Utah is moving forward with an LGBT anti-discrimination and religious freedom measure, for which both local LGBT political groups and the Mormon church provided input and have announced their support. The text of the bill is here. As the AP reports:
At a news conference where Utah senators and LGBT-rights activists joined high-ranking leaders of the Mormon church, officials touted the measure as a model for the rest of the country and history-making for Utah.
The legislation, which includes transgender protections, covers employment and housing discrimination but not public accommodations, which could indicate how strong-arming cake bakers and photographers has played out. It also exempts religious organizations [as well as] the Boy Scouts, and includes job protection for employees who voice moral or political views about marriage or sexuality “in a reasonable, non-disruptive, and non-harassing way.”
Nationally, the LGBT left and religious right will be against it. And given many LBGT activists’ opposition to exempting religious organizations, such a deal isn’t likely in future federal legislation. But in red states that currently don’t have LGBT-inclusive nondiscrimination provisions, it could be a way forward.
Are the compromises worth it to secure employment and housing protections? Jonathan Rauch and the Brookings Institute will be exploring that topic in an upcoming forum.
More. LGBTQ Task Force leader Rea Carey recently reiterated her group’s opposition to exemptions for religious organizations in the proposed Employee Non-Discrimination Act (ENDA), declaring:
…on July 8th, we pulled our support for the Employment Nondiscrimination Act. We simply had come way too far to compromise on such a fundamental principal of fairness and federal equality in the workplace. Instead we redoubled our work for what we really need—strong federal non-discrimination legislation without broad exemptions. I’m happy to report that our opposition, and that of other organizations, worked.
As I noted in an earlier post, “Well, it worked in terms of killing ENDA.”
The following LGBT groups, among others, also withdraw their support for ENDA over its exemption for religious organizations: Lambda Legal; Gay & Lesbian Advocates & Defenders; National Center for Lesbian Rights; and Transgender Law Center.
Moreover, Evan Wolfson, president of Freedom to Marry, said he shares “grave concerns” over the religious exemption.
In the decades before 2013, exempting religious organizations from LGBT anti-discrimination statutes was a consensus position. Now, on the federal level, it’s anathema for many national LGBT rights advocates.
And on the local level, ferreting out self-employed service providers who have conscience objections to performing expressive services for same-sex weddings, and using the state to prosecute them for refusing these gigs, is the new activist front for “equality.”
Furthermore. Jonathan Rauch writes that while the Human Rights Campaign lauded the deal:
…one-sided “religious freedom” laws sought (and sometimes passed) by religious conservatives in other states have deepened suspicion in the LGBT world that religious accommodations are intended as a “license to discriminate.” Some LGBT folks now view any such accommodations as a poison pill. That view did not prevail in Utah, whose example suggests that good-faith negotiations and a tangible upside can still attract gay support for compromise.
Update. Passed by Utah’s Republican-controlled House and Senate, and signed into law by GOP Governor Gary Herbert.
Final word. In his Wall Street Journal column (“Utah Shows the Way on Gay Rights”), William A. Galston writes:
By overwhelming majorities, the state legislature adopted a pair of bills that banned discrimination against lesbians, gays, bisexuals and transgender individuals in employment and housing while carving out accommodations for individuals and institutions with conscience-based objections to these measures. Individual local officials who object to same-sex marriage are not required to preside over such ceremonies, for example, but each local office is responsible for doing so.
… Neither side allowed the best to become the enemy of the good. Both came to see that protections for LGBT individuals and for religious conscience needed to be enacted simultaneously, as a package.
19 Comments for “Utah’s Anti-Discrimination Compromise”
posted by Tom Scharbach on
The legislation, which includes transgender protections, covers employment and housing discrimination but not public accommodations, which could indicate how strong-arming cake bakers and photographers has played out.
Notice that no religious exemptions from the non-discrimination provisions are granted to individuals or for-profit businesses.
