Understanding the Danger of the Equality Act

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Soon, the U.S. Senate will begin debating a bill that would have far reaching consequences for Bob Jones University and other religious institutions. That bill — known as the Equality Act — forbids discrimination based on sexual orientation and gender identity (SOGI) and contains no exemptions for religious organizations to exercise their beliefs.

To better grasp the impact the Equality Act could have on BJU, I talked with Greg Baylor of Alliance Defending Freedom where he serves as the director of the Center for Religious Schools and Senior Counsel for Government Affairs.

Greg provides us with great information on the basics of the Equality Act, how it will affect the Religious Freedom Restoration Act and what we can do to prevent this dangerous piece of legislation from becoming law.

 

 


Transcript for “Understand the Danger of the Equality Act”

 

This transcript has been edited for ease of reading.

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Rumpf: Welcome to Highest Potential with Dr. Steve Pettit, a podcast that explores how Bob Jones University empowers individuals to reach their highest potential for God’s glory.

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Pettit: Welcome to a new episode of Highest Potential. I’m Steve Pettit, president of Bob Jones University. Usually on this program we like to highlight the people or events at Bob Jones University. But today it is going to be a different type of episode.

During my time as president of BJU, I’ve rarely taken the opportunity to communicate directly with you concerning a legislative issue. However, I believe that it is a necessity to discuss with you the Equality Act that has passed the U.S. House of Representatives and will soon be debated in the U.S. Senate.

Because of the danger of this bill and how it is going to affect Christians and Christian organizations, I’ve decided to invite Greg Baylor from Alliance of Defending Freedom on the show today to share with us the details of how this bill would harm religious liberty and make it difficult for BJU to continue to teach biblical principles to the next generation of Christians. Greg is the director of the Center for Religious Schools and Senior Counsel for Government Affairs at ADF and regularly comments on religious liberty in higher education in the media. He’s also testified about those issues multiple times before congressional committees. Greg has excellent insight, and you’ll learn a lot from our conversation.

So, let’s listen to our conversation now.

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Pettit: Well, I want to thank Mr. Greg Baylor for taking the time to be with me here today on Highest Potential. Greg serves as the director for the Center for Religious Schools and Senior Counsel for Government Affairs at Alliance Defending Freedom. We are so thankful that Greg is giving us his time, and Greg, thank you for being on the line today.

Baylor: It’s a privilege to be with you. Thanks for having me.

Pettit: And I’m glad we could work it out from your office up in Northern Virginia. And this issue of the Equality Act that we’re going to talk about is a really big deal. A lot of people really want to have clarity about it, and I’m so thankful that you can help us with that.

So, let me begin with you just starting with the basics, and tell us exactly what is the Equality Act?

Baylor: You know, the best way to think about the Equality Act is that it’s a piece of proposed legislation that adds sexual orientation and gender identity as protected characteristics in federal non-discrimination laws. Like as your listeners undoubtably know, we have a number of laws at the federal level that forbid discrimination in various contexts – things like businesses, things like employers, things like recipients of federal financial assistance, providers of housing. And in each one, there isn’t in there right now a specific protection, as it were, for sexual orientation and gender identity. This has long been a goal, a dream, for folks on the left and of the spectrum is to add sexual orientation and gender identity as protected classes.

The most interesting thing about it, in addition to all the negative consequences that I’m sure we’ll get into talking about, but there’s no respect for religious liberty in there. There’s no religious exemptions; they actually take away religious liberty. So again, the best way to think about the law is expanding existing nondiscrimination law.

Pettit: So, maybe help us understand, especially with a lot of the folks that are listening, why it is that sexual orientation and gender identity, what we call SOGI, these issues – why have they become so prevalent in our culture today?

Baylor: Well, you know, there’s a lot of deep reasons for that, but I think it’s building on the foundation of just the elevation of expressive individualism, absolute autonomy, absolute freedom to be whoever we want to be, as it were, without regard to God, without regard to natural law, without regard to the restraints that are built into Creation. I mean, can you imagine anything more of an act of will of saying this is who I am than denying your own bodily reality to say that you’re the opposite sex.

It also, I think, represents the growing power of those folks on the left end of the spectrum of the LGBTQ activists’ organizations. There’s virtually no dissent within the Democratic Party about the advance of the so-called gay rights and transgender array, and there’s virtually no dissent about the desire to crush religious liberty, the desire to crush religious exercise. So, I think, you know, that the answer is complicated, and it’s rooted in a lot of things, but I think it’s evidence of just rising power and a desire to punish the enemy, so to speak.

