I want to be as supportive of the new Mormon position on anti-gay discrimination as possible. Their leadership has agreed to support legislation that protects against housing and employment discrimination, as long as it includes religious liberty protection as well. This is a major announcement from a major religion that has spent a lot of time and capital fighting against our equality in the civil sector. I am grateful that they took this bold step.
Unfortunately, I think it’s a bad deal. Not for the reasons the Human Rights Campaign articulates, though. They are concerned that the religious freedom protections would serve as a loophole. I can’t argue with that, and I have a lot fewer problems with it than HRC does.
For me, the problem with the deal is what church leadership is willing to fight for. Nearly all of the problems we have had with religious liberty over the last couple of decades have been due to the anti-discrimination laws the church now finds worthwhile. HRC has illustrated exactly why that continues to be the problem.
The one thing the church leaves off the table is support for civil marriage equality. Virtually all of the lawsuits, government actions and agita that religious individuals and businesses have brought to public attention have not been over the legality of same-sex marriage, they have been because of laws that prohibit discrimination based on sexual orientation itself.
If I can have anti-discrimination laws or marriage equality, I’ll pick marriage equality every time.
I do not want to diminish the significance of this move. It will have positive repurcussions both among gay LDS members (not to mention their families) and the broader faith community. But by choosing to support the kinds of anti-discrimination laws that are most subject to civil abuse, and then carving out only the abuse that they are most subject to, they have done the political thing rather than the right one. There is more wrong with anti-discrimination laws in today’s world than just religious difficulties.
Worse than that is the necessary implication in the whole deal: denying that the civil laws prohibiting same-sex marriage are, themselves, the core discrimination that undermines the liberty this nation guarantees. The church will now be able to say that it opposes discrimination based on sexual orientation, while continuing to support civil laws that demand discrimination.
On balance, this concern may make little difference. I am hoping the Supreme Court will ultimately resolve marriage equality the right way, and call that form of discrimination what it is. That decision will make not a bit of difference to the Mormon church, or any other religious denomination.
But years after that happens, we will still have to deal with the legacy that anti-discrimination laws, long past their sell-by date, have left us. This may give them a bit more legitimacy than I think they deserve.
8 Comments for “The Mormon Bargain”
posted by Mark Peterson on
Given that anyone who desires to discriminate can just cite a religious objection, the Mormons’ position would have no teeth.
I suspect the timing of this relates to the marriage cases, and when the Mormons file an amicus brief. They can now argue that their position on marriage isn’t driven by animus because after all the church backs an anti-discrimination law in housing and public accommodations (albeit one that would prevent no acts of discrimination because of the religious exemption).
posted by Houndentenor on
Mormons have pretty much lost the culture wars and are now trying to set the terms of the truce? Really? As others have and will say, since the only reason ever given for discrimination against gays is the religious one, having a religious exemption makes the entire law a farce. And they know that better than we do. This is a PR move to placate moderates, especially Mormons who are sick of being known as the anti-gay church. It may work as PR since our idiot media will probably not bother to look at the ridiculousness of such an empty gesture, but it’s not any kind of deal.
posted by Tom Scharbach on
If the LDS proposes to add sexual orientation to existing Utah non-discrimination laws (e.g. the Utah Antidiscrimination Act [Utah Code, Title 34A, Chapter 5, Section 106] and the Utah Fair Housing Act [Utah Code, Title 57, Chapter 21]), keeping existing religious and other exemptions in place without change, fine by me.
If, on the other hand, LDS proposes to add sexual orientation to existing Utah non-discrimination laws but create additional religious and other exemptions with respect to sexual orientation that are not applicable to other categories (race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, age, religion, national origin, or disability), not fine by me unless the LDS can demonstrate a religiously-neutral rationale for singling out gays and lesbians for special discrimination.
At this point, all that seems to be on the table is a hign-minded statement of principles. The devil will reside, as always when it comes to legislation, in the details.
I notice, in passing, that Elder Oaks cited the Houston subpoena and the Brendan Eich resignation as two of three examples of “attacks on religious freedom”. Neither is relevant or apt. The Houston subpoena was a mistake, legal overreach resulting from idle form-following and inadequate review/supervision, and the Brendan Eich resignation was, as debated at length on this forum, complicated and murky. Oaks is a distinguished lawyer (Clerk to Chief Justice Warren, Kirkland & Ellis, professor at the University of Chicago Law School, legal counsel to the Bill of Rights Committee of the Illinois Constitutional Convention, and so on), and his selection of those two examples, if an indication of his thought process and attitude, is suspect. I could understand it coming from the ADF, but not from an astute lawyer.
posted by Tom Scharbach on
A legal note on the Georgia litgation (Inniss v. Aderhold):
On January 20, the state moved to put the case on hold pending the Supreme Court’s decision in Obergefell v. Hodges, the Ohio 6th Circuit case on appeal to the Supreme Court In its motion, the state argued that discovery in the case would take at least four months (roughly the end of May) and Lamba Legal filed a response agreeing to put the case on hold:
So (assuming that the District Court judge agrees to put the case on hold) that’s it for Georgia until after the Supreme Court rules on the 6th Circuit cases.
I think that we’ll see more of this as the Supreme Court appeal moves forward.
It remains possible that the 5th Circuit (Louisiana, Mississippi and Texas cases) will rule before the Supreme Court hears oral arguments (orals took place on January 9, so the court has time to issue a decision if it wants to get it’s two cents in), but I suspect that most of the rest of the cases now pending will either be put on hold or limp along little by slowly.
posted by Mark Peterson on
The Nebraska case, though, (somewhat surprisingly) is going forward, with a hearing set for Feb. 19th. Given that it’s before the same judge who struck down the ban (on very different reasoning) in Citizens for Equal Protection v. Bruning, it would seem a victory there is likely.
Given the tone of his ruling in the motion to dismiss, it seemed like the judge in Georgia was unlikely to produce a favorable ruling anyway, so the case being on hold is probably a good thing.
posted by Kosh III on
Frak the Mormons!
posted by Jorge on
The one thing the church leaves off the table is support for civil marriage equality. Virtually all of the lawsuits, government actions and agita that religious individuals and businesses have brought to public attention have not been over the legality of same-sex marriage, they have been because of laws that prohibit discrimination based on sexual orientation itself.
Interesting, but I have the opposite objection.
posted by Rodney Hoffman on
As my bumper sticker says, “Civil marriage has nothing to do with your church.”