All things being equal, equality is a wonderful thing. The Torah mandates that “there shall be one law for you, for the stranger and resident among you” (Vayikra 24:22); nonetheless, there are numerous differences in Jewish law in the rights and privileges of a Jew, a non-resident alien, a man or a woman, a child, a Kohen, Levi or Yisrael. Thus, equal treatment under the law is a goal for which we strive, recognizing that differences will arise in which each of the aforementioned parties is advantaged or disadvantaged depending on the circumstances – and that pure equality exists in mathematics but not in life.
Still, the word and concept “equality” so resonate in the American mind that to question its application is a secular heresy. That “all men are created equal” was true but not entirely true was little noted at the time but troubled the American conscience for a century and to some degree until today as well. But we must be mindful of the pernicious effects of the modern “equality” that has come to us in the form of the “Equality Act,” congressional legislation recently passed in the House of Representatives on an entirely partisan vote. It is denominated HR 5 – i.e., the fifth piece of legislation introduced in the House this year.
What could be wrong with the “equality” that is entertained by the “Equality Act?”
The Equality Act aims to “prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.” It includes all the trendy categories, and focuses on preventing discrimination in employment, housing, public accommodations, and the like, and certainly some of those goals are admirable. But it goes further, “barring discrimination in foster care and adoption,” meaning that an Jewish or Catholic agency, for example, would be precluded from placing children in homes that professed the core values of those faiths. It prohibits any discrimination in any “public gathering,” the ramifications of which will be clear in a moment.
Significantly, and most troubling, Section 1107 of the Act explicitly states: “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.” In plain English, the religious liberties secured pursuant to RFRA are now in clear jeopardy.
Taking all these clauses in composite, and articulating the true intent of the drafters, this statute has several grievous implications for proponents of religious liberty, all people of faith, and the traditions that accompanied the founding of the USA.
For example, under this statute, feminists could sue to abolish the mechitza in shul, as that partition distinguishes between men and women in a place of “public gathering,” and one that receives some government benefits at that. Others might sue to void separate education in our yeshivot, and if you think that can’t happen, think again. The King David High School in Manchester, England, was just downgraded to “inadequate” as an educational institution – even though its student scores are superlative – simply because the authorities have determined that separate boys and girls classes violates England’s Equality law.
Or, what if a same-sex couple demanded the right to conduct their wedding in a synagogue social hall? The statute as written vitiates any notion of religious freedom, making the First Amendment protection of freedom of worship almost a non-entity. A yeshiva would not be able to prevent the hiring of a transgender male as rebbe, and if it denied him (or her) the job, then go fight City Hall. Or the courts. And while you’re at it, try to deny a drag queen the privilege of serving as Chazan for the yamim noraim.
We were once assured that enshrining equality before the law would not prejudice the rights of religious people. That turned out to be a canard, and the only lingering doubt is whether or not proponents of these laws knew from the beginning that they would focus their legal firepower on recalcitrant religions after the passage of those laws. Anyone who thinks this cannot happen with the Equality Act should read about the ongoing, endless saga of Jack Phillips, who is still being sued (now for the third time) for his refusal to create personalized cakes for a variety of couples to whose union he has moral and religious objections. And one should be aware that even the Supreme Court did not narrowly rule in his favor on grounds of his freedom of religion but on his right to free expression. That these consumer-activist demands encroached on his religious liberties was of interest to the majority decision but was not the holding of the court.
Some might say “let them sue,” which is reasonable and even the American way. But even if those plaintiffs sue and lose, the annoyance, expense and consumption of time and energy defending a lawsuit can easily hamstring, derail and in some cases even bankrupt a merchant and certainly a religious institution. We should assume that such lawsuits will be filed in far left states that will automatically rule in favor of the “aggrieved” parties, forcing the defendants into the even greater and debilitating expense of multiple appeals, or the dilution or compromise of their religious values.
None of this is accidental or unknown to proponents of these measures. Their hatred for the religious traditions that proscribe their behaviors is palpable and their desire to impose their values and lifestyles on everyone else – once known as the “majority” – is limitless. Their quest for legitimization demands that the law not only “protect” them but that it also trample on and erode the rights of religious people. Advocates of traditional morality – laws that defined civilization for millennia – are their sworn foes. Any thought, word or deed that disrupts their objectives, enunciates moral verities, or challenges their assertions must be suppressed, and those who utter them must be denounced, ostracized, and then tarred and feathered.
Jews take care never to count people but rather words of a verse, hands or (in Biblical times) shekel coins because to count individuals one, two, three, four implies that we are all the same. But we are not all the same. Each person is unique, and as individuals and not merely as part of a group.
The “Equality Act” transforms religious people into citizens who are less-than-equal, whose moral aspirations must be denounced and whose Bible needs to be amended. The good news is that there is no chance that this bill will pass the Senate or be signed into law by President Trump. But we will rue the day if and when Democrats regain control of Congress and the Presidency, awash as they are in the identity politics that vest all rights in groups but not in individuals.
And not even all groups; people of faith have no standing under this bill. And if it ever passes, America will no longer be the same and we will realize too late the gross inequalities created by this Equality Act.