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Religious Freedom Toolkit

Part III | Expanded Analysis

Category A | Frameworks

Topic 3 | Fairness for all

“Fairness for all” is a principled approach for seeking the mutual vindication of multiple important rights and interests, such as religious freedom and nondiscrimination on the basis of sexual orientation or gender identity (SOGI). The basic idea is that, before attempting to balance or trade off rights against one another, we should look for ways to simultaneously expand protections for rights that are, or seem to be, in conflict, or to limit each in narrow and principled ways.61

Fairness for all as a framework  

“Fairness for all” refers to an approach that seeks to protect multiple human rights that are sometimes in tension with each other—typically LGBTQ rights and religious freedom rights. It also refers to specific pieces of legislation that have resulted from a fairness for all approach.

Conceptually, fairness for all is grounded in the human dignity of every person. It acknowledges that from human dignity flows the protection of many rights, including rights to freedom and rights to equality. The approach seeks to ensure that all human beings are treated in a dignified manner, regardless of sexual orientation or gender identity. It also seeks to protect the rights to freedom of conscience and religion that are inherent to each human being. Robin Fretwell Wilson, a leading scholar in the area, has written with Tanner Bean that fairness for all proceeds from “a simple idea: faith, sexuality, and gender identity need not be at odds.”62 They explain further,

"The best way to protect religion is to protect the LGBT+ community from discrimination. And the best way to secure nondiscrimination protections is to make sure that religion is not inadvertently harmed. In practice, Fairness for All laws combine robust protections for [freedom of religion or belief] with non- discrimination protections for the LGBT+ community, building the strongest, most stable response to the needs of faith communities and religious individuals at a time of great social change."63

Elder Lance B. Wickman, former general counsel of The Church of Jesus Christ of Latter-day Saints, defined fairness for all this way:

"At bottom, it means that every person—including people of faith and their religious communities—should have enough space to live according to their core beliefs so long as they don’t harm the fundamental rights of others. It means pluralism. It means a fair opportunity for each person to participate in society, professions, the job market, and commerce. It means looking for less- burdensome alternatives when accomplishing important objectives. It means balancing competing interests so that as many people as possible can live as equal citizens according to their deepest values and needs."64

Elder Wickman further noted that a fairness for all approach “requires dialogue, understanding, goodwill, principled stances, hard compromises, and a willingness to adjust so that our laws and communities make space for everyone.”65 It includes making space to “live together with our deepest differences,” not in division because of them.66 Others have explained that fairness for all seeks to “get out of the winner-take-all paradigm” between LGBTQ rights and religious freedom.67 More specifically, it recognizes that litigation, which creates “winners” and “losers,” tends to fan the flames of division rather than result in a satisfactory balancing of both sides’ interests.68 Instead, as President Dallin H. Oaks has stated, a fairness for all approach pursues legislative solutions “through persuasion [and] good faith negotiation.”69

Fairness for all as a state legislative effort  

In the United States, legislation seeking to enact a fairness for all approach to addressing LGBTQ rights and religious freedom has been proposed at state and federal levels.

At the state level, Utah is unique in having passed what is known colloquially as “the Utah Compromise.”70 In 2015, Utah’s state legislature passed two landmark bills focused on protecting LGBT71 rights in employment and housing, as well as religious freedom in areas such as employment, expressive association, performance of government duties, and tax-exempt status.72 To date, Utah is the only state to have enacted comprehensive legislation protecting both religious exercise and LGBT rights. The bills’ passage was credited to a lengthy collaborative effort by LGBT individuals and organizations as well as religious individuals and organizations, including The Church of Jesus Christ of Latter-day Saints.73

A similar bill introduced in the Arizona legislature in 2022, containing protections for both religious freedom and LGBTQ nondiscrimination rights, was also supported by The Church of Jesus Christ of Latter-day Saints.74 That bill failed to garner enough support to reach a vote.

Fairness for all as a federal legislative effort  

  • Respect for Marriage Act (2022)

In 2013, the U.S. Supreme Court decided United States v. Windsor, holding the Defense of Marriage Act’s definition of marriage, as a union of one man and one woman, to be unconstitutional.75 The Windsor holding meant that the federal government cannot discriminate against married same-sex couples when determining federal benefits and protections.

