A growing faction of religious conservatives are planning a bill to establish some LGBT protections at the federal level, defying political orthodoxy and exposing a rift on the right.
Their campaign is growing more urgent as House Democrats prepare to pass the Equality Act later this week, which will be celebrated, at least briefly, as a milestone for the nation’s boldest LGBT rights bill. But in the Republican-controlled Senate, the ride will stop.
This faction of conservatives thinks they can strike a deal.
Despite the rising monolith of religious conservatism against LGBT rights under President Donald Trump, strategists within this movement tell BuzzFeed News they’ve been working with Senate Republicans to introduce a bill this year that would both create new federal LGBT rights and add religious exemptions — an alternative to the Equality Act.
They contend an unwavering war on homosexuality and transgender people is a losing battle. Not only does it distract from religious liberty protections they want to win, but refusing to budge on LGBT rights now could set them back further in the future.
“The culture war approach may not be a good way to protect religious freedom,” said Derek Monson, a Mormon and executive director of the Sutherland Institute, a conservative think tank that backs the compromise.
Citing failed efforts by conservatives to stop same-sex marriage at the Supreme Court, he told BuzzFeed News, “You are at the craps table and hoping you’re not going to hit snake eyes, but you do eventually.”
A grand bargain has critics before a bill is even filed. LGBT advocates call it a nonstarter, while hardline conservatives view pro-LGBT bills as heresy.
The Heritage Foundation, a behemoth policy shop a few blocks from the Capitol building, recently called such concessions by fellow conservatives an attempt at “coercing everyone” and “forcing all Americans to embrace — and live out — certain beliefs about human sexuality.”
“They’re not very happy with me,” Tim Schultz, president of 1st Amendment Partnership, which is quarterbacking a coalition of conservative Christian colleges and evangelical groups on the compromise legislation, told BuzzFeed News. “The reality is that we will be stuck unless we adopt this approach.”
The bill could dictate, for example, that a secular company cannot fire a worker for being gay, but a religious adoption agency or a small bakery could turn him away. Provisions like these could also serve as amendments to the Equality Act itself, softening opposition among moderate Republicans.
This so-called Fairness All approach, which got a major boost on Monday with an endorsement from the Church of Jesus Christ of Latter-day Saints, has been around as a concept for years, particularly since Utah passed a similar law in 2015. Now, however, they’re increasingly confident they can make it work in Congress.
Shultz says the bill’s details are still being written, and he won’t divulge the Republican sponsors in Congress — “I know the answer, I just can’t tell you” — but says it will be filed “this year for sure.”
The broader undercurrent toward compromise on the right is partly generational. One of the leading advocates is the Council of Christian Colleges and Universities, which declined to speak on the record for this article. But its younger constituency is less enthusiastic about culture wars over sexuality and gender. A Pew Research poll in 2014 found that 51% of millennial evangelical Protestants believe “homosexuality should be accepted by society,” with 45% supporting same-sex marriage — putting them 19% and 22% more supportive than their older peers, respectively.
Simply adding religious liberty carveouts to an LGBT bill “don’t turn bad anti-discrimination measures into good law,” Ryan T. Anderson, a senior research fellow at the Heritage Foundation, said in an email to BuzzFeed News. “Compromise can be beneficial, provided it’s a good compromise.”
Anderson was even more acerbic in a recent essay that argues LGBT rights will penalize people of faith, saying the bargain means “one side advances and the other is punished.”
Attacks like these have become familiar to Monson, who said, “You have days when you’re like, ‘Why are they doing that?’ But that’s politics.”
The Equality Act would expand the Civil Rights Act of 1964 to ban discrimination on the basis of sexual orientation and gender identity — leaving little room for moral exemptions.
Even the pro-compromise groups are fighting it to the end. They banded together with the Catholic Church in a May 7 letter to House lawmakers that warned the Equality Act, as is, could cut off grants to religious charities and strip government money from religious schools.
Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance, joined the letter along with the Council of Christian Colleges and Universities and National Association of Evangelicals. And yet all three groups are simultaneously backing a Fairness for All compromise as a concept. (None are making an endorsement on legislation before it is made public.)
Details of the bill are still under wraps, but Carlson-Thies outlined some of what he considers six “win-win” scenarios for a compromise in an essay published in April.
He proposes banning LGBT discrimination in public accommodations, like restaurants, but he asked if “holy spaces” that rent out facilities to the public could refuse to abide by LGBT protections. He also contemplates protecting transgender people who seek health care for the flu, but suggests protecting doctors “who for reasons of religion or conscience are unable to perform sex-change operations or gender identity transition treatments.”
This line of thinking is motivated in part by self-protection, seeking to avoid a court ruling that cuts against the religious right, whether it’s based on current law or an interpretation of the Equality Act. They fear courts may hear another cake shop case and order that stores must sell wedding accessories to gays — religion be damned. They can avoid decisions like those, the thinking goes, by baking moderate exemptions into federal law now.
"I think there would be a long list of court cases as a consequence [of the Equality Act], which is not good for gay claimants who have rights that need to be protected, and it would not be good for religious communities, many of whom I think would win,” Carlson-Thies told BuzzFeed News. “I think about what fairness would look like put into the law. That would avoid the court conflict.”
This is not the preference of entrenched boosters of LGBT rights, either. The Human Rights Campaign, which has marshaled the Equality Act, dismisses religion-friendly compromises as “substandard.”
“They are dangerous,” David Stacy, HRC's director of government affairs, told BuzzFeed News. “Firing a gay worker or refusing medically necessary health care to a transgender person is not religious freedom, it's discrimination.”
The LDS Church’s call for Fairness for All legislation was, by far, the loudest endorsement this week. Church officials told BuzzFeed News they’ve “seen it work well in Utah,” which banned LGBT discrimination in jobs and housing, but allows workers to express views about marriage (this may mean condemning same-sex weddings around the watercooler).
However, the Utah bill never addressed places of public accommodation — like flower shops and restrooms — which is where LGBT people report some of the most blatant discrimination.
Is the LDS Church willing to budge, expanding on the Utah model to deal with bakers and the like? Lance Walker, the church’s director of public affairs in Washington, DC, said in an email, “We believe there is room in federal legislation for reasonable public accommodations, and encourage our Congressional leaders to work together to find an appropriate balance for preserving religious freedom and protecting the rights of LGBT people.”