Supreme Court's LGBT Discrimination Decision Revives Interest in the Federal Equality Act

The Equality Act would significantly expand government power and it also threatens religious freedom.


Monday's Supreme Court ruling banning workplace discrimination against gay and transgender employees focused on Title VII of the Civil Rights Act of 1964.

But the textualist justification offered in Justice Neil Gorsuch's majority opinion in Bostock v. Clayton County—that discrimination on the basis of sexual orientation or gender identity is fundamentally "sex discrimination"—will almost certainly be applied to many other federal statutes and regulations. In his Bostock dissent, Justice Samuel Alito attached a list of dozens of other federal statutes that prohibit sex discrimination, all of which will now likely be subject to new review. Writing at The Volokh Conspiracy, Southern Methodist University law professor Dale Carpenter dubbed those federal statutes a "to-do list for Lambda Legal."

Some lawmakers hope to avoid using the courts to resolve every conflict over such laws by enacting the Equality Act, which made it through the House of Representatives last summer, but currently remains in limbo in the Republican-controlled Senate.

Otherwise known as H.R. 5, the Equality Act would do legislatively for multiple federal statutes what the Supreme Court did via legal interpretation for Title VII—include sexual orientation and gender identity in the category of sex discrimination. The bill would apply to other sections of the 1964 Civil Rights Act, to the Fair Housing Act, to the Equal Credit Opportunity Act, and to federal protections against sex discrimination in jury service.

After yesterday's ruling, a number of activist organizations and lawmakers who support the Equality Act renewed their campaign for the bill's passage.

"Right now, millions of LGBTQ people can still legally be denied access to housing, education, federal funding, public accommodations, credit, and the opportunity to serve on a jury," wrote Rep. David Cicilline (D–Rhode Island). He first introduced the Equality Act in the House.

"The House passed the Equality Act last year to prohibit these forms of discrimination. The bill has been sitting on Mitch McConnell's desk since then. In the wake of this momentous decision, he should finally allow the Senate to vote on the Equality Act," Cicilline declared.

In reality, McConnell was probably doing Cicilline a favor by keeping it from a vote. In the House, only eight Republicans voted for the act. It seems unlikely to pass the Senate.

The Equality Act doesn't just expand the categories of people covered by federal anti-discrimination law. The Equality Act significantly expands on the sort of discrimination that federal authorities can punish.

For example, the federal protections against discrimination in places of public accommodation contained in the 1964 Civil Rights Act were carefully tailored to cover businesses and services that, at the time, were systematically discriminating against minorities, such as hotels, restaurants, entertainment venues, and gas stations. The law was not designed to empower the Department of Justice to respond to every incident in which a business allegedly discriminated against somebody.

The Equality Act seeks to go far beyond that 1964 law, prohibiting discrimination in "any establishment that provides a good, service, or program, including a store, shopping center, online retailer or service provider, salon, bank, gas station, food bank, service or care center, shelter, travel agency, or funeral parlor, or establishment that provides health care, accounting, or legal services," as well as any transportation service. In effect, the Equality Act treats vast amounts of commerce and trade as public accommodations and subjects that commerce and trade to sweeping federal law.

To be clear, the Equality Act is not just about LGBT discrimination. It is a power grab that would give the Justice Department new latitude to intervene in all sorts of cases, even in states where equally broad public accommodation laws are on the books. It's practically a jobs program for federal prosecutors.

The Equality Act also forbids businesses from using the Religious Freedom Restoration Act of 1993 as a defense. In other words, if the bill is passed, and a gay person wants to buy a same-sex wedding cake from a religious baker that doesn't want to bake it for him, the message is clear: Bake the damn cake or the feds may come calling.

I don't dismiss the fact that such discrimination is happening to some gay people. But this is not the 1960s. If you're a gay couple getting married, somebody else will bake the damned cake for you and will be happy to take your money.

Rep. Justin Amash (L–Mich.), who tweeted positively about the Supreme Court's Bostock decision this week, voted against the Equality Act last year. He explained that he objected to the broadness and vagueness of the law and said the text "raised First Amendment problems." He added that was not opposed to LGBT equality or adding LGBT people to existing civil rights law.

There is a competing bill introduced by Republicans that would add LGBT protections to federal anti-discrimination law while preserving exemptions for religious organizations and certain small businesses whose owners are religious. The Fairness for All Act is a very good piece of compromise legislation that will likely go nowhere because nobody is going to be running for election in 2020 promising any compromises. The bill, introduced by Rep. Chris Stewart (R–Utah), has been attacked by social conservatives for going too far and by gay groups for not going far enough.