Three years later, the Supreme Court decided Obergefell v. Hodges, holding that the right to marry is guaranteed to same-sex couples by the Due Process and Equal Protection Clause of the Fourteenth Amendment.76

The Respect for Marriage Act (RFMA 2022) confirmed these Supreme Court rulings, repealing the Defense of Marriage Act.77 At the same time, the RFMA provided that it could not be “construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.”78 Indeed, the Act establishes that religious organizations and their employees “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”79 The Church of Jesus Christ of Latter-day Saints supported the RFMA, stating, “the nation is more united when diverse individuals and groups can work cooperatively to advance sound policy.”80

  • Fairness for All Act (2019, passage still pending)  

The Fairness for All Act (FFA) is federal legislation first proposed in 2019 as an alternative to the Equality Act, which has not been passed by the U.S. Congress. The Equality Act would add sexual orientation and gender identity (SOGI) as protected classes to most sections of the Civil Rights Act of 1964, including public accommodations, public facilities, public funding, and public education.81 It would also add SOGI protections to other laws pertaining to housing, credit opportunity, and jury service.82 And it would expand the definition of public accommodations under the Civil Rights Act of 1964,83 potentially to include religious organizations. Perhaps most notably, the Equality Act does not carve out additional exemptions84 for religious organizations or individuals—in fact, it explicitly bars the federal Religious Freedom Restoration Act (RFRA) from providing either a claim or a defense.85

In contrast, the FFA takes the same general approach as the Equality Act by creating protected classes in most of the same civil rights contexts,86 but it also creates explicit religious freedom protections in each of these contexts. Moreover, the FFA does not bar application of RFRA’s foundational protections. And the FFA operationalizes how a person claims SOGI status—a provision missing from the Equality Act.87

Those who seek passage of the FFA are under no illusion that the bill will satisfy everyone. As former U.S. Congressman Chris Stewart and attorney Gene Schaerr have written, “If the FFA bill passes, neither side will get everything it wants but both sides will get vital protections for their core interests and reasonable accommodations in other important areas.”88 The Act’s goal, however, is significant: to “bring an end to the perpetual conflict between religious liberty and LGBTQ rights”89—something that efforts focused exclusively on LGBTQ rights or exclusively on religious freedom rights do not aim to accomplish.

Those in favor of the FFA claim that it enshrines legislatively the “live and let live” approach articulated in recent U.S. Supreme Court decisions.90 For example, in writing the Court opinion holding same-sex marriage to be a constitutional right, Justice Kennedy stated that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”91 In the famous Supreme Court case about a cake maker who did not want to create a custom cake for a same-sex wedding, Justice Kennedy, writing for the majority, articulated the same concept again: “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth[,]” and “[a]t the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”92

The 2022 Respect for Marriage Act, discussed above, codified this paradigm. Its findings note that “[d]iverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”93 The fairness for all approach can emulate this paradigm as a way forward when religious people with traditional beliefs and LGBTQ advocates are at an impasse.

Several groups have voiced support for the FFA, including 1st Amendment Partnership, American Unity Fund, AND Campaign, Center for Public Justice, Seventh-day Adventist Church, and The Church of Jesus Christ of Latter-day Saints.94

One of the FFA’s benefits to LGBTQ individuals would be to ensure they no longer face a patchwork of differing protections, depending on where they live. At present, 29 states allow “an LGBT person . . . [to] be fired, evicted, or denied basic services.”95 At the same time, in many states across the country, religious organizations that provide services to society’s most vulnerable through health care, foster care, homeless shelters, and food distribution programs are being put to a choice of complying with nondiscrimination laws that may violate their beliefs or ceasing operations.96 The FFA would also help ensure that religious freedom protections apply across jurisdictions.

Critiques of the Fairness for All Act  

Opposition to the fairness for all approach tends to focus less on disagreement over the notion of protecting both LGBTQ rights and religious freedom—though some object to this.97 Instead, most criticism focuses on the particular means proposed to accomplish the goal and the particular trade-offs proposed. Criticisms of the FFA exemplify this, as summarized below.

