Balance and fairness for all, not a war between absolutes, is a more sure way for our pluralistic democracy.
Last week's passage of groundbreaking legislation in Utah that combines protections for religious expression and exercise while also protecting discrimination against LGBT people in housing and employment has sparked a national debate.
While being widely praised as a potential pathway for other states in a years-long and intractable culture war, it has also been criticized by some on the Left and Right, as was the case in a recent opinion column in The Christian Post by Dr. Russell Moore and Andrew Walker titled, "Is Utah's Religious Liberty Bill Good Policy?"
Some LGBT advocates complain that the "Utah compromise" gives too much to religion and not nearly enough to gay rights. Some conservatives, such as Moore and Walker, assert that it doesn't protect individual religious expression sufficiently. On Monday this week, two mixed panels of subject experts explored the subject in depth and in a mutually respectful way at a Washington, D.C., think tank with much talk about a middle ground.
Nothing could better illustrate the need for finding a way forward that provides fairness for everyone than this instant reaction of views across the spectrum. Indeed, the Utah initiative arose largely because of the failure in state after state to pass religious freedom protections because they are almost always perceived as attacks on the LGBT community, while LGBT efforts meet fierce resistance from faith groups who fear their consciences are being abridged.
At the outset, it is important that we acknowledge a series of facts. Traditional sexual morality no longer commands majority support in our nation. High rates of divorce and cohabitation, and broad acceptance of both heterosexual and homosexual relationships outside traditional marriage bear this out. Supported by the media and academia, significant majorities view sexuality is a private matter that should be beyond the reach of government regulation and cultural influence. At least half the country supports same-sex marriage. And large majorities, recognizing a real human need and a long history of harsh treatment, believe discrimination against LGBT persons is wrong.
Consequently, the issue in the present environment is not whether supporters of traditional morality can use the law to roll back the sexual revolution, but whether they can find ways to respectfully coexist with LGBT citizens despite profound differences regarding marriage, sexuality, and gender. If churches fail to find a balance that the majority of ordinary people feel is fundamentally fair, they must face losing religious freedoms and being overwhelmed by laws enforcing cultural norms and political correctness that they fundamentally oppose.
Dr. Moore, President of the Southern Baptist Convention's Ethics & Religious Liberty Commission, is a powerful voice for religious liberty. He argues that support by The Church of Jesus Christ of Latter-day Saints for the Utah legislation is a mistake because the bills do not go far enough in protecting religious liberty and undermine traditional Christian beliefs on sexuality and marriage. Further, he believes that the Utah nondiscrimination bill will harm other areas of the law and culture by turning LGBT persons into a specially protected class.
Yet, as he acknowledges, the nondiscrimination bill plainly states that it does not create a protected class outside the employment and housing contexts. Will lawless judges ignore this limitation anyway? Not likely. Utah has excellent judges that carefully apply the law. And if, hypothetically, Utah judges were inclined to just legislate from the bench, they would hardly need this bill as an excuse to declare LGBT persons a suspect class for all purposes.
The more important argument is what the United States Supreme Court will do in this area. In the past, when the Supreme Court has recognized suspect classifications it has primarily done so because it has concluded that a specific class of persons is unable to secure basic protections for itself due to the prevailing views of society. Thus, the Court's assistance was necessary because the political process was unable to provide these basic protections. The Utah legislation and its fairness-for-all approach which I was proud to sponsor, does exactly the opposite – it shows that people of good will can come together to secure these basic protections. If anything, Utah's legislation makes it less likely that the Supreme Court will conclude that broad suspect-class protections are needed to protect basic LGBT rights.
Nor does legally protecting LGBT persons endorse or promote their sexual lifestyle. Utah's legislation simply recognizes that there are some rights that should be available to all – the right to have a job and a place to live. This is fundamental to understanding why a majority of legislators in Utah, who belong to the LDS faith, voted for the legislation. They could not conceive of Jesus Christ denying shelter or work opportunities for anyone, gay or not. For those of us who believe so strongly in traditional morality, surely we can maintain that message without denying LGBT people employment and a roof over their heads?
So does the Utah legislation get the balance right? Here are the facts:
- Churches, religious schools, and religious affiliates. Religious organizations and religious schools—whether affiliated with a formal religious organization or independent—are exempt from the law. No balancing test. No legal uncertainty. Totally exempt.
- Religious expression by employees. In a dangerous trend, religious employees are increasingly being terminated for expressing their Christian beliefs about marriage, family, and sexuality. Sometimes the termination is even based on beliefs expressed outside the workplace. The Utah bill bars that practice.
- Expressive associations. The bill explicitly reaffirms the constitutional rights of expressive associations that do not qualify as full religious organizations. If hiring an LGBT person would significantly interfere with the association's message, the nondiscrimination principles must yield in favor of expressive rights.
- Boy Scouts. For nearly 15 years, intolerant forces have relentlessly targeted the BSA, seeking to punish it for its traditional morality. The Utah bill expressly protects the BSA and its local councils.
- Family businesses. Businesses with fewer than 15 employees have total discretion to make hiring decisions based on religious or other deeply held values. Here in Utah, family oriented businesses—where religious values are often passed down to children—tend to fall under that threshold. Dr. Moore claims the 15-employee threshold for businesses is arbitrarily low. But a line has to be drawn somewhere. In three years of discussing and debating versions of this bill, there has been no request by larger Utah businesses for broader exemptions. But what about the Christian-owned t-shirt maker with 17 employees? Moore also claims that under the Utah bill this small business would have "to print speech that its owners find morally compromising." Not so. Those situations arise under public accommodations laws, and Utah has not added sexual orientation, gender identity, or any other category to its public accommodations laws that might arguably coerce such a result. Nothing in the bill changes that.
I am not a spokesman for The Church of Jesus Christ of Latter-day Saints, although I am a member of it and there is no question that it remains firmly committed to the traditional Christian teaching that sexual relations should occur only within lawful marriage between a man and a woman. I cannot imagine that will change. But the Church is also committed to fairness for all, including our LGBT brothers and sisters. For the sake of religious liberty and basic fairness, we must find a way to live together respectfully. The Utah bill is a great start.