I’m not sure whether that indicates “how strong-arming cake bakers and photographers has played out”, but I suggest that it might be significant that the compromise was reached by removing the individual and for-profit business exemptions from the bill.
Nationally, the LGBT left and religious right won’t like it.
I don’t seem much evidence that you’ve got that right, Stephen, at least so far as the “LGBT left” is concernred.
For example, the HRC had this to say:
Other similar “LGBT left” groups seem to be making statements along similar lines, praising the compromise.
I can’t speak for the religious right. That’s your crowd to deal with, not mine.
But let me ask you this: If the bill had covered public accommodations, exempting religious organizations and affiliates but not individuals and for-profit businesses, would you praising the bill or damning it?
posted by Tom Scharbach on
Stephen, if you are going to equate apples and oranges, at least do what would be required of any college student — compare and contrast the religious exemptions in the Utah bill and the religious exemptions that were proposed for ENDA. The two are, well, apples and oranges in many important respects.
posted by Jorge on
Hmm, I know I take a risk of overswinging every so often, but I really must assess the risk of a little better where relying on Mr. Miller is concerned (especially when I’m relying on him to rebut him).
posted by craig123 on
Tom S. first claims that few LGBT groups opposed ENDA’s religious exemption, than when Stephen posts an addition showing that this was false, Tom S. declares Stephen is comparing apples and oranges because ENDA’s religious exemption is different from Utah’s. But ENDA’s exemption is actually narrower than Utah’s, so the fact that a broad range of major LGBT groups oppose ENDA because of it only makes Stephen’s case — these activists would never go with a compromise as encompassing as Utah’s.
So what is Tom S trying to say, as he trips over himself, contradicts himself, and makes contrary charges?
posted by Tom Scharbach on
Tom S. first claims that few LGBT groups opposed ENDA’s religious exemption …
I said that few LGBT groups opposed Utah’s compromise. I said nothing about opposition to ENDA. So let’s reform your sentence so that it reflects what was actually said: “Tom S. first claims that few LGBT groups opposed Utah’s religious exemption, th[e]n when Stephen posts an addition “showing” that this was false by citing opposition to ENDA, Tom S. declares Stephen is comparing apples and oranges because ENDA’s religious exemption is different from Utah’s.”
Reworded, you got it right. In its original form, you are doing exactly what Stephen did, conflating two unlikes (apples and oranges) into an equivalent.
The two exemptions are quite different in scope and application — for example (and this is but one example), Utah’s exemptions apply across the board, for the most part, and in general meet the “equal means equal” test, while ENDA’s exemptions are narrowly focused to sanction special discrimination against gays and lesbians, and gays and lesbians alone. That’s a big difference, and the two have other significant differences.
So before you go off, spouting away about how “Tom S. … trips over himself, contradicts himself, and makes contrary charges”, here’s something I would suggest: Put aside your bile for a minute, sit down and compare and contrast the two laws in detail, focusing on scope and application, and then ask yourself a question: Why did “LGBT left” groups endorse the Utah “compromise” but express reservations about ENDA’s exemptions? Read the statements issued by the “LGBT left” groups, and in turn think about those statements in light of the differences in the scope and application of the two exemptions.
posted by Tom Scharbach on
A reformat of the previous comment to get the italics right:
Tom S. first claims that few LGBT groups opposed ENDA’s religious exemption …
I said that few LGBT groups opposed Utah’s compromise. I said nothing about opposition to ENDA. So let’s reform your sentence so that it reflects what was actually said: “Tom S. first claims that few LGBT groups opposed Utah’s religious exemption, th[e]n when Stephen posts an addition “showing” that this was false by citing opposition to ENDA, Tom S. declares Stephen is comparing apples and oranges because ENDA’s religious exemption is different from Utah’s.”
Reworded, you got it right. In its original form, you are doing exactly what Stephen did, conflating two unlikes (apples and oranges) into an equivalent.
