Religious-Liberty-Annual-Report

III – Religious Liberty and Congress 13

ploy otherwise available federal funds if it declines to perform or refer for such a procedure. 2. FACE Act Repeal The Freedom of Access to Clinic Entrances Act, or FACE Act, is a 1994 law that criminalizes 1) certain kinds of interference with access to re productive health services or churches, and 2) in tentional damage to the property of reproductive health clinics or churches. 5 The term “reproductive health” has long been understood to refer to abor tion clinics, although it can also apply to pro-life pregnancy resource centers. Historically, the FACE Act has been used al most exclusively to protect abortion clinics and has never been used to protect a church. Certainly, some prosecutions under the FACE Act have been just — for arson or for bomb threats, for example — but in other cases the penalties have seemed disproportionate to the conduct in question — for example, peacefully sitting and praying in front of the doors of an abortion clinic. The lopsided enforcement of the FACE Act has long been noted but received renewed atten tion in 2023, as increasing attacks on pro-life preg nancy resource centers went largely unpunished, while some actions brought against protesters out side abortion clinics seemed unjustifiably severe. 6 During appearances on Capitol Hill, Attorney General Merrick Garland and FBI Director Chris topher Wray drew the ire of congressional Repub licans, who have been especially incensed by the case of Mark Houck, whose house was raided by the FBI after he got into a physical altercation with an abortion clinic staffer whom, Houck claims, was The lopsided enforcement of the FACE Act has long been noted but received renewed attention in 2023, as increasing attacks on pro-life pregnancy resource centers went largely unpunished, while some actions brought against protesters outside abortion clinics seemed unjustifiably severe.

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transition surgery.” In 2020, the Supreme Court ruled in Bostock v. Clayton County that the sex dis crimination provisions of Title VII apply to “sex ual orientation” and “transgender status,” but left many questions unanswered. 3 In fact, that year’s House Judiciary Committee report on H.J. Res. 79, a resolution purporting to remove the ERA’s rat ification deadline, stated “the ERA’s prohibition against discrimination ‘on account of sex’ could be interpreted to prohibit discrimination on the basis of ‘sexual orientation or gender identity.’” 4 These claims heightened the concern about a fed eral constitutional provision that, in broad fashion, would have purported to forbid the abridgement of rights based on sex. The consequences could have reached how Americans must treat and speak about gender in public schools at every level, hos pitals, government workplaces, social welfare agen cies, and more. In particular, the ERA would have likely ham pered the ability of churches and other faith-based organizations to obtain and utilize conscience pro tections whenever there is a claimed conflict with the sexual nondiscrimination norms that the ERA would have adopted. The ERA could have likewise made it more difficult for faith-based organiza tions to compete on a level playing field with secu lar organizations in qualifying for public resources to provide needed social services. For example, the government could have argued that a decision not to perform an abortion or gender-related surgery is constitutionally prohibited sex discrimination, so that a health care provider is ineligible to em