Last month, the House of Representatives voted to approve the Equality Act. If passed, the bill would amend the Civil Rights Act to add sex, sexual orientation, and gender identity to its list of protected classes. The bill has broad implications on the rules for employment, housing, education, nonprofit groups that receive federal funds, and other areas.
Many Christian leaders have opposed the bill but say they support expanding federal protections against discrimination. One example is Shirley Hoogstra, the president of the Council of Christian Colleges and Universities. She told The Washington Post this week “I have come to see that LGBTQ people should have the same ease of movement about their lives. They shouldn’t run into unexpected, dignity-dismissing episodes.”
But Hoogstra and others are concerned that the Equality Act offers few protections for religious organizations and institutions that hold to traditional views of marriage and oppose things like gender reassignment surgeries.
In fact, the Equality Act specifically says that the Religious Freedom Restoration Act of 1993, a federal law written to directly protect religious freedom, can’t be used to challenge the Equality Act’s rules on sexuality.
This week, as the bill went before the Senate Judiciary Committee, dozens of black Christian leaders published an open letter concerned that the bill would allow “LGBT rights to be used as a sword against faith institutions rather than a shield to protect the vulnerable.” Among the signers of that letter are the international religious freedom ambassador under the Obama administration, Suzan Johnson Cook and CT board member Claude Alexander.
Shirley Mullen is president of Houghton College and serves on the board of several Christian institutions, including the National Association of Evangelicals and the Council of Christian Colleges and Universities. For many years she was provost at Westmont College, and is a historian of philosophical thought, with doctorates in both history and philosophy.
Mullen joined global media manager Morgan Lee and editorial director Ted Olsen to discuss the specifics of the Equality Act and outline what comes next for religious institutions holding to a traditional sexual ethic and loving their neighbor in a pluralistic democracy.
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How does the Equality Act differ from existing legislation regarding sexual orientation and gender identity?
Shirley Mullen: First, it raises the protection of the LGBTQ community to the federal level. This affects federal funds and would be a national mandate; right now, they are negotiated at the state level.
The most significant part of the Equality Act is actually what's not in it, which is the protection for religious freedoms that has always been an understood part of the American Constitution. It removes the traditional religious freedom protection provisions that have always been part of the Constitutional discussion. This would be the first major piece of legislation that excludes explicitly protection for religious freedom.
It would remove the potential for dialogue to continue between the rights of the LGBTQ community and the traditional rights of religious freedom.
One of the great tragedies of this moment is that people, even Christians, do not understand religious liberty as anything but a protection for the notion of discrimination. What the religious exemption provisions have done over the years is create the possibility of America being true to its original dream of being a place where the public square and the civil community could be a place of protection for diversity and multiple conversations. We speak of it often as a pluralistic society. This isn't just a debate between conservative Christians and the LGBTQ community. This has to do with longstanding historical protections for the diversity of religious persuasions within the American context.
Does the Civil Rights Act of 1964, which talks about racial discrimination, allow for religious exemptions?
Shirley Mullen: There would be provision for religious exemptions within that framework. To explicitly remove protection for religious freedom is unprecedented. The current framework at the federal level allows for dialogue between these protected classes. In the current Religious Freedom Restoration Act, claims of religious freedom wouldn’t always trump claims of civil rights.
It says that that the American legislative framework recognizes these tensions, these competing claims within the Constitution and the current framework. Instead of recognizing tensions and the importance of dialogue in a pluralistic society, the Equality Act de-legitimizes a set of important questions that have been understood as legitimate within the American Constitutional framework and civil society since the very beginning of our Republic.
What does the Religious Freedom Restoration Act do? If the Equality Act passes, what does it mean for RFRA?
Shirley Mullen: What RFRA was trying to do is to help us know how to better balance competing claims within the Constitution. It seeks to provide protocols and a way of implementing the notion of religious freedom that does allow for dialogue. Anytime that we shut down that possibility of debate and sincerely held convictions of a large sector of our community when there are other ways to preserve the core rights of every member of our community, we need to pay attention.
Are there parts of the Equality Act that you would advocate for in maybe a separate piece of legislation?