America's shifting culture significantly favors gay and transgender inclusion more and more each passing day. There is no real need to create additional punitive mechanisms to prevent discrimination when we have so many other ways to create change. People who truly support scaling back the power and scope of punitive government should consider the idea that even on this issue, there's no need to introduce new ways to punish Americans.

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  1. What is going to happen is the liberals will hold women’s sports hostage to get this nonsense. Without some action by congress, women’s sports is done as it will be overrun by men pretending to be women. But to get that done, the Democrats will want this long list of goodies.

    1. Women can play sports?

      1. they’re so much better at other stuff.

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      2. Apparently, although not very well if a man can chop his wang off, take hormones for a few months and then dominate in “women’s” sports.

    2. But I don’t think that the Ts will tolerate their exclusion from women’s sports — and how much support is there for Women’s Sports outside the Dems anyway?

      1. Women’s Tennis and Golf are very popular. Beyond those two, nothing really.

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      2. As actual biological females are displaced from the feminists’ beloved US Women’s Soccer Team in favor of transgenders, this could become a major battle between feminist activists and transgender activists. We’re getting close to the point where any underemployed male former college varsity soccer players can stick barrettes in their hair, call themselves women, and replace each and every single member of the team. They won’t even need to undergo any kind of surgery or hormone therapy as that would constitute discrimination as defined by both feminist and transgender activist. This is going to get very interesting until we can come to accept that transgender women are not biological women and formulate public policy accordingly.

        1. This is going to get very interesting until we can come to accept that transgender women are not biological women and formulate public policy accordingly.

          It really is astounding how successful capitalism is. I mean, sure some of what we’re running on is the illusion of solvancy as covered by social(ist) money manipulation but still; in leaner economies and worse conditions such idiocy would’ve gotten more people killed.

          Can you imagine a tribe of Native Americans, Africans, or even Colonial settlers debating whether trans women were women while revolutionaries among them set up an autonomous zone? If they didn’t collapse of their own accord, outside forces would’ve swooped in to crush them long ago.

  2. >>while preserving exemptions for religious organizations and certain small businesses whose owners are religious

    give up the ghost. and private enterprise.

  3. It’s practically a jobs program for federal prosecutors.

    Couldn’t that describe most federal laws?

  4. Breaking:

    The Mayor of Seattle, Jenny Durkan has announced that to protect the Capitol Hill Autonomous Zone, AKA “CHAZ”, now officially called “CHOP” by the city (Capitol Hill Organized Protest) they will erect stronger, concrete border walls to protect public safety.

    Every day, Seattle Fire Chief Harold Scoggins, Seattle Department of Transportation Director Sam Zimbabwe, and Seattle Public Utilities General Manager Mami Hara have been on site. On Sunday, they  held a meeting with onsite organizers, small businesses, and residents to discuss proposed changes to the protest zone. In coordination with protesters onsite, work began at 6:30 a.m. on Tuesday to remove a tent barrier at 10th and Pine and replace it with a sturdier concrete barrier to improve public safety. The City has successfully worked with protesters onsite to reconfigure the CHOP to allow for public safety and better access for the local community. That has involved rerouting traffic, freeing up alley access, opened streets, and replacing makeshift barriers with heavy concrete barriers that can be painted.   

    FYI, Sam Zimbabwe is the whitest man you could imagine, but he changed his name for Virtue Signaling optics, which is why he was a top pick for the job.

    Also, the graffiti is now protected as an BLM Artistic heritage site:

    The area adjacent to Cal Anderson park on Pine between 10th and 11th will remain closed. This street is now home to the Black Lives Matter street art.

    No, this isn’t a Breitbart article, this is directly from the office of the mayor.

    1. Sam Zimbabwe’s fan page.

      This is some next-level-i’m-not-making-this-shit-up stuff.

      1. From Washington to Washington. How oddly poetic.

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      2. I assume his original name was Rhodesia?

    2. Over the last two weeks, Mayor Durkan has prioritized meeting with community leaders and demonstration organizers, heard their concerns, and is committed to enduring systemic changes to reimagine what policing looks like in Seattle and to addressing systemic racism

      Systemic Racism… that’s you baby. You runnin’ things. So you’re the systemic racist. I love how blue city leadership falls all over itself to call itself racist, but won’t give up one iota of power.

    3. In other news, lawyers at the Children’s Hospital of Philadelphia announce that they are prepared to file a trademark infringement suit to protect their valuable intellectual property.

    4. So basically this is an autogolpe?

    5. I’m beginning to get the impression that if I walked into the autonomous zone, shot a couple people and blew something up, I wouldn’t be evading their jurisdiction simply by crossing back over the other side of the barricade. Almost like they’re not really autonomous and have an implicit pact with the regional leadership.

  5. Just for the entertainment value, I am ready to fund Neo-nazi groups who are willing to shop at feminist book stores, hang out at transgender coffee shops, and sign up for afro culture arts classes at the community college.