  • Critiques from the political right  

Many on the political right have opposed the federal FFA. Foundationally, some dispute the truth of sexual orientation and gender identity claims, from a philosophical or religious view, and believe the FFA would enshrine protections for false classes. Some critics argue that the need for antidiscrimination legislation is not clearly shown—that even though protections might not exist, discrimination is not necessarily happening. And some fear that the self- identifying nature of these classes could lead to problems in how the rights are vindicated.

Some, such as Ryan T. Anderson (The Heritage Foundation) and Robert P. George (Princeton University), have called the FFA “a bad compromise” that has insufficient protections for religious liberty.98 They argue that the bill’s language makes religious exercise protections “convoluted” and merely “implicit.”99

One concern among those on the right is that conferring protected class status to SOGI “would license officials to punish citizens who dissent from secular progressive orthodoxy.”100 They believe that SOGI “policies are now being used as swords to ‘punish the wicked’” who decline to adopt a new sexual orthodoxy.101 And they believe the FFA “will effectively teach that religious people ‘discriminate’—the kind of thing practiced and supported by bigots.”102 Relatedly, some are concerned that the FFA will lead to religious organizations losing tax- exempt status if they do not comply with SOGI antidiscrimination provisions.

Those on the right opposed to the Act also believe it is misguided because it implements antidiscrimination law as the norm and religious freedom as the exception. In their terms, this “[p]airing [of] a coercive norm” (nondiscrimination) “with a liberty exception” (religious freedom) fails to implement the “live and let live” approach that the FFA purports to embody. They believe that a true “live and let live” approach would allow LGBTQ people to “live” how they would like but not coerce others to affirm their mode of living via antidiscrimination laws.103

Conservative critics are also concerned that the Act insufficiently distinguishes “unjust discrimination from valid and honorable dissent from progressive ideology.”104 In other words, the Act’s default assumption would be that any form of distinction based on SOGI automatically amounts to invidious (arbitrary) discrimination that cannot be tolerated, barring an explicit exemption. Instead, critics propose an approach that “carefully consider[s] the needs of LGBT-identifying people that require a policy response, and then target[s] legislation at serving those needs.”105

  • Critiques from the political left  

On the political left, opposition to the FFA is more straightforward: the Act simply does not do enough to protect LGBTQ rights. Some believe that installing a legislative regime of exemptions in the context of introducing SOGI protections “signals that LGBTQ people are less worthy of protection” than other protected classes.106 Opponents of the FFA see some of the religious protections amounting to “taxpayer-funded discrimination.”107 Critics on the left also note that, because the FFA would advance its purposes by amending the Civil Rights Act of 1964, the FFA would create new exemptions that could affect existing protected classes, such as race.

In contrast, the Equality Act allows no exemptions, requiring that SOGI protections be absolute. The Equality Act’s findings assert that “only by forbidding discrimination is it possible to avert or redress the harms” to LGBTQ people, legislatively.108 For critics on the left, the Fairness for All Act, which essentially adds religious exemptions to the Equality Act, is an intolerable way forward.

Responding to critiques  

Fundamental to resolving the issue of seemingly competing LGBTQ nondiscrimination interests and religious freedom interests is the recognition that we live in a diverse society, which includes diverse views about morality, sexuality, and religion. Policy approaches that seek a winner-take-all victory for either religious freedom or LGBTQ rights will be perceived as tone deaf and alienating to the “other side.” This will create further rifts and divisions between LGBTQ and religious communities, which may be especially painful to those who are a part of both communities. A way forward will require an understanding of the perceived fears religious and LGBTQ people have about a potential winner-take-all victory for the “other side.”

  • Addressing concerns on the political right  

Regarding fears of complicity in supporting sexual immorality, supporting a fairness for all approach does not require agreeing with or becoming complicit with views one does not hold. For example, an LGBTQ person need not affirm a religious group’s beliefs about marriage and sexuality, and a religious person need not affirm homosexual activity or gender transitioning, in order to secure rights that protect people who hold differing views and choose differing paths. Indeed, protecting the religious freedom of others inherently includes protecting their right to worship in ways one might find false or even repugnant. But it is still possible to choose to protect that right for others, even if one does not agree with how it is exercised.

