Many heterosexuals argue that they want lesbians and gay men to be treated fairly, even equally in the society, and at the very least to be tolerated - with the proviso that they must also be tolerant of others.
But what does that fairness or equality or tolerance look like in law?
Equality Utah decided to find out. They offered a package of five bills, ranging from health care coverage for partners in same sex relationships to laws prohibiting discrimination in employment and housing to one setting out the simple ability of same sex couples to inherit one another's property.
All of them failed in the legislature.
In doing this, Utah has become the test case for good faith in the debate over gay rights. What legal rights will the vast heterosexual majority pass that will assure lesbians and gay men are treated fairly, equally or with tolerance?
Many legal rights have nothing to do with a person's sexual orientation, so of course they apply equally to heterosexuals and homosexuals: the right to own property; the right to apply for a driver's license and, if obtained, use the public highways; the right to a lawyer when accused of a crime. . .
But the test is not whether homosexuals are citizens - virtually no one believes they are not. The test is how the law treats them in contexts where sexual orientation matters. Stated another way, many times the law presumes citizens are heterosexual, and has been designed to account for this fact. Given that the vast majority of citizens are heterosexual, and that in the past homosexuality was at best a personal vice not to be publicly acknowledged, and at worst a crime for which imprisonment could be and was imposed, it makes sense that the civil law would not, historically, have taken homosexuality into account.
Today, homosexuality cannot itself, be made criminal, putting it, finally, on the same legal footing as heterosexuality has always been. But that is not yet true in the civil laws where heterosexuality matters and is presumed. Utah has failed the test of good faith. It has said, on the one hand, that it wants to treat homosexuals fairly and equally and with tolerance, but has left intact laws which take heterosexuality for granted and treat homosexuals quite unfairly and unequally.
Ironically, it was the constitutional principle of equal protection that was designed to guard against exactly this kind of treatment of a minority by a large majority. But in today's political discourse, constitutional equality is not only minimized (by attacks on judges who try to apply it), it is, in fact, being withdrawn by voters as a principle to rely on at all when homosexuality is involved.
That leaves lesbians and gay men to rely on the good will of the voters. Utah shows how the promises the majority makes can be empty of any meaning at all.