    Or do I misunderstand equality?

    1. As the leftists define and understand it, yes.

  6. I keep reading the constitution over and over again and I don’t see anywhere that gives the federal government the authority to interfere with private choices that others make with regard to discrimination or not.

    but… if there IS going to be laws that dictate the rules of private discrimination, it’s not the end of the world to include gays in the mix.

    so… [shrug]. end all the discrimination laws entirely, that’s the true answer to this. But that will never happen.

    1. Come on. The only way to end sexism and racism is to mandate carefully controlled sexism and racism.

      1. “Government’s view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.” – Ronald Reagan

        So I guess at this point when it comes to sexism and racism we’re onto phase two: regulate it. I guess eventually they’ll start subsidizing it but they’re probably already doing that too.

      2. Mostly for the slow rednecks who concentrate in the south. They could lift a finger trying not to be paranoid retrograde assholes and then we wouldn’t need the laws.

    2. This is the result of the SC’s abysmal Commerce Clause jurisprudence over the past century. They say so, so all of this stuff is “in the Constitution (emanations and penumbras and all).

    3. but… if there IS going to be laws that dictate the rules of private discrimination, it’s not the end of the world to include gays in the mix.

      but… if there IS going to be laws to dictate the rules of private discrimination, it’s not the end of the world to include child molesters in the mix.

      but… if there IS going to be laws to dictate the rules of private discrimination, it’s not the end of the world to include smokers in the mix.

      but… if there IS going to be laws to dictate the rules of private discrimination, it’s not the end of the world to include the left handed in the mix.

      We can’t skim the cream off the top but… if there is going to be scraping, we might as well scrape the bottom of the barrel.

  7. People who truly support scaling back the power and scope of punitive government should consider the idea that even on this issue, there’s no need to introduce new ways to punish Americans.

    Unfortunately a lot of people don’t see it that way. They view the coercive power of the state as a tool to punish their political enemies or “others” and they really don’t give a damn about who gets caught in the crossfire. At least not until a cop kneels on someone’s neck for 9 minutes, then they pretend to care in order to make themselves feel better.

    1. And of course the solution is to further increase the coercive power of the state….Definition of insanity?

  8. Up next is the some rights are more equal than others act

    1. Quit whining.

  9. he Supreme Court mostly decides issues and disputes by assigning interpretations of the constitution, laws, and previous Supreme court decisions to situations not at all imagined by the authors of the constitution and laws. A 5-4 or even a 6-3 decision reflects the philosophical disposition of the 9 persons sitting on the court at that time. The stability of our government rests on the acceptance of the authority of 9 selected persons to make these often seeming arbitrary decisions, sometimes by a 5-4 vote

    I suspect the three dissenting judges believe that employers should not be able to fire employees who are LGBT. However, they think it is more important that the Congress explicitly grant such protection

  10. so we limit an actual right (religious liberty)…impose a taking… and call it moral

    1. Religious liberty is a euphemism for bigotry and discrimination and everyone knows it and this article should be ashamed of itself for using it.

      Making laws against theft curbs the liberty of thieves. It’s just how civilization has always worked.

      1. Nice strawman/false equivalence.

      2. Religious liberty is a euphemism for bigotry and discrimination and everyone knows it and this article should be ashamed of itself for using it.

        Religious liberty and/or the respect for it is what keeps more savage zealots from hunting you down and throwing you off a rooftop. Like it to an etiquette that only stupid peope engage in and don’t be surprised if you get tossed off a roof.

        Hang or chop the hands off of thieves, drag homosexuals to death behind horses. It’s just how civilization has always worked.

  11. Apparently, Amash does not have the imagination to see that Bostock is potentially as dangerous to religious liberty and other individual rights as the Equality Act. In fact, it may be worse, since it left all the cans of worms the decision opened on the new contradictions between Title VII and Title IX and RFRA to future court decisions which means know one knows what the rules really are.

  12. Poor Carrie Severino, Poor Federalist Society, Poor Heritage Foundation, poor social conservatives . . . they spent tens of millions of dollars on right-wingers for the Supreme Court and all they got was yet another box of “loser and bigot” t-shirts.

  13. there’s no need to introduce new ways to punish Americans.

    So, no new laws? Inconceivable!

  14. So i found taht the delhi court has too be very tough while taking decisions check here

  15. “any establishment that provides a good, service, or program”

    This reads like it would include religious institutions & private clubs.

  16. It’s appropriate to ban discrimination in government, including government agencies that license businesses where licensing is required (but shouldn’t be). But, it is not appropriate to ban discrimination in private businesses, even though the ban produced some good effects in the early years of the civil rights movement.

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