitas-kerja-kita-dipertanyakan&catid=70&Itemid=314&lang=id

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Image of Inggrid Mega
Inggrid Mega

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