The Unfairness of the Misnamed ‘Fairness For All’ Act

Aug 7, 2020 by

by Ryan T Anderson and Robert P George, SSRN:


Intransigence is a vice, but there is no virtue in accepting bad compromises. The “Fairness for All” legislation is a bad compromise — and as a result, would be a misguided response to the Supreme Court’s Bostock decision. To show this is not to question the good faith of the bill’s advocates, with whom we have been in friendly dialogue for years. It’s merely to note that despite the undoubted goodwill of the bill’s proponents (and despite its name), the bill is grievously unfair. Its protections for religious liberty are insufficient. And they come at the price of legally enshrining a misguided sexual and gender ideology — which would license officials to punish citizens who dissent from secular progressive orthodoxy.

These costs are unsurprising: from the start, the compromise sought was misframed in two ways.

First, there was a woeful mismatch in ambitions: The “conservative” side failed even to seek protections for many crucial interests apart from religious liberty that are imperiled by the bill’s antidiscrimination component. As Stewart and Schaerr stress, FFA is narrowly focused on “religious liberty and LGBTQ rights” as the result of “negotiations between conservative religious groups and LGBTQ rights groups” designed to protect “their core interests.” But religious freedom isn’t the only interest here. What about women’s and girls’ privacy, safety, and equality, or the wellbeing of children with gender dysphoria? FFA’s approach is narrow and selective. A sound approach would be inclusive and holistic, considering all of the interests and people who would be harmed by the proposed changes to civil rights law.

Second, while the compromise purports to allow both sides to “live and let live,” it does not and could not do that, because only one side of the deal involves a form of legal freedom; the other side involves a form of legal coercion. By definition, antidiscrimination laws coerce some citizens on behalf of others—whereas religious liberty limits government to protect the personal freedom of all. Antidiscrimination policies—sometimes justifiably, to be sure—use legal force to make some people, in some domains, live by the majority’s values; religious liberty protects everyone’s interest in living by his or her own convictions. Pairing a coercive norm with a liberty exception is not live and let live. A true live-and-let-live approach would leave LGBTQ-identifying people free to live by their beliefs, but not “free” to use legal mechanisms to force others to act as if they shared those beliefs.

Elevating “sexual orientation and gender identity” to a protected class in the Civil Rights Act isn’t about “live and let live” at all. It’s about legally enforcing new norms of sexuality nationwide, with limited “spaces” of freedom for some religious actors. FFA effectively helps brand alternatives to the favored ideology as bigotry while carving out a limited “right to discriminate” for some “bigots.” This will do harm that Stewart and Schaerr fail to grapple with — harm to people’s privacy, safety, equality, and physical and mental wellbeing, along with forms of liberty — not just for believers, but for all dissenters from progressive gender ideology.

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