Even if one believes gender at birth is part of a person’s eternal identity, it is nonetheless possible to want to ensure that all people have the ability to earn a living and have a place to live. In the United States, there is no practical way to ensure such protection without creating protected classes. Fairness for all creates protected classes in limited contexts to better respect the human dignity of others, no matter how others may identify themselves.

Some worry that implementing an approach where antidiscrimination is the rule and religious freedom is the exception is problematic. But LGBTQ rights are already codified heavily throughout much of the United States, and momentum continues to grow in that direction. According to the Council for Christian Colleges and Universities, nearly 60% of Americans live somewhere that has already implemented some form of SOGI protection.109 The U.S. Supreme Court held in 2020 that sex discrimination under Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity,110 and the Biden administration used that case and its reasoning to protect sexual orientation and gender identity throughout administrative agency regulations.111 Furthermore, same-sex marriage has been legal across the country since the Supreme Court’s 2015 Obergefell decision,112 and the 2022 Respect for Marriage Act statutorily protects the right to same-sex marriage.113 Although same-sex marriage is sometimes classified as conduct and sexual orientation is classified as status, the two are interconnected, and the Supreme Court has not drawn a fine line to distinguish them. Instead, it has noted that recognition of same-sex marriage also means lesbians and gays must be treated equally in society.114 In short, SOGI protections are already broadly enacted and are only likely to increase. The FFA would not be going significantly further; instead, it would simply ensure that religious freedom protections are included so that antidiscrimination does not become the rule with no exemptions.115

In addition, laws that protect only religious freedom have become increasingly unpalatable to the public. At the time Utah passed legislation creating protected classes for SOGI in housing and employment with accompanying religious freedom protections, Indiana faced public outrage as it attempted to pass a state Religious Freedom Restoration Act (RFRA) that was seen to threaten LGBTQ rights.116 Other states around that time saw similar challenges to passage of state RFRAs because the proposed legislation did not address concerns about LGBTQ rights.117 Holding out for legislation that focuses exclusively on religious freedom will likely be met with the same perception that the legislation is inherently threatening to LGBTQ rights.

There is an also an argument for political expediency in adopting the FFA. The Equality Act has passed the U.S. House twice (in 2019 and 2021).118 But the Equality Act would not allow claims under the federal Religious Freedom Restoration Act, limiting religious individuals and institutions to seeking recourse under the Free Exercise Clause, which is relatively weak and unlikely to provide accommodation under the current precedent of Employment Division v. Smith.119 Public opinion continues to trend toward favoring the general premise of the Equality Act,120 despite its significant negative implications for religious freedom. FFA provides a way forward before it is too late to work religious freedom protections into federal nondiscrimination legislation that may be inevitable.

  • Addressing concerns on the political left  

Some see the FFA as signaling a message that LGBTQ persons are lesser because the antidiscrimination provisions are accompanied by religious exemptions. Critics note that legislation prohibiting racial discrimination comes with no such exemptions. But the U.S. Supreme Court has always treated race differently than SOGI status. As mentioned above, the Supreme Court’s decision about same-sex marriage, as well as the Respect for Marriage Act, articulated that beliefs that same-sex marriage is wrong may be founded on “decent and honorable religious or philosophical premises.” The Court has also signaled that religious exemptions would be important in the context of Title VII SOGI claims.121

In a 2023 case involving a business owner’s religious objections to creating websites celebrating same-sex marriage, the U.S. Supreme Court further indicated that it does not consider SOGI status quite the same as race. In that case, the Court held that application of a public accommodation antidiscrimination law would unconstitutionally compel the owner to create speech contrary to her religious beliefs,122 even though the absence of government coercion might result in speech that is frustrating and hurtful to those who identify as LGBTQ. Indeed, in its holding, the Court wrote that “no public accommodations law is immune from the demands of the Constitution.”123 In other words, it is clear that the law has and likely will continue to treat SOGI status as a protected status that may sometimes be subject to exemptions. Therefore, if those who identify as LGBTQ want to help define the scope or context of those exemptions, rather than rely on the Supreme Court define them, the FFA is an opportunity for them to do so.

