“The Equality Act” Prohibits Defenses Under RFRA

July 23rd, 2015

Today, several members of Congress introduced “The Equality Act,” which prohibits several forms of LGBT discrimination in employment, housing, and other areas. Section 1107 of the Act states very clearly that RFRA will not provide any defense to a claim under the act.

‘‘The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim con- cerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or en- forcement of a covered title.’’

Sponsors of the law commented to Buzzfeed:

Addressing religious liberty, the Equality Act would bar individuals from citing the Religious Freedom Restoration Act as a defense in cases allege discrimination against any protected class. Noting that he was not lawyer, Merkley could not predict how courts would rule but he believed the federal law would also prevent individuals or companies from using state religious freedom laws as a defense in discrimination cases.

“I think the vision is that if you are in the baking business and you are in a commercial public offering setting, you cannot say, ‘I am only going serve Caucasians and not people of other races,’” he said. Likewise, Merkley continued, “You can’t say, ‘I am not going to serve people who I perceive to be part of the LGBT community.’ You are not compelled to be in the baking business. And you are certainly not compelled to be in the wedding cake business, and if you are in that business, your door is equally open.”

“Open for business means open for business for all,” Sen. Tammy Baldwin, the only out LGBT senator and another leader on the bill, said at the briefing.

Cicilline also addressed recent criticism, which has been expressed by some conservatives, that an LGBT bill could be a gateway to limits on religious freedom. “There is not nor could there ever be a law would require a religious institution, a church or synagogue or mosque, to violate their religious freedom to engage in marriage,” he said in the briefing.

“It cannot happen. It will not happen,” he continued. “There is nothing in this bill that attempts to make that happen.”

By eliminating RFRA as a defense, the statute would leave only the Free Exercise clause as a backstop for religious liberty claims.