The Unfairness of the Misnamed 'Fairness For All' Act

Abstract

Intransigence is a vice, but there is no virtue in accepting bad compromises. The “Fairness for All” legislation is a bad compromise — and as a result, would be a misguided response to the Supreme Court’s Bostock decision. To show this is not to question the good faith of the bill’s advocates, with whom we have been in friendly dialogue for years. It’s merely to note that despite the undoubted goodwill of the bill’s proponents (and despite its name), the bill is grievously unfair. Its protections for religious liberty are insufficient. And they come at the price of legally enshrining a misguided sexual and gender ideology — which would license officials to punish citizens who dissent from secular progressive orthodoxy.

These costs are unsurprising: from the start, the compromise sought was misframed in two ways.

First, there was a woeful mismatch in ambitions: The “conservative” side failed even to seek protections for many crucial interests apart from religious liberty that are imperiled by the bill’s antidiscrimination component. As Stewart and Schaerr stress, FFA is narrowly focused on “religious liberty and LGBTQ rights” as the result of “negotiations between conservative religious groups and LGBTQ rights groups” designed to protect “their core interests.” But religious freedom isn’t the only interest here. What about women’s and girls’ privacy, safety, and equality, or the wellbeing of children with gender dysphoria? FFA’s approach is narrow and selective. A sound approach would be inclusive and holistic, considering all of the interests and people who would be harmed by the proposed changes to civil rights law.

Second, while the compromise purports to allow both sides to “live and let live,” it does not and could not do that, because only one side of the deal involves a form of legal freedom; the other side involves a form of legal coercion. By definition, antidiscrimination laws coerce some citizens on behalf of others—whereas religious liberty limits government to protect the personal freedom of all. Antidiscrimination policies—sometimes justifiably, to be sure—use legal force to make some people, in some domains, live by the majority’s values; religious liberty protects everyone’s interest in living by his or her own convictions. Pairing a coercive norm with a liberty exception is not live and let live. A true live-and-let-live approach would leave LGBTQ-identifying people free to live by their beliefs, but not “free” to use legal mechanisms to force others to act as if they shared those beliefs.

Elevating “sexual orientation and gender identity” to a protected class in the Civil Rights Act isn’t about “live and let live” at all. It’s about legally enforcing new norms of sexuality nationwide, with limited “spaces” of freedom for some religious actors. FFA effectively helps brand alternatives to the favored ideology as bigotry while carving out a limited “right to discriminate” for some “bigots.” This will do harm that Stewart and Schaerr fail to grapple with — harm to people’s privacy, safety, equality, and physical and mental wellbeing, along with forms of liberty — not just for believers, but for all dissenters from progressive gender ideology.

The Supreme Court’s ruling in Bostock will undoubtedly impose some — though perhaps not all — of these harms on the nation. (We say perhaps not all because the Court’s simplistic logic on “sex” discrimination does not directly add SOGI to all of our civil rights laws, and therefore many questions remain.) Any effective response to the Court’s ruling needs to focus not solely on religious liberty, but on the substantive harms that could come. This means we need legislation that clarifies what does, and what does not, constitute unlawful “discrimination” on these issues.

Religious communities are concerned with transcendent matters, but most also seek to promote the temporal common good. Doing so in a culture so often hostile to authentic flourishing is not easy. We would never accuse supporters of FFA of seeking to save face or win liberal media accolades. They are doing what they believe to be in the public interest. But so are groups who find FFA’s selective focus and structural flaws unacceptable.

Only the truth can promote authentic flourishing and peace. Faith and reconciliation detached from the truth are counterfeits. While we work to find a way of addressing legal and cultural conflicts that is fair for all, we must not allow the truth to be treated in law as the law treats bigotry, or to surrender vital principles of public policy that are central to the common good.

In the aftermath of the Court’s Bostock decision, we need to define explicitly what sort of conduct counts as unlawful, while also protecting everyone’s freedom to engage in legitimate actions based on the convictions that we are created male and female and that male and female are created for each other. Religious liberty is an important human right, but we must also protect parental rights, women’s privacy and safety, and medical professionals’ conscience rights. We must refuse to impose a misguided gender ideology on the nation. This holistic and inclusive approach would achieve true fairness for all.

Keywords: civil rights, religious liberty, gender identity, sexual orientation, privacy, equality, fairness