Shirley Mullen: I want to be part of an American society where every citizen knows that their rights and freedoms will be protected. They don't have to be always looking behind them. I want the Equality Act or some legislation to honor those commitments.
I'm old enough to remember when the Equal Rights Amendment was debated several decades ago. Part of what's being discussed here is doing the LGBTQ community need extra protection, just like back in the days of the discussion of the ERA, do women need extra protection.
The Equal Rights Amendment never got through. Part of the grief of this moment is to have the discussion framed in ways that make it seem as if one part of the American polity would want to have those basic rights of freedom of conscience, freedom of action, freedom of movement, be stepped on to preserve a member of another community's rights. What we're involved in is a discussion that could be a win-win discussion, now being turned into a kind of win-lose situation.
There will be challenges in the courts as soon as the Equality Act passes. What are some of the main provisions that would immediately be a problem?
Shirley Mullen: Part of the reason why I believe we need to look at this in the legislative context rather than wait for the courts to resolve it is the nature of the judicial process is win-lose. It's also specific.
Compromise is often viewed as a negative, but it is also associated with that longstanding British heritage that saw compromise as a good thing that created the possibility of people with different views living together. We must have at least had tension in a legislative context and not assume that the courts are going to answer all this.
For example, groups that provide support, such as rescue missions, are concerned that they might not be able to engage in hiring that would allow them to hire in accord with a religious mission. The idea of embodying the Christian mission is so central to the work of Christian higher education, rescue missions, or any kind of humanitarian work.
To be unable to hire people who share the fundamental convictions about the nature of marriage or the traditional understanding of a biblical sexual ethic is to deeply affect the ability of these organizations to carry out their mission.
What does it mean for ministries and organizations that might require a particular statement of faith of their employees?
Shirley Mullen: There’s this very narrow notion that churches could hire people that embodied the religious conviction.
What is frightening is that many Christian organizations, including adoption agencies, humanitarian organizations, rescue missions, and Christian colleges, have activities that are not narrowly religious. Christian colleges are first of all educational institutions but are animated by a distinctively Christian mission in the same way that if you are a rescue mission, you are, first of all, a rescue mission, but carrying out that work animated by a particular ethic of a particular religious vision. The Equality Act would sever the organization from animating the religious vision.
It makes it hard for them to be religious in the way that they have traditionally understood that mandate. It removes from organizations the prerogative to hire for the objectives that they believe are central to their cause.
Part of the complexity is there would be certain sectors of the Christian community that would not see tensions in the Equality Act that the more conservative parts of the Christian community would see. There are certainly individuals in our society who would identify with the Christian and LGBTQ community and would say there's no tension here that we need to be guarding.
What we don't want to run into is where the claims of some parts of the Christian community, the Jewish community, or the Muslim community are discounted because they are not shared by all members of those religious traditions.
Religious communities carry out activities that contribute to the social good that everybody benefits from. We don't want to remove from them the prerogative to hire in ways that reflect the religious vision that supports the work they do for the larger good of society.
Two aspects of the Equality Act that would be difficult for Christian colleges to manage is first, access to federal funding of student financial aid. Right now, seven out of every 10 students who come to a Christian college, including students of color and students from poor families, receive some form of federal funding, including Pell grants. The Equality Act not only interferes with the work of Christian colleges, but it also interferes with the prerogative of individual students to choose the kind of educational context that they believe would best serve them. The Equality Act would severely damage the capacity of these institutions to operate.
The other damaging implication of the Equality Act would be accreditation. Right now, Christian colleges participate in the mainstream of American higher education, which has always been marked by diversity and rich engagement across many denominations that are part of that network. The diversity of American higher education offers a wide range of options to students. Accreditation has always operated in terms of judging institutions by their ability to live up to their stated mission.
It has not been to measure educational institutions by whether they measure up to a standardized federal dictate. Accreditation has always operated to measure the integrity of an institution. If the Equality Act passes, it will jeopardize Christian colleges’ capacity to maintain its stated mission in presenting itself to accreditation institutions.
It makes Christian colleges pariah organizations within American higher education. It jeopardizes the ability of graduates of Christian colleges to be viewed with the same kind of credibility as graduates of other institutions in being considered for internships in social work and all arenas. It would jeopardize their capacity to be treated on the same playing field as other graduates in professional and graduate schools.