Pettit: What is — one of the things that might be a bit of confusion is, what is the Religious Freedom Restoration Act, and how does the Equality Act partially repeal that Act?

Baylor: Yes, so the Restoration of Religious Freedom Act is actually the strongest legal protection we have right now of our religious exercise when it comes to the federal government. Most people would say, Well, it’s got to be the free exercise clause or the First Amendment or the Free Speech clause; that’s got to be our strongest protection. Unfortunately, that’s not the case. The Supreme Court decided a case about 30 years ago that drained the free exercise clause of the First Amendment of most of its power to protect religious liberty. The good thing is that there was a response, a response not just by evangelicals and traditional Catholics and orthodox Jews but really of practically of everybody interested in the intersection of government power and religious exercise. A large coalition formed back in the early ‘90s to push back against what the Supreme Court had done and restore some vigor to the legal protection of religious exercise. And that effort included, you know, on one hand the Southern Baptist Convention; on the other hand, the ACLU. You had the National Association of Evangelicals and People for the American Way. It was quite a coalition, and all were in agreement at the time that we should respect and protect religious liberty, and that effort resulted in the statute you mentioned, the Religious Freedom Restoration Act. And the best way to think about what this statute does, and often it is referred to as RFRA, the best way to think about what RFRA does is that it gives folks a shot to go into court and make their case and to try to get relief from some federal government action that violates their religious liberty. They go to court, and they say, “Look, Judge, this is really getting in the way of what I’m trying to do, it’s making me to do something that violates my conscience, and if the judge is persuaded that there is enough of a burden on exercise, the judge will turn to the government and say, OK guys, justify what you’ve done, and sometimes the judge rules for the government and sometimes the judge rules for the claimant, but at least the religious person or organization gets a chance in court.

Now, what does this have to do with the Equality Act? Well, the drafters of the Equality Act know that a lot of traditional religious people and organizations in this country have religious views about marriage, about the distinction between the sexes and about sexual morality. And the Equality Act is designed to undermine the ability of those people and institutions to exercise those beliefs. And the drafters of the Equality Act don’t want those individuals and organizations to invoke the protections of the Religious Freedom and Restoration Act. So, the Act says you can’t invoke it to try to protect yourself. Really unprecedented.

Pettit: Wow. That’s really – that’s so huge. So, in your opinion, what are the biggest threats that the Equality Act will bring to Christian colleges like Bob Jones University? And we see ourself in a conglomerate of many others that are like us.

Baylor: Yeah, two words – defund and punish. Defund and punish is what the Equality Act would do to Christ-centered institutions of higher education that hold to biblical views of marriage, sexual morality and a distinction between the sexes.

How does it punish? First way is this: Federal law right now prohibits discrimination in places of public accommodation. This piece of the 1964 Civil Rights Act arose out of a particular historical context, namely, the difficulties that African Americans had travelling interstate prior to the enactment of this law. Specifically, they were frequently denied access to, you know, a table at a restaurant or a room at a hotel, and Congress stepped in and said, “That’s wrong and we’re going to stop that. So, reflecting that historical contest, we see that the ban on discrimination is only about race and religious and national origin and color – just a limited number of characteristics.

Second, the definition of “place of public accommodation.” In other words, the things that are covered by this nondiscrimination law – it’s a relatively narrow category – hotels, restaurants, stadiums, museums, things like that. What would the Equality Act do? First, it adds sexual orientation and gender identity, as we discussed before, to the list of protected characteristics, things on which you may not discriminate in places of public accommodation. And then, almost as equally significant, it dramatically expands the definition of what counts as a place of public accommodation. Now this is not a certainty — I think it’s more of a probability or a possibility — but it’s likely at least some courts are going to say that Bob Jones and other private educational institutions are places of public accommodation. And what that means is out the door goes your religious-based admissions criteria. Out the door go your student conduct standards that reflect your views about sexuality, marriage and the distinction between the sexes. And possibly out the door goes your teaching about those issues on the theory that this creates a hostile environment.

And the reason I distinguish between “punish” and “defund” is because this bill isn’t talking about – there’s no way to escape that. You can’t give up some government benefit in order to avoid the nondiscrimination rule. It applies here because you’re here in the United States.

