The Equality Act is a direct attack on religious liberty.

The legislation, now working its way through the House, stands little chance of becoming law, but if passed, it would amend elements of the Civil Rights Act to include “sex (including sexual orientation and gender identity)” as a protected legal class, alongside race, color, religion, or national origin. This would apply to discrimination in public accommodations, public facilities, employment, housing, education, and lending.

In some ways, this seems like the argument captured by the bill’s title. I cannot imagine there are many people–though I may be wrong–who root for fellow citizens to be denied opportunities to pursue an education, their preferred occupation, or the bliss of domesticity. The difficulty lies in how the bill handles potential conflicts. Title VII of the Civil Rights Act, for example, has exemptions in place for religious organizations. The Equality Act has none, and it hollows out a federal law designed to protect religious individuals and groups.

The Religious Freedom Restoration Act (RFRA) became law in 1993, a time of Democratic control in Washington, D.C. Massive majorities in both chambers approved it; the Senate passed it 97-3. It was signed by Bill Clinton. RFRA is a simple law with sharp teeth. According to the act, any federal law that substantially infringes on religious liberty must a) be supported by a compelling government interest, and b) infringe on those liberties in the least restrictive way possible. Effectively, RFRA shackles Congress and the Executive as they legislate and implement laws by shielding religious interests.

RFRA was key when Hobby Lobby sued the government for interpreting the Affordable Care Act to require the corporation to provide contraceptives to employees even though some of those mandated ran afoul of the company’s religious sensibilities. Citing RFRA, the Supreme Court determined that even if providing contraception was a compelling government interest, there were many ways this could be done without violating the religious beliefs critical to the family that formed and ran Hobby Lobby.

The Equality Act, if it becomes law, will create a host of these kinds of conflicts. Will religious schools be able to hire and fire based on their own theological commitments regarding sexuality, marriage, and the family? Will a religious t-shirt vendor be able to refuse service to a client who wants to print and sell products that promote the LGBTQ+ agenda? Will religious doctors and nurses be accused of discrimination if they refuse to carry out transition surgeries? Will the refusal to perform an abortion be used to strip the license of a physician due to sex discrimination against women?

With protections like RFRA in place, it is easy to see how such conflicts could be managed. It would be long, tedious, and costly, and we might even disagree with some of the outcomes, but the Equality Act, with RFRA as a guard, might allow for some accommodations to be reached. This is not ideal, and the Equality Act would still be concerning, but RFRA would most likely minimize possible harms to religious liberty.

The Equality Act, instead of embracing this approach, 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 essence, the Equality Act doesn’t just file down RFRA’s fangs–it yanks them out entirely. RFRA would not apply to any of these issues. Even if the Act passed in this form, the Constitution still stands as a safeguard. The First Amendment’s Free Exercise Clause protects religious individuals and entities as they turn their beliefs into action, and the Supreme Court would have to decide how rights are handled in light of the sweeping changes ushered in by the Equality Act.

Some will argue that at the end of the process, what is the difference? The Supreme Court will have to adjudicate either way, relying on the First Amendment or RFRA. The difference is that RFRA applies a particular standard to the conflicts. Religious liberties are privileged by RFRA, and the government will have a tough time justifying significant burdens. Without RFRA, the Supreme Court could gravitate toward a variety of constitutional standards–some of which would advantage the LGBTQ+ community.

The Smith standard is one possibility. In that case, the Court decided that state drug laws, even if they limited religious ceremonies for Native Americans, were constitutional so long as the laws were “religiously neutral” and “generally applicable.” Using this reasoning, the Equality Act could be used against religious individuals as long as there was no evidence of an anti-religious bias in the creation and implementation of the law. So, Jack Phillips, the famous Colorado baker, might be compelled to bake the cake or suffer the consequences.

I think it is unlikely the Court embraces the Smith standard, but I would not rule it out, at least as it relates to individuals and businesses. I think it is far less likely the Court would take that approach with expressly religious organizations and entities. Churches, schools, and affiliated groups with explicitly religious missions and purposes, would likely have greater protection. In Morrissey-Berru, decided just last year, the Court, by a 7-2 vote, determined that religious schools had wide latitude, under the “ministerial exception,” to hire and fire employees according to their own understanding of their faith and doctrine. In fact, it is possible we will see the Court embrace both standards simultaneously. The result would be favorable to the LGBTQ+ community when it comes to public accommodations, while still robustly protecting religious organizations as they set their own employment, admissions, and behavioral standards.

The Equality Act will likely fall in the United States Senate. Unless Democrats are willing to end the legislative filibuster, they will need 60 votes to pass the legislation. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have insisted they will not end the filibuster, and getting to 60 votes feels fanciful. Mitt Romney (R-UT) and Susan Collins (R-ME) have already expressed their reservations on religious grounds.

Even if the Equality Act falters for now, the cultural tides cannot be turned back for long. Something like it will pass through Congress, probably within the next 5 years. The precise nature of the bill, and the make-up of the Supreme Court, will determine the depth of the conflict that will unfold.