WTE: WTE should join Cheney in opposing the Equality Act

When Nancy Pelosi became the new speaker of the House of Representatives, she promised to make the so-called “Equality Act” a top priority. She wasn’t kidding. H.R. 5 was introduced on March 13, 2019 in just over two months it passed the House on a 236-173 vote.

Wyoming’s Liz Cheney voted against it for good reasons. Now it goes to the Senate including Wyoming’s delegation, Mike Enzi and John Barrasso. You need to know the three fundamental ways it will change federal law.

First, it repeals the Religious Freedom Restoration Act of 1993 (RFRA). This law 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 unanimously. Bill Clinton signed it into law.

RFRA allows the federal government to restrict the free exercise of religion only on two conditions. It must prove to a court of law both that the restriction is for a “compelling government interest,” and that this compelling interest is met in the “least restrictive way possible.” By removing these requirements, H.R. 5 effectively revokes the First Amendment of the U.S. Constitution.

Second, the so-called Equality Act redefines the legal term “public accommodation.” The Civil Rights Act uses this category to place boundaries on its awesome exercise of state power. It covers 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.” When a category includes everyone, it ceases to be a category at all. It’s ability to limit the raw exercise of power no longer exists.

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.

At first blush, that may seem 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 invidious discrimination of any kind. But the addition of this language does not prevent invidious discrimination. It creates it.

It does so in three ways. 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 bodily realities, written into our DNA.

Sexual orientation and gender identity are not categories of body but of mind. Parties at law—both enforcers and defendants—don’t have a fair chance to know a person’s identity before charges are levelled. After all, one of the fundamental claims of identity theory is that body parts, grooming, clothing, and even biological facts are irrelevant to a person’s perceived identity.

That leads to a second problem. In the decade since SOGI laws started multiplying, nobody has ever been charged for discriminating against a person, as such. Rather, through a sleight of hand, prosecutors have alleged that reluctance to positively affirm the latest claim is itself discriminatory.

While the Civil Rights Act of 1964 forbids specific acts of invidious discrimination. SOGI laws compel people to speak an ever-expanding list of new orthodoxies even when they know it is false. What exactly are these? That remains 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 a moving target.

For example, Colorado added SOGI language in 2008. At the time, Colorado denied that same sex couples could be married. Few could have guessed that a mere four years later SOGI language would compel a private business to positively affirm that same-sex unions are marriages. But that’s what Colorado alleged when they charged Jack Phillips with a crime.

Even in 2012, however, no one in America had been compelled to say that a man can become a woman. Then last summer Colorado charged Phillips with a new crime when he declined to convey that message.

What speech will it compel in the future? In recent months we have seen politicians and media-types claim that it is “unscientific” to believe what every embryology textbook affirms. How long before private persons are required to state that an unborn child is not a human being?

SOGI language effectively puts a wildcard in law that can become anything the prosecutor wants it to become. The question is not whether new crimes will be invented. They will. The only question is what will be criminalized, and when.

In fact, under H.R. 5 this newspaper and this author are both considered “public goods” and “services.” How long will it remain legal to write and publish these lines? When the day comes that some prosecutor deems these words “discriminatory,” will the newspaper be punished, or only the author? Will back issues be burned, will editors be jailed?

If the Equality Act goes on to pass the Senate, we may soon find out.