The other piece is defunding – essentially the same rule, but it’s a condition on access to federal government benefits. Bob Jones, like most religious institutions of higher education and institutions of higher education generally, get money not through direct grants usually, but typically through students who are eligible for federal financial tuition assistance, and they direct that aid as a matter of their own choice to a school like Bob Jones or any other. And that money would be in jeopardy almost certainly under the Equality Act, so punish and defund.

Pettit: So, if a school, for example, is not accepting government funds, Pell grants, etc., would they still be affected by the Equality Act?

Baylor: Absolutely. Yeah, that’s exactly the point I was trying to make. I mean, even if a school wanted to transform itself in terms of acceptance of federal money into Grove City or Hillsdale or schools that don’t have students that get federal aid indirectly to their school, they still have a problem.

They also would have problems under other pieces of the Equality Act; namely, the employment section, which again is not of rules that apply to you just because you’re getting some kind of government benefit; it applies because you’re here in the United States, it would relate to your employment package. And also, in the housing process, there’s a pretty good argument that college dorms are housing, or dwellings rather, for purposes of the Fair Housing Act. And one of the things the Equality Act does is that it adds sexual orientation and gender identity to the list of protective characteristics there. What does that mean? All of a sudden you can’t have single-sex dormitories. Or if you have single-sex dormitories, you admit people to them based on their gender identity, not on their biological sex.

So, giving up federal funds does not remotely solve all of the problems that the Equality Act creates for schools.

Pettit: So, one of the questions that often comes up is how would it affect women’s sports?

Baylor: Oh boy. Well, we know already how it will affect women’s sports because of analogous rules, laws and policies that have been adopted at the state and local levels. Whenever you say a school that has a scholastic athletic program is subject to a gender-identity nondiscrimination rule, you end up with situations like the one in Connecticut. What happened in Connecticut is the Interscholastic Athletic association told schools that are in its members, which is public schools, the private schools in the state, that, “Hey, you can’t discriminate on the basis of gender identity. You have to allow males that identify as female to participate in female sports.” And we all know from science that there are just inherent advantages that males have, typically following puberty because of the existence of testosterone, that make competition in many sports, most sports, between men and women unfair. That’s why we have women’s sports in the first place.

So, everything that we predicted would happen, did. So, in Connecticut there were two boys who were mediocre male athletes decided that they were female. They were permitted to participate in female track events and then eventually pushed girls off the podium by winning almost 20 state championships and denying about 85 opportunities for girls to advance. Eighty represents the number of high school and former high school female athletes in a lawsuit. We’ve had some success so far, but that problem in Connecticut will be replicated nationwide if the Equality Act comes to pass.

Pettit: So, maybe this digs a little bit deeper – why is it that you think that the proponents of the Equality Act are so adamant on removing religious exemptions on SOGI issues?

Baylor: Yeah, a lot of folks have asked me about that, and the phrase I’ve used is that sometimes you hear in the software world, “This is a feature, not a bug.” This is intentional. This is deliberate. I think the reality is that there really isn’t that much unjust treatment of people who identify as LGBTQ, especially when it comes to you know, going to a restaurant and not getting served or going to a hotel and not getting a room. Even the cases that the other side points to – almost all of them are about Christian wedding professionals who are unable to create art that contradicts their religious belief. I mean, these people are willing to serve anyone, they just can’t create all messages.

So, it’s not about attacking injustices. Instead, it’s about two things: it’s about making a point, and the point is that there is no basis for judging negatively homosexual behavior, there’s no basis for suggesting that when one identifies as the opposite sex, this is a problem that requires intervention, helpful intervention, not chopping off healthy body parts. These views are unacceptable to the supporters of the Equality Act, and they want to punish those views and demonstrate to the world that those are wrong.

The second thing that the Equality Act is comes from a quote by Tim Gill, a wealthy entrepreneur who’s funded a lot of LGBTQ+ advocacy in this country, and he said after the marriage decision, Obergefell, “it’s time to punish the wicked.” Well, we’re “the wicked,” those of us who believe what they consider to be retrograde things about marriage and the distinction of the sexes are wicked and need to be punished.

So that’s why you can’t invoke religion, if that’s where you’re coming from, and they don’t.

Pettit: The Equality Act isn’t the first attempt to try to force this agenda on religious organizations. Bills such as the Fairness for All Act have been around. Are there any other bills that are seeking to accomplish the same goals that we should be aware of?