Concluding thoughts on resolving objections to fairness for all  

In conclusion, most objections to the fairness for all approach are rooted in sincere and deeply held beliefs about the importance of either LGBTQ rights or religious freedom. But other approaches tend to be absolutist. They fail to recognize the diversity of society and the need to accommodate views and actions they may not agree with.

Interestingly, both religious people and LGBTQ people share similarities in the type of rights they seek to defend. They both share an interest in protecting unconventional and unpopular beliefs and actions. Religious people who protect religious freedom are accustomed to protecting the rights of those who hold and exercise beliefs they may not agree with. And LGBTQ rights activists are accustomed to advocating for acceptance of beliefs, conduct, and status that historically have not experienced mainstream acceptance. Both religious people and LGBTQ people feel that religion and sexual orientation/gender identity, respectively, are core to their personal identities. Importantly, and often overlooked in debates, is the fact that many people share both identities. By focusing on human dignity and promoting a spirit of mutual regard, a fairness for all approach can ensure that LGBTQ people and religious people are mutually protected in these aspects of identity that are so important to them.

In addition, advocates for LGBTQ rights and religious rights will need to recognize that not all protections are equally important. For religious people, it may be less important to maintain religious freedom in certain public activities than in other, more intimate spheres.124 And for LGBTQ individuals, compelling religions to adopt policies that violate their beliefs cannot be as important as ensuring LGBTQ individuals are treated equally in the public square. Both sides must be willing to recognize their own most important priorities and acknowledge the most important priorities of the “other side.”

Fairness for all is a way forward that protects the human dignity of everyone, including those with whom we might disagree the most.

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References

61. This topic was originally drafted by Anna Bryner, JD, BYU Law class of 2024.

62. Robin Fretwell Wilson & Tanner Bean, Fairness for All: An Answer to the Special Rapporteur’s Call for a Practical Resolution Between Freedom of Religion or Belief and LGBT+ Non-discrimination, ICLRS, TALK ABOUT: LAW AND RELIGION (Apr. 20, 2020), https://talkabout.iclrs.org/2020/04/20/fairness-for-all-an-answer.

63. Id.

64. Lance B. Wickman, Promoting Religious Freedom in a Secular Age: Fundamental Principles, Practical Priorities, and Fairness for All (July 7, 2016), ICLRS RELIGIOUS FREEDOM LIBRARY, https://newsroom.churchofjesuschrist.org/article/promoting-religious-freedom-secular-age-fundamental-principles-practical-priorities-fairness-for-all.

65. Id.

66. Religious Freedom and Fairness for All, NEWSROOM, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (Apr. 13, 2015), https://newsroom.churchofjesuschrist.org/article/religious-freedom-and-fairness-for-all; see also The Support for Fairness for All, ALLIANCE FOR LASTING LIBERTY, https://fairnessforall.org/the-support-for-fairness-for-all-strategy (last visited Dec. 2024).

67. Shapri D. LoMaglio, Fairness for All, MAGAZINE, CHRISTIAN COLLEGES & UNIVERSITIES, Spring 2017, https://www.cccu.org/magazine/fairness-for-all.

68. See J. Stuart Adams, Fairness for All in a Post-Obergefell World: The Utah Compromise Model, 2016 UNIVERSITY OF ILLINOIS LAW REVIEW 1651, 1655 (2016).

69. Dallin H. Oaks, Going Forward with Religious Freedom and Nondiscrimination (Nov. 12, 2021), ICLRS RELIGIOUS FREEDOM LIBRARY, https://www.religiousfreedomlibrary.org/documents/going-forward-with-religious-freedom-nondiscrimination.

70. For a history of the Utah Compromise, see Adams, supra, at 1652–60.

71. LGBT is the term used in the legislation.

72. Antidiscrimination and Religious Freedom Amendments, S.B. 296, 61st Leg., Gen. Sess. (Utah 2015) (codified in scattered sections of Utah Code §§ 34A, 57 (2024)) (protecting LGBT individuals from employment and housing discrimination and guaranteeing employees’ freedom of expression, both inside and outside the workplace); Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality, S.B. 297, 61st Leg., Gen. Sess. (Utah 2015) (codified in scattered sections of Utah Code §§ 17, 30, 63G (2024)) (giving religious organizations discretion in performing marriages and conducting counselling, ensuring access to state-authorized celebrants for all lawful marriages, and guaranteeing professionals freedom of expression in non-work settings).