This changes the entire landscape of the work of Christian colleges to serve the world of higher education and for our graduates to engage in the mainstream work of promoting the social good. This is often framed as Christian colleges protecting themselves. Frankly, this will radically change the landscape of the ability of Christian institutions to serve the larger public good of our society.
Do you think this legislation will have a different impact on Christian institutions as legislation regarding race? In other words, are laws regarding race and sexuality applied differently?
Shirley Mullen: In the historic conservative Christian community, there's a longstanding precedent for saying they're not the same thing.
The Scriptures themselves align with the larger culture on matters of racial equity and equality of women. There are still many denominations that would not support women in ministry, but there's a tradition that would say there is a difference between the way issues of race and issues of sexual ethics have been understood in the Christian tradition.
There is the issue of scope. It is true that certain institutions, for a wide range of reasons, not just around race, have chosen decades ago to never accept any kind of federal student aid because they wanted to have the freedom to never be dependent on federal student aid in the way that the majority of Christian colleges now find themselves dependent.
Certain institutions decided many years ago to take measures that would allow themselves to remain free from the regulatory activity of the federal government. But the scope of what we're dealing with now is radically different.
When you have large swaths of not just conservative Protestants, but conservative Roman Catholics and conservative Jewish tradition disagreeing with action that the government wants to take, we need to pay attention.
Certain parts of the Christian and Jewish community would say that we should not look at the issues of sexual orientation and gender identity in a different way than we look at issues of race. We should treat scriptural teaching on those matters as specific historical contexts. What’s happening here is the threat of federal legislation intervening and cutting off a discussion that seems to be the purview of those religious communities.
Many people in the LGBT community feel like the places where they are or worry about being discriminated against are often religious spaces. How do you engage in that argument?
Shirley Mullen: Part of the discussion that goes on within both groups around legislation and fairness for all members have been viewed with suspicion by members within their group. How is it that you can be talking with people who have threatened our safety?
The only way that we are ever going to make progress on this issue is for members of the LGBTQ community and members of the conservative religious community, not just in the Christian context, to sit down and get to know each other because trust is not built as long as we're only dealing with abstractions.
The LGBTQ community wrestled deeply and painfully with how they think about their personhood and their desire to be loyal to their religious convictions. There are some conservative members of religious communities who do not make an adequate distinction between the personhood of members of the LGBTQ community and the way that persons choose to behave.
Even that discussion of personhood and behavior is also part of the division that members of the LGBTQ community often do not want to make. Whether it's out of fear or another reason, we know that many people who identify with the LGBTQ community have felt the deepest pain in the context of their families and in the context of the Christian Church.
If we are to be exercising seriously the call of the Christian gospel to love our neighbor as ourselves, to respect and apply basic categories of a divine image, the teachings of Jesus would require us to treat all those who are neighbors with the kind of dignity and respect that would give their lives the attention that they have so often not received at the hands of the Christian community.
Part of the work that conservative Christians need to do both in the church and other organizations is to get to know people who identify with the LGBTQ community and build bridges of trust that enables us to move beyond obstruction and enable us to bring together the truth and grace of the Christian gospel.
What impact does limiting religious freedom have on churches, nonprofits, or other organizations?
Shirley Mullen: The Equality Act would put them in much greater jeopardy. Religious freedom is more connected with something that is in your personal life, it happens within the walls of a synagogue, a temple, or a church, but it's not something that allows you free exercise of that religion into other areas that are not explicitly religious.
The work of these organizations is first of all educational or humanitarian. We certainly shouldn't assume that the Equality Act would permit a large vision of that religious exemption.
Long before the Equality Act, an attorney said to our board of trustees that in the world of legislation and the courts in the days to come, your ability to be both a religious organization and an educational organization is going to be severed. It's going to be impossible for you to claim both that you are doing education in ways that deserve accreditation and deserve federal support and that do that in a way that remains true to your religious conviction. That's the concern at root that is troubling. It’s not just Christian organizations that will suffer. It is the rich diversity and range of institutions that make up the fabric of American pluralism, that contribute to the social good of our entire society.