The two exemptions are quite different in scope and application — for example (and this is but one example), Utah’s exemptions apply across the board, for the most part, and in general meet the “equal means equal” test, while ENDA’s exemptions are narrowly focused to sanction special discrimination against gays and lesbians, and gays and lesbians alone. That’s a big difference, and the two have other significant differences.
So before you go off, spouting away about how “Tom S. … trips over himself, contradicts himself, and makes contrary charges“, here’s something I would suggest: Put aside your bile for a minute, sit down and compare and contrast the two laws in detail, focusing on scope and application, and then ask yourself a question: Why did “LGBT left” groups endorse the Utah “compromise” but express reservations about ENDA’s exemptions? Read the statements issued by the “LGBT left” groups, and in turn think about those statements in light of the differences in the scope and application of the two exemptions.
posted by Jorge on
It also exempts religious organizations (including the Boy Scouts)
Hmm? (Looks)
The bill doesn’t include the Boy Scouts as a religious organization. It provides a standalone exemption for them.
The Boy Scouts are not a religious organization. I would call them a civic organization. They reject atheists and probably most agnostics, that is true, but if anything that makes them a collective of spiritual people. I don’t believe they go very far in defining what “God” is. The inclusion of the Boy Scouts is a dire sign for those who oppose religious-based exemptions to anti-discrimination laws, because it explicitly expands the exempted parties to include large collectives of private organizations that engage in considerable social and civic activity in their communities.
Unfortunately for those who oppose granting exemptions, the choice of the Boy Scouts as the pioneer for non-religious exemption is a very strong one that is likely to have a controlling trend. The reason they are exempted is out of both political and legal necessity. The Boy Scouts are a powerful force for good in this country (probably Utah as well), and they discriminate against gays. You think people made hay over photographers and wedding cakes? That’s nothing compared to the **** that will fly if a state tries to fine the local Boy Scouts. And ultimately, that is a battle that has already been fought and lost on the private level, in an eponymous Supreme Court case, no less. Think you that the government has more rights than a private citizen to force the matter? The legal and political ground does not favor the left-LGBT opposition. A move has just been made that strongly consolidates the principle of exemption.
posted by Houndentenor on
Given the number of BSA troops that are affiliated with local churches, one could easily argue that it is, at least in practice, a religious organization. In particular Mormons use Scouting as one of its main youth activities (and are highly influential in the BSA organization as a result).
posted by Jorge on
That reminds me of the argument that “In God We Trust” violates the First Amendment.
No.
posted by Houndentenor on
Does this have a real chance of getting through the state legislature? If so, it is a lot more legal protections than gay and trans Utahans currently have. I view that as a good thing.
posted by Tom Scharbach on
I don’t know, but if the LDS puts some muscle behind it, it probably has a good chance, because the religious mix in Utah is unique — over 60% Mormon, less than 10% conservative Christian.
Mormon legislators are unlikely to fly into open rebellion against the LDS, Democrats are lining up in favor (e.g. Jim Dabakis, a gay State Senator, who said “This is a momentous moment in Utah’s cultural history. It is not a win for one side or the other, it is a win for all Utahns.”), and the compromise is supported by the HRC, Equality Utah and other “LGBT left” organizations, so where would a majority against the bill come from?
This is a reasonable bill, and as you point out, provides “a lot more legal protections than gay and trans Utahans currently have”. I agree it is a good bill.
I also agree with those who suggest that this bill could be a “model for the rest of the country”. Unlike most of the recent proposals around the country, it treats all protected classes on an equal footing for the most part — it doesn’t turn “religious freedom” into “special discrimination for gays and lesbians” — and limits the “religious exemption” to religious organizations and affiliates (sensibly defined) rather than trying to alter the landscape by extending the “religious exemption” individuals and for-profit businesses.