73. See Sarah Jane Weaver, What 1 General Authority Seventy Learned After California’s Prop. 8 About Peacemaking, THE CHURCH NEWS (July 12, 2024) (reporting on Elder Alexander Dushku’s remarks at the 2024 Notre Dame Religious Liberty Summit about the Utah Compromise negotiation process), https://www.thechurchnews.com/living-faith/2024/07/12/elder-alexander-dushku-2024-notre-dame-religious-liberty-summit-polarization-peacemaking-friendship-california-prop-8.

74. Official Statement, Why the Church of Jesus Christ of Latter-day Saints Supports a New Bipartisan Religious Freedom and Non-discrimination Bill in Arizona, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (Feb. 7, 2022), https://newsroom.churchofjesuschrist.org/article/statement-nondiscrimination-bill-arizona.

75. United States v. Windsor, 570 U.S. 744, 769, 774 (2013) (explaining that the Act’s definition of marriage, to the exclusion of same-sex couples, “violate[d] basic due process and equal protection principles applicable to the Federal Government” under the U.S. Constitution’s Fifth and Fourteenth Amendments).

76. Obergefell v. Hodges, 576 U.S. 644 (2015).

77. Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305 (2022) (codified at 28 U.S.C. § 1738C (2024)).

78. Pub. L. No. 117-228, § 6(a).

79. Id. § 6(b).

80. News Release, President Oaks Explains the Church’s Position on the Respect for Marriage Act, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (Feb. 11, 2023), https://newsroom.churchofjesuschrist.org/article/president-oaks-church-position-respect-for-marriage-act.

81. See H.R. 15, 118th Cong. (2023) and S. 5, 118th Cong. (2023).

82. Id.

83. Id.

84. The Equality Act would maintain religious exemptions under current civil rights laws, including Title VII of the Civil Rights Act (allowing religious organizations to consider religion in employment decisions).

85. H.R. 15, 118th Cong. (2023) and S. 5, 118th Cong. (2023).

86. See H.R. 1440, 117th Cong. (2021).

87. Id.

88. Chris Stewart & Gene Schaerr, Why Conservative Religious Organizations and Believers Should Support the Fairness for All Act, 46 JOURNAL OF LEGISLATION 134, 138 (2019).

89. Id.

90. Id. at 137.

91. Obergefell v. Hodges, 576 U.S. 644, 672 (2015).

92. Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 584 U.S. 617, 631 (2018). Justice Kennedy also wrote that “these disputes must be resolved with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” Id. at 640. In Bostock v. Clayton County, 590 U.S. 644 (2020), which held SOGI to be protected by sex discrimination protections under Title VII of the Civil Rights Act of 1964, the Court also noted that in recognizing SOGI as protected, it was “also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” 590 U.S. at 681–82.

93. Respect for Marriage Act, Pub. L. No. 117-228, § 2, 136 Stat. 2305, 2305 (2022).

94. The Church of Jesus Christ Supports the Federal Fairness for All Act, NEWSROOM, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (Dec. 9, 2019), https://newsroom.churchofjesuschrist.org/article/federal-fairness-for-all-support- december-2019.

95. The Solution, ALLIANCE FOR LASTING LIBERTY, https://live-american-unity-fund.pantheonsite.io/the-solution (last visited Dec. 2024).

96. Id.

97. Compare Ryan T. Anderson & Robert P. George, The Unfairness of the Misnamed “Fairness for All” Act, JOURNAL OF LEGISLATION ONLINE 1 (2020), https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1002&context=jleg_blog, with “All We Want Is Equality”: Religious Exemptions and Discrimination Against LGBT People in the United States, HUMAN RIGHTS WATCH (Feb. 19, 2018), https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exemptions-and-discrimination-against-lgbt-people.

