Neely was hauled before the Wyoming Supreme Court and removed from the bench for answering a local reporter’s hypothetical question with basic Sunday school teaching. Her legal woes were only made possible because Wyoming’s Code of Judicial Conduct had been altered to include the language of “sexual orientation and gender identity” (SOGI). Since then, Wyoming has watched the progressive lobby working to insert identical language into state law, city ordinances and school policies.
For nine years running, the Wyoming legislature has voted against putting SOGI language into state law. Beginning in 2015, it has been brought before the communities of Laramie, Cheyenne, Sheridan, Casper and Jackson. Scattered school districts have also considered and rejected attempts to add this language to school policies.
Also, in Washington, progressives have been trying to put this language into federal law since 2015. For four years, these attempts never made it out of committee. But this year is different. Last fall’s election transferred control of the House from Paul Ryan to Nancy Pelosi. As soon as she held the gavel, Pelosi announced that she would make SOGI legislation one of her top priorities.
On March 13, 2019 she made good on this promise by introducing H.R. 5, the so-called “Equality Act.” On May 1 it passed out of the House Judiciary Committee on a straight party line vote. On Friday, May 17, it passed the House on a vote of 236-173. Wyoming’s lone representative in the House, Liz Cheney, voted against it.
As the H.R. 5 goes before the U.S. Senate, and the consideration of Wyoming’s Senators Enzi and Barrasso, Wyomingites need to know the three fundamental ways it will change federal law.
First, it will repeal the Religious Freedom Restoration Act of 1993 (RFRA). This is the law that was introduced by Senator Chuck Schumer after the Supreme Court denied religious protections to native Americans. It passed the Senate on a 97-3 vote and cleared the House without a single objection. Then President Bill Clinton signed it into law.
RFRA does not absolutely prohibit the federal government from restricting religious freedoms, but it does require the government to prove to a court of law that any restrictions of religious freedoms are for a compelling government interest. It further requires that that compelling government interest be met in the least restrictive way possible.
H.R. 5 would make it possible for the government to restrict the free exercise of religion without meeting these two requirements. It is a law that effectively revokes the First Amendment of the U.S. Constitution.
Second, the so-called Equality Act redefines the legal term “public accommodation.” Historically, “public accommodations” have been understood as motels, dining establishments and theaters. H.R. 5 would expand public accommodation to mean any individual, “who is a provider of a good, service, or program.”
This drastic change is designed to strip away individual property rights by exposing all people to the reach of federal law. Can you think of a single person who is not a “provider of a good”? Such language makes the term “public accommodation” meaningless. Any category that includes everyone, ceases to be a category at all.
Third, the law would insert SOGI language into the 1964 Civil Rights Act and the 1968 Fair Housing Act. Currently, federal law prohibits “discrimination on the basis of race, color, religion, sex, or national origin.” H.R. 5 would add “sexual orientation and gender identity” to that list.
To the casual reader, that may seem to be a good thing. If you are like me, you don’t want to discriminate against anyone, and you want our laws to protect people from discrimination of all sorts. So why shouldn’t we add this language to federal law?
There are three good reasons why adding this language is a bad idea. First, sexual orientation and gender identity cannot be objectively known. Race, color, religion, sex and national origin can all be determined by simple observation. All except religion are located in a person’s body and written into his or her DNA.
Sexual orientation and gender identity are not categories of body but of mind. Parties at law—whether law enforcement officers or the people who will be charged with crimes—cannot know these things without asking personal questions. When a man enters a cakeshop, how can the proprietor know whether he is a man, a cis-male or a male-to-female trans who prefers to present as a male?
That brings us to the second problem with these laws. Since SOGI language started appearing in state laws, city ordinances and school policies, nobody has ever been charged for discriminating against a person. But many have been charged for declining to do what someone demanded.
Currently the Civil Rights Act of 1964 requires that businesses not withhold the goods and services that they supply from anyone. The new law would require that businesses—and even private persons—do and say things that they would not otherwise do and say for anyone. And what exactly must they do and say? That is an open question.
This is the third reason that the insertion of SOGI language into federal law would be a disaster. The specific acts and words that SOGI laws require are always changing. SOGI language was first inserted into Wyoming’s Code of Judicial Ethics in 2009. It took five years before anyone “knew” that this language would deny a judge her right to speak openly.
Similarly, Colorado added SOGI language in 2008. At the time, nobody knew, and few would have guessed, that it would require people to say that same-sex unions were marriages. But four years later, Jack Phillips was charged with the crime of being unwilling to express this opinion. Even then, nobody knew that the law would require people to say that men can become women. But six years after that Phillips was charged with that new crime under the same law.
I call this aspect of SOGI language “Easter eggs.” Nobody knows what’s in them or when they will break open. They effectively put a wildcard in law that can become anything the prosecutor wants it to become.
The existence of these “Easter eggs” is not some crazy legal theory. It has been happening for more than a decade. The question is not whether new crimes will be discovered. They will. The only question is what will be criminalized, and when.
In fact, since this newspaper is a public good and service, it would also fall under the Equality Act. I wonder how long it will remain legal to write these words. When the day comes that some prosecutor deems these words “discriminatory,” will the newspaper be punished, or only the author? Will archived copies be subject to public burning?
If the Equality Act goes on to pass the Senate, we will certainly find out.
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