Major players in the ongoing battle over religious freedom and LGBT rights will meet at Yale University this weekend to discuss conscience rights, LGBT protections and legislation needed to balance those competing interests.
Faith leaders and LGBT activists attending the event aren’t the only ones in search of consensus since the Supreme Court legalized same-sex marriage a year and a half ago.
The meeting is a response to in-fighting within the community of scholars, lawyers and policymakers who once worked together as religious freedom advocates.
“We all think … the view that nondiscrimination protections must crowd out every other value is wrong, but we have different visions of the right,” said Robin Fretwell Wilson, director of the family law and policy program at the University of Illinois College of Law and one of the meeting’s organizers.
Wilson is a leader of what has been labeled the “Fairness for All” camp, working with lawmakers across the country to enact laws, like the Utah Compromise, that balance sexual orientation and gender identity, or SOGI, anti-discrimination laws with exemptions to protect the conscience rights of faith communities and religious business owners.
The other side, populated by prominent scholars and traditional marriage supporters like Robert George of Princeton University and Russell Moore of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, rejects SOGI protections, calling for stronger religious freedom laws rather than Fairness for All legislation.
The latter group of religious leaders recently outlined their arguments in a public letter, titled “Preserve Freedom, Reject Coercion.”
“Proposed SOGI laws, including those narrowly crafted, threaten fundamental freedoms, and any ostensible protections for religious liberty appended to such laws are inherently inadequate and unstable,” the letter reads.
It was the most public acknowledgement yet of the gridlock that’s taken hold in compromise efforts that have involved LGBT activists, national corporations, religiously affiliated colleges, small-business owners and other groups with a stake in the LGBT rights.
Conflict is inevitable, especially when SOGI law supporters and detractors can make meaningful arguments to support their view, said Tim Schultz, president of the 1st Amendment Partnership.
But he, like other religious freedom advocates, are hoping to keep war at bay.
“We’re never going to have unanimity. That’s just inevitable,” Schultz said. “It’s going to be a matter of proceeding with internal disputes. I really hope they don’t get too divisive.”
Religious freedom today
In recent years, the tone and politics of religious freedom debates has changed dramatically. Conscience rights were once a premier bipartisan cause — the Religious Freedom Restoration Act of 1993 fell three votes shy of passing unanimously in both houses of Congress — but has now become a partisan litmus test that carries the divisive labels of bigot and sinner.
Growing tension stems from many sources, including the nature of media coverage, business boycotts and the interference of national advocacy groups in local politics, according to Schultz and others.
For example, controversy erupted in 2015 when Indiana passed a law offering typical state-level RFRA protections and also expanding on them. Critics took to news sites, social media pages and blogs to decry it, and the governors of states like Connecticut and New York banned administrative travel to the state.
State SOGI Laws. Graphic courtesy of Deseret News
“You can almost chart the success or ultimate political failure of a religious freedom law by whether national business groups got involved or not,” Schultz said.
The risk of business interference and negative media coverage has increased interest in Fairness for All legislation, similar to what passed the Utah Legislature in 2015. However, those behind the Utah Compromise say even a more balanced approach isn’t immune from high-profile scrutiny.
“As we went through the process (of drafting the bill,) people on the LGBT rights side would have to check with organizations like the Human Rights Campaign and the ACLU. And at the same time, we were running it by religious freedom scholars and attorneys inside and outside of the state,” said Utah State Sen. Stuart Adams.
He added, “The term ‘Utah’ in Utah Compromise is a little bit understated. It was anything but a Utah event.”
Passed in March 2015, Utah’s law protected members of the LGBT community from discrimination in housing and employment, while also ensuring the rights of faith groups and government officials with deeply held religious beliefs. It succeeded with the support of the dominant Church of Jesus Christ of Latter-day Saints and other religious stakeholders in the state, as well as representatives of local and national LGBT rights groups.
Stumbling block
Adams now partners with Wilson to educate lawmakers and community leaders about the Utah Compromise, correcting false perceptions and combatting the increasingly polarized political climate.
“As people find out what we’ve done and truly understand it, they seem to embrace it. But there are some who still have a problem with giving additional (SOGI) protections,” Adams said.
Ryan Anderson, a senior fellow at the Heritage Foundation who signed the December letter, is one of the most prominent SOGI critics. He disagrees with the logic of Fairness for All legislation, arguing that now is not the time to turn sexual orientation and gender identity into protected categories under the law.