98. Anderson & George, supra, at 1.

99. Id. at 3.

100. Id.

101. Ryan T. Anderson, Shields, Not Swords, NATIONAL AFFAIRS, Spring 2018, 75 (citation omitted), https://ssrn.com/abstract=3141908.

102. Anderson & George, supra, at 4.

103. Id. at 2.

104. Id. at 3.

105. Id. at 3.

106. Ian S. Thompson, Three Ways the “Fairness for All Act” Doesn’t Protect LGBTQ People from Discrimination, ACLU (Dec. 9, 2019), https://www.aclu.org/news/lgbtq-rights/three-ways-the-fairness-for-all-act-doesnt-protect-lgbtq-people-from-discrimination.

107. Id.

108. H.R. 15, 118th Cong. (2023), Findings ¶ 22 (emphasis added).

109. LoMaglio, supra.

110. Bostock v. Clayton County, 590 U.S. 644 (2020).

111. See, e.g., Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021) (“Under Bostock’s reasoning, laws that prohibit sex discrimination . . . prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”); see also Exec. Order No. 14,021, 86 Fed. Reg. 13803 (Mar. 11, 2021) (“[A]ll students should be guaranteed an educational environment free from discrimination on the basis of sex . . . including discrimination on the basis of sexual orientation or gender identity.”).

112. Obergefell v. Hodges, 576 U.S. 644 (2015).

113. Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305 (2022).

114. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, for example, the Court noted the importance of ensuring gay and lesbian individuals are treated fairly in society, even though the baker was willing to serve gay and lesbian customers in any context other than in creating a custom wedding cake for a same-sex wedding. 584 U.S. 617 (2018).

115. This is the approach that the Equality Act seeks to implement. It makes no accommodations for religious freedom and specifically prohibits the application of the federal Religious Freedom Restoration Act. Other administrative agency approaches have also prohibited religious exemptions, forcing litigation like Little Sisters of the Poor v. Burwell, 591 U.S. 657 (2020), where a group of Catholic nuns would have been required to provide birth control through their employment plans under regulations by Health and Human Services implementing the Affordable Care Act.

116. Dwight Adams, RFRA: Why the ‘Religious Freedom Law’ Signed by Mike Pence Was so Controversial, INDYSTAR (Apr. 25, 2018), https://www.indystar.com/story/news/2018/04/25/rfra-indiana-why-law-signed-mike-pence-so- controversial/546411002.

117. For a concise history of various state attempts to pass RFRAs in the mid-2010s, see Andrew Koppelman, Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law, 88 SOUTHERN CALIFORNIA LAW REVIEW 619, 629–38 (2015).

118. 165 CONG. REC. H3931 (daily ed. May 17, 2019); 167 CONG. REC. H633 (daily ed. Feb. 25, 2021).

119. 494 U.S. 872 (1990). Smith says that if a law is neutral and generally applicable, then the government need only show it had a rational basis for incidentally burdening religion. Arguably, two cases from 2021 have made Smith more penetrable. In Tandon v. Newsom, the Court held that a law is not neutral toward religion if it treats religion worse off than comparable secular activity. In Fulton v. Philadelphia, the Court held that a law is not generally applicable if it allows for other kinds of individualized exemptions. If a law is not neutral and generally applicable, then it gets strict scrutiny review, which shifts the burden to the government to show it had a compelling interest in burdening religion and that it accomplished its interest through narrowly tailored means. However, even with Fulton and Tandon, the Equality Act could likely still be deemed neutral and generally applicable, leaving only rational basis review, which the Act would almost certainly pass.

120. There has been little polling on the Equality Act itself, but there has been significant polling on Americans’ views about LGBTQ nondiscrimination. Eighty-two percent of Americans favor LGBTQ antidiscrimination laws in employment, public accommodations, and housing. Frank Newport, American Public Opinion and the Equality Act, GALLUP (Mar. 19, 2021), https://news.gallup.com/opinion/polling-matters/340349/american-public-opinion-equality-act.aspx.

121. Bostock v. Clayton County, 590 U.S. 644, 681–82 (2020).

122. See 303 Creative v. Elenis, 600 U.S. 570 (2023). The case was decided on Free Speech Clause grounds.

123. Id. at 592.

124. Wickman, supra.