The problem with the “model for the rest of the country” line of thinking, though, is that Utah is a unique religious/political environment. I doubt whether a bill like this could be hammered out in most of the country at present.
posted by Houndentenor on
Broadly defined religious exemptions are a concern. It’s one thing to exempt churches. For obvious reasons, a Catholic church is not going to hire Presbyterians as priests. An accounting firm would not be allowed the ability to discriminate in that way. Unfortunately we now have a movement which would exempt all employees from doing any job they claim violates their religious beliefs which I think is going to be a legal nightmare anywhere it is passed, but since neither I nor anyone like me has any influence in the states run by the religious right, we’ll just have to wait for them to figure out this error on their own.
posted by Tom Jefferson III on
hmmmmm…anyone else having problem posting txt here?
posted by Tom Scharbach on
I’ve not had the problem today. Other days, I’ve experienced a delay of hours between posting and the appearance of the post on IGF. It is sporadic. Unless you inserted more than one link (posts with two or more links are bounced by a spam filter), what you posted should show up, sooner or later.
posted by Tom Scharbach on
A legal side note: The Supreme Court has scheduled oral arguments in the 6th Circuit cases for April 28. Recordings of the oral arguments are typically available after the arguments, and will be fascinating listening.
posted by Tom Scharbach on
In the decades before 2013, exempting religious organizations from LGBT anti-discrimination statutes was a consensus position.
Stephen, it pretty much still is. The problem is that the “religious exemptions” proposed in the last few years go far beyond any reasonable definition of “religious organization”.
Now, on the federal level, it’s anathema for many national LGBT rights advocates.
The level (federal or state) isn’t the issue. The nature of the proposed exemptions are the issue.
The problem with ENDA was that layer after layer of conservative Christian lard got added to the exemptions until, finally, organizations that had worked for ENDA for years came to the conclusion that ENDA, as proposed, was less a vehicle to protect gays and lesbians than it was a vehicle to sanction discrimination. In the end, the structure of protection collapsed under the weight of the lard.
I doubt that the “Utah compromise” (exemptions for religious organizations and reasonably-defined “affiliates” applicable to classes across-the-board, but not indvidiuals or for-profit business) would meet with much resistance from the “LGBT left” or rational folks in general.
But, as you point out in your post, the religious right is likely to dig in and oppose any reasonable compromise position, and for the time being, anyway, the religious right wields significant power in one of the two major political parties. So I don’t hold out much hope for ENDA. I gather that you don’t, either.
posted by Don on
I’m not so terribly disappointed with this development. What strikes me the most is that there is a willingness to do an anti-discrimination piece at all. Forget the topic, but the libertarian/business wings of the party are not for any new laws for anyone for any reason. This is a new regulation.
The fact that this is no longer being discussed in “it will destroy businesses with unnecessary lawsuits” terms is amazing to me.
While polling has been strong on gay protections for a long time, all one had to do to oppose such a thing was shout “regulating business to death! they will all flee the state!” and the discussion was over with the bill dead on the floor.
Here in Florida, it’s being spearheaded by business groups. There is a business coalition trying to pass this regulation. Their point is “we can’t get people to move here to work for us without this level of legal protection.”
it’s Florida. people moving here is our entire economy.
of course, looking around, it would appear we don’t have trouble attracting gay people moving here . . .
[but I digress]
posted by Tom Scharbach on
An update on Nebraska: The 8th Circuit stayed the District Court’s Nebraska marriage equality decision late this afternoon. The court added the Nebraska decision to the three other marriage equality cases (Arkansas, Missouri and South Dakota) that will be heard on May 12.
posted by Tom Jefferson III on
In 1993 Minnesota passed a comprehensive civil right law that included sexual orientation and gender identity. It made specific exemptions for religious groups, voluntary youth groups (i.e. the Boy Scouts of America) and the like.
The Utah ‘compromise’ between Mormons and gay activist could be a sign of progress or not. This is not the first time that groups representative gay rights supporters and groups representing religious rights have sat down together.
Unlike the Minnesota bill, I believe that this one only applies to employment and housing discrimination.