Baylor: Well, certainly there’s been proposals in the states to do what the Equality Act is doing. The effort to enact statewide SOGI laws has kind of stalled out for the most part although in the last legislative session, the Virginia, the Commonwealth of Virginia, my home state – they adopted a law quite similar to the Equality Act. Again, no religious exemptions.

But yeah, at the federal level we’re seeing things like the so-called Do No Harm Act, which essentially guts the Religious Restoration Freedom Act for all purposes, not just for purposes of claims brought under the Equality Act and the statutes it amends. There is effort by the Biden administration to implement SOGI ideology in as much of federal law as is possible. They’re looking at every ban on sex discrimination that exists in federal law and saying, not only that it reaches sexual orientation and gender identity but also that there is a kind of a maximal understanding of what gender identity discrimination constitutes. You know, if you call someone the wrong pronoun, that’s discrimination. If you divide and give access to private spaces by biology rather than subjective gender identity, that’s discrimination. If you fail to put sex reassignment and puberty blockers in your health plan, that’s discrimination.

So, it’s happening on a variety of fronts, but the Equality Act, no doubt about it, it is the biggest, the boldest, most comprehensive and most dangerous proposal.

Pettit: So, we’ll have lots of people that are interested in this, and of course, as a believer, you’re always asked the question, “What can we do?” What’s the best way that our listeners can take – what can they do about the Equality Act?

Baylor: Yeah, in addition to going before the throne of God and asking for His divine intervention in this situation, I think we need to communicate with our elected representatives. We need to get the word out. We need to educate people about the downside of the Equality Act. I mean, this is America. We hear “equality” and that’s great. We hear “discrimination”; oh, that’s bad. And the people are thinking about this proposal at that superficial level; they’re not going to understand just what this does. And we’ve had a great opportunity today to discuss some of the negative impacts.

The next step one is to get educated. Step two is to communicate with our elected representatives now at the federal level. The House of Representatives has already passed the Equality Act in this Congress, President Biden has indicated that he will sign it, so the real action is in the Senate. And it’s close there. We have a 50/50 split between the two parties, 49 Democrats out of 50 have sponsored the Equality Act. Joe Manchin of West Virginia has not. No Republicans, not even Susan Collins this time, have sponsored the Equality Act. But there are a handful of folks, including those two and some others, who are uncertain where they come down on all of this. So, we need to let them know, “Yes, we respect the dignity of all people no matter who they are. And they deserve respect because they are image bearers of God, but the Equality Act is not a good means for advancing and flourishing in freedom. So, I would encourage our senators not to support the Equality Act or Equality Act Light which is the Fairness for All proposal that you mentioned briefly a few minutes ago.

Pettit: So, in order for this to pass in the Senate, what would the vote have to be?

Baylor: Well, as it stands right now, the vote would have to be 60 because of the legislative filibuster that I’m sure your listeners have been hearing a lot about lately. There’s a concerted effort to undermine its legitimacy and ultimately, I think, to take it away. We don’t know how that fight is going to turn out. There are a handful of Democrats in addition to I think every Republican who have expressed opposition to eliminating or substantially changing the filibuster, so right now the answer’s 60. And I don’t think there are 60 votes for it right now, certainly in its current form. We should not get complacent, though, because of that observation. If the filibuster is eliminated, then the threshold would be 50 and of course, Vice President Kamala Harris would break the tie. Right now, there are only 49 sure votes for the Equality Act, so they would need to get one more.

Again, these are the realities. No reason to get complacent. We do face a significant challenge in the Senate, and pressure and voices being voiced to make a difference.

Pettit: Well, Greg, thank you so much. This has been a tremendous help for our people to hear to gain a greater clarity, and because they have a greater clarity, then it should send a greater urgency to our listeners to get out and encourage the right decisions to be made. And then as you’ve mentioned, you said “Communication, education and intercession.” I really pray for the good hand of God who we know throughout all of history has intervened. He will accomplish His will in His way, and we are confident of His sovereignty and control, and we also are recognizing our responsibility as individuals before the Lord.

So, thank you so much for your time today, Greg. We appreciate it.

Baylor: It’s been a pleasure. Thank you.

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Rumpf: Thanks for listening to this week’s episode of Highest Potential with Steve Pettit. Don’t forget to find us and subscribe on Apple podcast, Spotify, or wherever you get your podcasts. Thanks again for listening. We’ll talk to you again next week.

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Steve Pettit traveled for many years with the Steve Pettit Evangelistic Team before becoming president of Bob Jones University. His ultimate goal for BJU is to prepare students to serve and love others, no matter their vocation.