Douglas Laycock, a law professor at the University of Virginia, has been a longtime supporter of same-sex marriage. What’s made him unusual is that in recent years he’s been trying to make the case to liberals that “same-sex marriage and religious liberty can co-exist.” In 2017 he co-authored an article at Vox with another law professor to argue that Jack Phillips, the Evangelical Christian baker in Colorado at the center of the Masterpiece Cakeshop Supreme Court case, should be allowed to follow his conscience to not bake a cake for a same-sex wedding.
Laycock has also been a longtime supporter of enacting a federal gay-rights non-discrimination law, but he doesn’t support the Equality Act, a bill just approved by the House of Representatives that would add “sexual orientation” and “gender identity” to the 1964 Civil Rights Act, because it would “crush” conscientious objectors.
“It goes very far to stamp out religious exemptions,” Laycock tells National Review in an email. “It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”
While the bill passed the House today and will be bottled up in the Senate, it has close to universal support among Democrats and would very likely become law if Democrats control the White House and both chambers of Congress and abolish the Senate filibuster.
What exactly would the Equality Act mean for religious schools throughout the country? “The short answer is that religious schools would be heavily regulated with respect to sexual orientation and gender identity,” writes Laycock. “They would have left an array of constitutional defenses, most of which are undeveloped and uncertain at best.”
Laycock says that religious schools would probably be viewed as “public accommodations” under the Equality Act even if they refuse all federal funding. They could argue that they are covered under the existing exemption of the Civil Rights Act (section 702), but he observes that “they haven’t done well with that argument lately in the lower courts. There have not been that many cases, and the Supreme Court has not spoken; it might be more sympathetic.”
“Schools would still have the ministerial exception, which is constitutional and beyond Congress’s power to repeal. It should protect them with respect to teachers teaching a religion class, or leading chapel services, but courts have generally held that other teachers are not ministers for purposes of the exception,” he adds.
Laycock argues there is only a very slim chance that the Supreme Court would overturn its 1990 decision in Employment Division v. Smith holding that religious dissenters are subject to generally applicable laws and then rule in favor of an exemption for religious schools: “It is conceivable, just barely, that the conservative majority on the Supreme Court would overrule Smith and then find no compelling interest in requiring religious schools to teach students, or hire or retain math teachers, who flout the school’s religious teachings. That is like drawing an inside straight, but it could happen.”
Of course, the Equality Act would have implications that reach far beyond religious and public schools. Here’s how Laycock assessed some of the issues the legislation would raise:
National Review: Would the Equality Act require almost all religious and public schools to give transgender students the right to compete on the sports teams of their preference and full access to bathrooms, showers, locker-rooms of their preference?
Douglas Laycock: Probably, although this would be a matter of judicial interpretation. There are arguments that some judges might accept that some of these applications involve genuine differences. The bathroom issue is much exaggerated, because transgender people will always be in stalls, and because they would cause a greater disturbance using the restroom that does not match their outward appearance. I’m not sure that pre-op transsexuals want to be in an open shower or locker room of the opposite sex, or that women and girls would stand for it. Schools may be pushed into cubicles or private changing rooms. And as recent disputes in track and weightlifting illustrate, there are genuine physical differences in sports that might get judicial attention.
NR: Would prison inmates be granted the right to be jailed according to their gender identity?
Laycock: Probably, but again this would be a matter of judicial interpretation. Transgender women are probably safer in the women’s prison. Transgender men, especially pre-op, are probably at much greater risk in the men’s prison.
NR: Would a religious doctor be required to perform gender-reassignment surgery or provide hormonal treatment?
Laycock: Maybe, if he does other reproductive surgeries that are arguably analogous. But not doctors in other specialties. And doctors in the relevant specialties might be protected by existing conscience legislation for medical providers, which the Equality Act does not repeal. Those laws were originally focused on not performing or assisting with abortions, but some are more broadly worded and might apply; I have not looked at them recently. Such a doctor would also have free-exercise-clause arguments. . . .
NR: Would Jack Phillips and others like him have any plausible First Amendment defense if the Equality Act went into effect?
Laycock: Yes. The Equality Act cannot limit constitutional defenses. I think that Masterpiece Cakeshop has broader implications than have been recognized, and with a bit of savvy lawyering, it could lead to pretty general protection for wedding providers. . . . The experience with Masterpiece Cakeshop is also probably a major part of the reason that four justices called for reconsidering Employment Division v. Smith.
NR: You support a federal non-discrimination law with adequate religious-liberty protections. How pervasive of a problem is anti-LGBT discrimination? In 2019, couldn’t almost all unjust discrimination be deterred or stopped through boycotts and shaming?
Laycock: I don’t know any source of good data, but I don’t think anti-gay discrimination is pervasive. Clearly it still happens. Clearly it is declining as public attitudes change. Same-sex couples have higher educational levels, higher employment rates, and higher median income than opposite-sex couples. But those average numbers don’t mean that individuals aren’t losing jobs or apartments on occasion, or being humiliated in individual incidents. These things happen more often in the states that are least likely to enact state gay-rights laws. Reliance on boycotts and shaming instead of the law is dangerous; it can easily degenerate into vigilante or mob justice. The wedding vendors who have claimed religious exemptions, which I think they deserve, have been the targets of boycotts, defamatory reviews on consumer websites, and vandalism.