At a speech to gay activists in Ohio last weekend, presidential candidate Joe Biden declared that the Equality Act would be “the first thing I ask to be done” upon his election as president.
Despite its anodyne name and generic promotion by the LGBT community, the Equality Act is not a simple ban on discrimination against gays. There was a bill that did that — the Employment Non-Discrimination Act (ENDA) — which passed the House in 2007 and the Senate in 2013, but it never passed both houses in the same year.
Surveys have shown wide public support for a bill embodying the basic principle of ENDA — that it’s wrong to fire someone for who they are.
That’s not this bill. (RELATED: Joe Biden’s Climate Plan Uses Nearly Identical Language As Other Sources)
The Equality Act is a complex set of amendments to current civil rights law, not only adding the protected class of sexual orientation and gender identity, but also many categories of prohibited discrimination that previously were not covered under civil rights law even for race or religion, such as gas stations and funeral parlors.
And it’s filled with Easter eggs that may please various parts of the liberal coalition, but that would radically change American life in ways that have never been debated.
Given Vice President Biden’s moderate reputation, it’s unclear that he has even read the bill, particularly since he has promoted it as if it were just ENDA under a new name.
So here are three questions for Biden regarding just a sampling of the bill’s problems completely unrelated to gender identity or sexual orientation:
1) How is a restaurant supposed to prevent customers from making advances on each other?
The following appears in a fact sheet from the Human Rights Campaign, the Equality Act’s main backer:
“Under current federal law, women who experience harassment on public transportation or at stores or restaurants do not have a remedy. Under the Equality Act, providers of these goods and services would have an obligation to prevent and address sexual harassment.”
How is that going to work? Men hit on women all the time, and the interest is often reciprocated. But sometimes women are uninterested, and “unwanted sexual advances” is one of the categories defined as sexual harassment.
Within a workplace, managers can and do implement rules that employees cannot make ANY advances on their underlings or even similarly ranked colleagues.
But what policy is a bar, for instance, going to design that will “prevent and address” unwanted sexual advances? Many people go to bars hoping for sexual advances, after all. Should there be mandatory “how to know if she’s interested” training before people are allowed through the door?
Because under the Equality Act, if a woman feels harassed on a train or in a store or at a restaurant, she can sue for damages.
How is the fear of such legislation going to affect the American economy, Vice President Biden? Have you thought that through? (RELATED: Here’s How Trump Can Beat Joe Biden)
2) Why can’t a religious business restrict religiously oriented services to members of its religion?
It’s already illegal to refuse to hire Mormons or rent to Jews. But the Equality Act adds more than two dozen new categories in which religious businesses cannot favor members of their religion.
One of the categories is food banks.
Currently, many kosher food banks give priority to Jewish clients or serve them exclusively. Their donors are mostly Jewish and their mission is largely to make sure that poor Jews who want to follow the Torah’s dietary laws can do so. (Cleveland’s Kosher Food Pantry’s slogan is “Let My People Eat.”) Some kosher food banks, such as one in South Florida, make feeding kosher food to Holocaust survivors a priority. If the Equality Act passes, those victims of the Nazis will have no choice but to get in line with everyone else, with food distributed either on a first-come, first-served basis or via a lottery.
Another is travel agencies.
Many Mormon travel agencies include stops at Mormon Temples. In the Mormon religion, members of other faiths or no faith are not allowed to enter a Mormon Temple, and in fact even Mormons must show “testimony in the principles of the Church of Jesus Christ of Latter-day Saints … to partake in the ordinances of the temple.”
If the Equality Act forces Mormon tour groups to accept non-Mormons, the Mormon faith will be forced to abandon a key tenet — which it’s not going to do — or itineraries will have to exclude some of the very sites Mormon tourists are most interested in visiting.
Finally, online service providers.
Many dating apps are exclusive to members of one religion, with a core religious mission. For example, CatholicSingles says on its Web site that “all of our efforts revolve around creating an environment that fosters our values as Catholics.”
Based on precedent, an Equality Act would likely shut down all those sites. Under New Jersey’s “Law Against Discrimination,” the New Jersey Division of Civil Rights forced the Christian dating service eHarmony to create a separate same-sex dating site in 2008 — and after a second lawsuit in California in 2010, it had to merge both sites together.
What of it, Vice President Biden? You have a problem with kosher food banks, Mormon biking tours, and Catholic dating apps?
3) Is non-discrimination more important than free expression?
The bill prohibits discrimination in any “establishment that provides exhibition, entertainment, exercise, amusement, public gathering, or public display.”
Several of those provisions raise serious First Amendment concerns. The Supreme Court ruled unanimously in 1995 that private organizations have a free speech right under the Constitution to exclude groups whose presence would be contrary to their message.
The Equality Act begs to differ. Upon its passage, a dozen African-Americans protesting police brutality would not be able to turn away fifty white cops who wanted to join, and undermine, their demonstration. A women’s march could not exclude men even if that would obviate the point of the demonstration.
The prohibition of discrimination in “public display” is particularly radical. Billboards; ads in subways and bus shelters; and stadium video ads would face government censorship if their content did not check the right non-discrimination boxes.
The Equality Act would create a fear of suppression for saying the wrong thing that has not existed in America since the McCarthy Era.
Under a Biden presidency, would the Office of Civil Rights target people who express supposedly discriminatory ideas, regardless of whether they act on them? (RELATED: Biden: ‘I Think I’m The Most Qualified To Be President’)
Joe Biden has not addressed any of these “hidden” provisions of the Equality Act, which are in fact plain to those who read it. If he supports all of them, he can answer the questions above so Americans can understand the content of his top priority. But if his only goal is to keep gay and trans Americans from losing their jobs for being LGBT, he should drop his support for this bill and call for a revival of ENDA.