Why Congress Shouldn’t Interfere with D.C.’s Non-Discrimination Laws

Religious liberty is a core American value on which this country was built—that’s why it’s enshrined in the First Amendment and protected by our Constitution more strongly than in any other country. But freedom means freedom for everyone, so our policymakers must balance the ability of one person to act in accordance with their faith with everyone else’s rights to life, liberty, and the pursuit of happiness. That’s what the duly-elected District of Columbia City Council did when it recently passed two non-discrimination laws, and Congress should reject resolutions to block them.

What the Disapproval Resolutions Would Do

Joint resolutions to dismantle the District of Columbia’s Human Rights Amendment Act and Reproductive Health Non-Discrimination Amendment Act have been introduced in both the House and Senate, with H.J. Res. 44 and 43 sponsored by Reps. Vicky Hartzler (R-MO) and Diane Black (R-TN), respectively, and S.J. Res. 11 and 10 both sponsored by Sen. Ted Cruz (R-TX). These disapproval resolutions seek to turn back the clock—on D.C.’s Human Rights Amendment Act and Reproductive Health Non-Discrimination Amendment Act in particular, and more generally on the progress this country has made over the last 25 years in how we treat LGBT Americans and women’s reproductive health decisions.

• In 1989, Congress decided to amend D.C.’s Human Rights Act to exempt religiously-affiliated schools from the city’s prohibition on discrimination based on sexual orientation or gender identity. After 25 years, the D.C. City Council has now updated that law to remove this exemption through the Human Rights Amendment Act, so that no religiously-affiliated school has to either recognize or fund any LGBT student group, but it may not deny them the use of school facilities or ban them from meeting unofficially on campus. If Congress passed the disapproval resolutions, it would prohibit this change from going into effect and allow religiously-affiliated schools to ban LGBT student groups and forbid them from meeting on campus entirely.¹
• D.C.’s Reproductive Health Non-Discrimination Amendment Act, passed by the City Council in 2014, would prevent all employers from discriminating against employees based on private reproductive choices—including the decision to use birth control, have an abortion, or undergo fertility treatments. This includes not just non-profit employers but also for-profit companies. But if the disapproval resolutions were to pass, employees would not be able to make their own personal reproductive decisions without fear of losing their jobs.²

Why Congress Shouldn’t Pass Them

The D.C. non-discrimination laws represent a common-sense way to balance the religious liberty concerns of universities and employers without infringing on the rights of students and employees. Congress should decline to block them for three reasons: 1) doing so would violate another closely-held American value—the Golden Rule; 2) neither of the D.C. laws require religious organizations or employers to recognize or fund anything against their beliefs; and 3) it would be the first time in more than two decades that Congress has taken such an action.

These resolutions violate the Golden Rule.

As our focus groups have shown time and time again, Americans of all stripes aspire to live their lives by the Golden Rule: treating others as they would like to be treated. Surely that’s a value on which people of all faith persuasions can agree. And that’s exactly what the D.C. laws would do, by giving students the ability to meet unofficially and employees the ability to make their own private health care decisions, without having their actions subject to the control of an institution or their employer.

• The original religiously-affiliated school exemption came about in the 1980s at the behest of Georgetown University—but Georgetown has not heeded recent calls to oppose the Human Rights Amendment Act. That’s because the school was satisfied with the protections granted to it by the court system, which said that the ability to refuse to recognize LGBT-affiliated organizations and to deny them funding—but not ban them completely—is a reasonable balance that respects the rights of everyone involved. In the 1980s, Congress was the only one not satisfied with that balance, so it went a step further, inserting itself in D.C.’s affairs to grant religiously-affiliated schools a much broader right than the one they had requested.
• Religious liberty does not mean that an employer can use his religious beliefs to punish a woman who has had to terminate a pregnancy, or fire a man whose daughter uses birth control, or demote an employee for undergoing in vitro fertilization. Those are private decisions to be made by a woman, her family, and her doctor—and they shouldn’t be made in fear for one’s job. That’s what the Reproductive Health Non-Discrimination Amendment Act protects.

Nobody has to endorse anything that contravenes their beliefs.

The D.C. non-discrimination laws don’t have anything to do with how universities or employers spend their money. If they are enacted, no religiously-affiliated school will have to give a single dime to LGBT student organizations and no employer will be forced to endorse any reproductive decisions in violation of their religious beliefs. Of the 15 co-signers of a letter asking Congress to block these laws, only one is a religiously-affiliated school.³ Do the others just want to be able to fire women who have used birth control? Make sure that their children can go to schools where gay students will be made to feel unwelcome? Religious liberty as we understand it and as Americans value it doesn’t mean using your religious beliefs to control others.

Disapproval resolutions are rare—and should stay that way.

Congress hasn’t passed a disapproval resolution blocking a D.C. law since 1991, and before these were offered, none had even been introduced since 2010. Does Congress really want to step into D.C. law for the first time in 25 years to say that schools can banish student groups simply for “promoting, encouraging, or condoning homosexual acts, lifestyle, orientation, or belief”? Americans’ views towards LGBT people have significantly shifted. Gay couples can marry in D.C. and in 37 states nationwide. In June, the Supreme Court may make that number 50. Under D.C. law, it’s illegal for employers to fire someone for being gay. Congress should not meddle in the city’s business to say it’s okay to fire someone for using birth control, especially since 99% of women—including 98% of Catholic women—have used it.⁴

The District of Columbia may not be a state, but it did elect its local government and it entrusts them to pass laws that balance the needs of all of its citizens—including those who are religious and those who identify as lesbian, gay, bisexual, or transgender. Congress shouldn’t step in just to make a political statement or allow one party to satisfy their base. If a local school or employer doesn’t like the law, they should lobby the D.C. City Council to repeal it. If they think it’s unconstitutional or otherwise forbidden by federal law, they can bring a lawsuit—which given the past court decision on this issue will likely fail. The D.C. Court of Appeals has already spoken on LGBT student groups at religious universities, drawing the line just where the Human Rights Amendment Act would. And the Constitution does not protect an employer’s ability to fire someone because she uses contraception or underwent fertility treatments. Congress should be focused on passing a budget, confirming an Attorney General, and avoiding the next self-inflicted funding cliff—not overriding local decision-makers on local policy.

Conclusion

These disapproval resolutions aren’t about religious liberty—they are about creating a pathway for some to use their beliefs to infringe on the rights of others. Under the D.C. non-discrimination laws, no religiously-affiliated school would have to recognize or fund any LGBT student group, and no employer would have to endorse reproductive health decisions in violation of its beliefs. But if Congress steps in and blocks these laws, schools will be able to ban all LGBT student groups outright—not just refusing to recognize or fund them, but also prohibiting them from meeting unofficially or using school facilities. Employees will not be able to make personal reproductive health choices without fear of losing their jobs. Congress hasn’t exercised its ability to pass a disapproval resolution in almost 25 years, and it should not start with two laws that balance the needs of the community in such a reasonable and common-sense way.