The Inequality Act: Weaponizing Same-Sex Marriage
by Matthew Kacsmaryk
On June 26, five justices of the Supreme Court found an unwritten “fundamental right” to same-sex marriage hiding in the due process clause of the Fourteenth Amendment—a secret knowledge so cleverly concealed in the nineteenth-century amendment that it took almost 150 years to find. Facebook and the White House were awash in rainbow flags proclaiming the arrival of “marriage equality.”
Just three weeks after Obergefell, congressional Democrats filed House (H.R. 3185) and Senate (S. 1858) versions of the “Equality Act,” seeking to add “sexual orientation” and “gender identity” to the protected classes listed in the federal code. Americans are on an “equality” roll. What could go wrong?
As it turns out, quite a bit. If enacted, the deceptively titled Equality Act would punish dissenters who disagree with same-sex marriage by using the enforcement tools of the amended Civil Rights Act of 1964, but with even greater force and scope. The Equality Act seeks to weaponize Obergefell, moving with lightning speed from a contentious five-to-four victory on same-sex marriage to a nationwide rule that “sexual orientation” and “gender identity” are privileged classes that give no quarter to Americans who continue to believe and seek to exercise their millennia-old religious belief that marriage and sexual relations are reserved to the union of one man and one woman.
The Contents of the Law
So, in concrete terms, what would the proposed law do? Here are just a few of the potential areas of impact, given how the Equality Act would amend various provisions of the Civil Rights Act:
- Employment: would amend Title VII to create new protected classes for “sexual orientation” and “gender identity,” with no countervailing exemptions for faith-based organizations that maintain internal standards of sexual conduct rooted in longstanding religious tenets.
- Federal Programs: would amend Title VI, historically limited to race, color, and national origin, to create new protected classes for “sex, sexual orientation, gender identity,” with no countervailing protections for faith-based providers who willingly serve every program-eligible person but maintain internal standards of sexual conduct rooted in longstanding religious tenets.
- Public Accommodation: would drastically expand the Title II definition of “public accommodation” to cover “gatherings” and facilities historically owned and operated by churches or religious organizations—“shelters,” “food banks,” and “care centers”—extending far beyond the categories at issue during the Civil Rights Movement: common carriers (bus, taxi, train, and air lines), public utilities, hotels, restaurants, and entertainment venues.
- Public Education: would amend Title IV definitions of “desegregation” to include new protected classes for “sexual orientation” and “gender identity,” placing in the litigation crosshairs all sex-restricted facilities like dormitories, restrooms, or locker rooms.
- Religious Freedom Restoration Act: would omit exemptions for religious organizations contained in prior drafts of the Employment Non-Discrimination Act (ENDA), and expressly state that the Religious Freedom Restoration Act (RFRA) may not be used as a defense or a basis for challenging the Equality Act.
- Sex: would enter a congressional finding that “federal agencies and courts have correctly interpreted prohibitions on sex discrimination to include discrimination based on sexual orientation, gender identity, and sex stereotypes,” thereby adopting the EEOC’s most aggressively extra-textual recent rulings.
- Bona Fide Occupational Qualifications: would amend Title VII exemptions for employers who have sex-based “bona fide occupational qualifications” (BFOQ) for specialized jobs—for example, male security guards in a maximum security prison or female undercover officers in a sex-trafficking sting operation—to require recognition of persons “in accordance with their gender identity.”
Unlike ENDA, the Equality Act does not even feign an equal balancing of sexual liberty and religious liberty. Like some voracious legal Pac-Man, theObergefell-fueled Equality Act devours any preexisting constitutional rights that might impede absolute victory in the march for “marriage equality”: speech, association, assembly, and the free exercise of religion. The Equality Act boldly declares that some constitutional rights are “more equal than others.”
That ‘70s Show
We’ve been here before.
On January 22, 1973, seven justices of the Supreme Court found an unwritten “fundamental right” to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy “penumbras” of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye. In the minutes and hours that followed, the New York Times predicted that Roe represented “an historic resolution of a fiercely controversial issue.”
But Roe did not resolve the fierce controversy of abortion. Instead, sexual revolutionaries suffered loss after loss when they rammed Roe into state and municipal policies restricting public funds or forced participation in the “fundamental right” of abortion. See, for example, Beal v. Doe (1977), Maher v.Roe (1977), and Poelker v. Doe (1977). This losing streak continued into the 1980s, when the Supreme Court affirmed the federal Hyde Amendment and state laws prohibiting the use of public facilities and public employees for elective abortions. See Harris v. McRae (1980) and Webster v. Reproductive Health Services (1989).
The Court’s underlying rationale was simple. It was also consistent with the Constitution as a “charter of negative liberties”: the right to have an abortion does not include the right to force taxpayers or conscientious objectors to participate in the process.
Moving into the twenty-first century, legislatures counterbalanced the “fundamental right” to abortion with more and more protections for conscientious objectors.
In short, the unwritten right to abortion gradually approached equilibrium with the freedom to exercise religion—which, as Chief Justice Roberts pointed out, is “actually spelled out in the Constitution.” Today, pro-abortion and pro-life adversaries continue to litigate the points where the unwritten constitutional right to abortion collides with written constitutional rights to speech, association, assembly, and religion.
......................
If enacted, the deceptively titled Equality Act would punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.
