Is the Fairness for All Act Constitutional?

 Is the Fairness for All Act Constitutional?

There is a stark conflict between freedom of religion and freedom from discrimination based on sexuality. These two freedoms are huge priorities and it makes it difficult constitutionally when one’s religion requires one to discriminate. In order to protect one’s freedoms, you have to restrict another’s. In an attempt to legislate grounds around the conflict between these two freedoms, a republican senator has proposed a bill. The Fairness for All Act has been proposed by Chris Stewart and makes sexual orientation and gender identity protected from discrimination like race, sex, or religion. However, it gives certain religious groups an exemption from non-discrimination against sexuality and gender identity. This would give religious organizations the right to not serve or employ those that they do not agree with. It also would allow adoption groups to disqualify applicants on basis of religious grounds. The Human Rights Campaign has come out against the proposed bill saying that it is a, “double whammy of dangerous rollbacks and discriminatory carve-outs”. Stewart states he knows how controversial the bill is but it is a compromise between these two freedoms, however most of its supporters are religious groups. The ACLU has also come out against the bill saying it lowers protections for LGBTQ individuals and puts their sexuality below other characteristics such as race, gender, and religion. 

The Supreme Court has continuously been hearing cases around LGBTQ rights and has set some precedents to follow. In 2018, the Supreme Court heard a LGBTQ discrimination

case, Masterpiece Cakeshop, Ltd vs Colorado Civil Rights Commission, and ruled by a 7-2 decision that private businesses can discriminate against sexuality because of sincere religious beliefs when a man was allowed to refuse service to a gay couple for a cake. This case prioritized religious freedom over LGBTQ protections.

In 1996, Boy Scouts of America v Dale, the Supreme Court ruled that private organizations could single out LGBTQ individuals when they ruled it was constitutional for Boy Scouts to fire an assistant scout master based on his sexuality. But last June the Court ruled that LGBTQ rights are protected under the Civil Rights Act, meaning that you can not fire someone for being LGBTQ. However, the majority opinion from Justice Gorsuch argued this right was because it would be discrimination based on sex not sexuality. Justice Alito and Thomas dissented in this opinion stating that you should not interpret the constitution to reflect modern ideals. The precedents the Supreme Court has placed around LGBTQ rights at times contradict but generally show that LGBTQ cannot be fired because of their sexuality but they do not have to be served. The Fairness for All Act would lower these rights to allow religious organizations to not hire or serve individuals based on their sexuality or gender identity, including adoption. Going off the Masterpiece Cakeshop ruling, this Act would most likely be constitutional, but going of last June's decision, this Act would most likely be unconstitutional. The Religious Freedom Restoration Act of 1993 also states that the government cannot burden one's freedom of religion except for a compelling governmental interest and that it is the least restrictive means. Religious groups would argue that their freedom of religion is being burdened through the protections given to LGBTQ individuals, however I would argue that the compelling governmental interest of protecting LGBTQ individuals, who have historically faced violent discrimination, is a justified burden.

What has to be decided is what is more important, an LGBTQ individual’s rights to not be discriminated against, or a religious person’s rights to discriminate against LGBTQ individuals. Personally, I believe that freedom from discrimination on the basis of sexuality should have priority over freedom to discriminate based on religious beliefs. Your own rights of sexuality are more important than another’s right that would directly harm or lower another's well being and place in society. It is hard to say one person's rights are more important than another's and the religious groups in question feel as though they are being discriminated against when they are forced to go against their religious beliefs and serve or hire LGBTQ individuals. It is a matter of which discrimination is more protected by the constitution. The First Amendment clearly states that individual's freedom of religion is protected, but the Ninth Amendment says that there are rights that people have that are not specifically articulated in the constitution. The founders recognized that the constitution could not specifically address all rights and problems that would occur in the future. Further, the 2020 decision states that LGBTQ rights are protected by the Civil Rights Act. Fairness in society is supposed to mean that each person is free from the same obstructions and inhibitions. Discrimination against LGBTQ by the right to not hire or serve obstructs their lives socially and economically. But not allowing someone to discriminate still puts them on the same playing field economically and socially, it does not actively hinder their person in a concrete way in society. If you are deciding between two freedoms and one freedom actively, tangibly hurts a group of people by decreasing their opportunities, while the other does not, the one that does the least harm should be prioritized. Sexuality, just like race, religion, and gender is a protected right, free from discrimination, and this right is a justified burden against free exercise of religion.