Instead, policymakers should prioritize passing laws that ensure the rights of traditional marriage supporters, Anderson said.
“In the aftermath of the (same-sex marriage) decision, we don’t need additional laws protecting gay and lesbian Americans. We need laws that protect those who lost,” he said.
Even when SOGI laws include religious exemptions, as Utah’s did, they cast belief in traditional marriage in a negative light, Anderson said.
Fairness for All legislation defines discrimination as a refusal to hire, house or serve people from the LGBT community or participate in a same-sex wedding ceremony, and then exempts the actions of some religious groups.
“The concern here is that, over time, the rule will swallow the exemption,” he said, citing a 2014 Washington, D.C., City Council decision to remove carve-outs for religious schools from a previously passed SOGI law.
Recent research shows religious objectors fare better in court when they can point to faith-based exemptions to statutory protections instead of just the First Amendment.
Wilson, the Illinois law professor, acknowledged that the legislative landscape of SOGI laws sometimes put religious freedom at risk.
“The old SOGI laws, passed before marriage equality, were very tilted,” she said.
However, Wilson and Schultz both said a spotty SOGI record in the past shouldn’t put the brakes on future Fairness for All work.
Twenty-one states have some form of SOGI nondiscrimination protections in place today.
Deeper engagement
The arguments for both sides have developed over more than a decade of studying local, state and federal laws, attending conferences and writing books and papers. And their viewpoints continue to evolve.
“It took me about a year from the first time I heard this (Fairness for All) idea to the time I came to believe it, and I work full-time in the area of religious freedom,” Schultz said.
As they’ve worked to draw others into their camps, religious liberty experts have tried to pass on this same measured approach, providing context and history rather than a brief stump speech.
“We think this is a conversation worth having civilly and thoughtfully,” Anderson said. He’s met with Wilson, Schultz and other Fairness for All folks, explaining his concerns even as he entertains their arguments.
The National Association of Evangelicals and the Council for Christian Colleges & Universities saw the value of exploring efforts to balance LGBT nondiscrimination measures and religious liberty.
Over the last 16 months, they’ve met with 200 Christians whose jobs potentially intersect with SOGI policies.
“The goal was to solicit input from and the wisdom of these leaders. We wanted to hear their thoughts and concerns and offer support,” said Shapri LoMaglio, CCCU’s vice president for government and external relations.
However, opportunities to promote deep engagement with the Fairness for All debate may be slipping away. In advance of the 2017 legislative season, SOGI laws have been thrust into the spotlight once again, motivating advocacy groups to win over a bigger chunk of a divided American public.
On the horizon
Few people would have predicted that Utah would emerge as a groundbreaker in Fairness for All legislation. In addition to public urging by leaders of the LDS Church, policymakers were pushed to address the divisive issue because of the rapid spread of nondiscrimination ordinances at the municipal level, which had created confusion for statewide businesses.
“Thirteen or 15 municipalities had antidiscrimination protections in housing and employment,” Adams said.
This situation is becoming more common across the country, as LGBT rights advocates move the needle in their favor at the local level, Schaerr said.
“Most opponents of Fairness for All legislation ignore the reality that the LGBT community has succeeded and continues to succeed in enacting strong LGBT protections in large and small cities throughout the nation,” he said.
These SOGI statutes often pass without religious exemptions, Wilson said. Additionally, they create discrepancies from city to city that are hard for business owners to sort out.
Another reason for the recent surge in interest in SOGI laws and Fairness for All legislation is the election of Donald Trump. Some argue that he and a Republican-controlled Congress will be able to reassert religious freedom as a core priority.
“The prospect of one or more conservative appointments to (the Supreme Court) might incline the gay community toward preemptive political compromise,” wrote Jonathan Rauch, a senior fellow in governance studies with the Brookings Institution, in an email. “For the same reason, if religious exemption folks think the court will shift right … they might feel less need to compromise.”
In the face of growing polarization, religious freedom scholars on both sides of the SOGI debate said they’re committed to keeping the lines of communication open.
Both camps find common ground in mutual dissatisfaction with the recent U.S. Commission on Civil Rights report about conflict between religious freedom and SOGI protections. Commissioners sided with LGBT protections over conscience rights, painting a bleak picture of efforts to find compromise.
For Wilson, the report was as frustrating as the December letter from SOGI opponents. They both reject the notion of peaceful coexistence.
“If people from the deep left and deep right descend on a state and both say the other deserves no protection, this isn’t going to work,” she said. “The reasonable people in the middle get drowned out.”