On June 26, five justices of the Supreme Court found an unwritten “fundamental right” to same-sex marriage hiding in the due process clause of the Fourteenth Amendment—a secret knowledge so cleverly concealed in the nineteenth-century amendment that it took almost 150 years to find. Facebook and the White House were awash in rainbow flags proclaiming the arrival of “marriage equality.”
Just three weeks after Obergefell, congressional Democrats filed House (H.R. 3185) and Senate (S. 1858) versions of the “Equality Act,” seeking to add “sexual orientation” and “gender identity” to the protected classes listed in the federal code. Americans are on an “equality” roll. What could go wrong?
As it turns out, quite a bit. If enacted, the deceptively titled Equality Act would punish dissenters who disagree with same-sex marriage by using the enforcement tools of the amended Civil Rights Act of 1964, but with even greater force and scope. The Equality Act seeks to weaponize Obergefell, moving with lightning speed from a contentious five-to-four victory on same-sex marriage to a nationwide rule that “sexual orientation” and “gender identity” are privileged classes that give no quarter to Americans who continue to believe and seek to exercise their millennia-old religious belief that marriage and sexual relations are reserved to the union of one man and one woman.
The Contents of the Law
So, in concrete terms, what would the proposed law do? Here are just a few of the potential areas of impact, given how the Equality Act would amend various provisions of the Civil Rights Act:
- Employment: would amend Title VII to create new protected classes for “sexual orientation” and “gender identity,” with no countervailing exemptions for faith-based organizations that maintain internal standards of sexual conduct rooted in longstanding religious tenets.
- Federal Programs: would amend Title VI, historically limited to race, color, and national origin, to create new protected classes for “sex, sexual orientation, gender identity,” with no countervailing protections for faith-based providers who willingly serve every program-eligible person but maintain internal standards of sexual conduct rooted in longstanding religious tenets.
- Public Accommodation: would drastically expand the Title II definition of “public accommodation” to cover “gatherings” and facilities historically owned and operated by churches or religious organizations—“shelters,” “food banks,” and “care centers”—extending far beyond the categories at issue during the Civil Rights Movement: common carriers (bus, taxi, train, and air lines), public utilities, hotels, restaurants, and entertainment venues.
- Public Education: would amend Title IV definitions of “desegregation” to include new protected classes for “sexual orientation” and “gender identity,” placing in the litigation crosshairs all sex-restricted facilities like dormitories, restrooms, or locker rooms.
- Religious Freedom Restoration Act: would omit exemptions for religious organizations contained in prior drafts of the Employment Non-Discrimination Act (ENDA), and expressly state that the Religious Freedom Restoration Act (RFRA) may not be used as a defense or a basis for challenging the Equality Act.
- Sex: would enter a congressional finding that “federal agencies and courts have correctly interpreted prohibitions on sex discrimination to include discrimination based on sexual orientation, gender identity, and sex stereotypes,” thereby adopting the EEOC’s most aggressively extra-textual recent rulings.
- Bona Fide Occupational Qualifications: would amend Title VII exemptions for employers who have sex-based “bona fide occupational qualifications” (BFOQ) for specialized jobs—for example, male security guards in a maximum security prison or female undercover officers in a sex-trafficking sting operation—to require recognition of persons “in accordance with their gender identity.”
Unlike ENDA, the Equality Act does not even feign an equal balancing of sexual liberty and religious liberty. Like some voracious legal Pac-Man, theObergefell-fueled Equality Act devours any preexisting constitutional rights that might impede absolute victory in the march for “marriage equality”: speech, association, assembly, and the free exercise of religion. The Equality Act boldly declares that some constitutional rights are “more equal than others.”
That ‘70s Show
We’ve been here before.
On January 22, 1973, seven justices of the Supreme Court found an unwritten “fundamental right” to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy “penumbras” of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye. In the minutes and hours that followed, the New York Times predicted that Roe represented “an historic resolution of a fiercely controversial issue.”
But Roe did not resolve the fierce controversy of abortion. Instead, sexual revolutionaries suffered loss after loss when they rammed Roe into state and municipal policies restricting public funds or forced participation in the “fundamental right” of abortion. See, for example, Beal v. Doe (1977), Maher v.Roe (1977), and Poelker v. Doe (1977). This losing streak continued into the 1980s, when the Supreme Court affirmed the federal Hyde Amendment and state laws prohibiting the use of public facilities and public employees for elective abortions. See Harris v. McRae (1980) and Webster v. Reproductive Health Services (1989).
The Court’s underlying rationale was simple. It was also consistent with the Constitution as a “charter of negative liberties”: the right to have an abortion does not include the right to force taxpayers or conscientious objectors to participate in the process.
Moving into the twenty-first century, legislatures counterbalanced the “fundamental right” to abortion with more and more protections for conscientious objectors.
These included
(1) the Church Amendments prohibiting forced participation in abortion and sterilization procedures, (2) Public Health Service Act prohibitions on abortion-related discrimination in program funding, (3) Weldon Amendment protections for health providers who refuse to cover or refer for abortions, and (4) licensure and lawsuit protections for pharmacists who refuse to dispense contraceptive or abortifacient drugs.
In short, the unwritten right to abortion gradually approached equilibrium with the freedom to exercise religion—which, as Chief Justice Roberts pointed out, is “actually spelled out in the Constitution.” Today, pro-abortion and pro-life adversaries continue to litigate the points where the unwritten constitutional right to abortion collides with written constitutional rights to speech, association, assembly, and religion.
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