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The Utah Compromise

Legislature Returns

Watching the unnecessary dramas that recently unfolded in Indiana and other states, one thing is clear: the landscape of protecting religious liberty has changed. Permanently.

State legislatures no longer have the option of considering if LGBT rights should be recognized. That decision has been made.

Legislators do still have the power to calibrate a balance between LGBT rights and those of religious believers.

Last month, in Utah, by recognizing that the rights of some cannot and should not be acquired at the expense of others, we found a balanced and equalizing solution to squaring religious liberty with LGBT non-discrimination.

As chief sponsor of the two bills forming the Utah Compromise for antidiscrimination and religious liberties, I carried away a number of lessons that have become all the more poignant as I watch what has been unfolding in Indiana, Georgia, and elsewhere.

Keeping everyone at the table is critical. Any heavy lift will require extensive negotiations; there was certainly no omission of that rule with what we accomplished in Utah. But learning to live and work with those who do not share beliefs and values is imperative. People view their religious identity and their sexual identity as core fundamental values and as such, those values deserve respect and fair treatment.

Legislative negotiations are a considerably better vehicle to protect and define those values than decisions from the benches. Judicial decisions have not provided, and in many cases cannot provide, the same sort of nuanced protections for both sides that a legislature can. Using the legislature’s unique ability to bargain provided winning gains to members of our community that would never have been achieved through a court decision.

Once a judicial decision dictates a particular outcome for any issue, the urgency for reaching compromises that benefit both sides dissipates at best, and often is entirely disregarded as the victorious side no longer has any incentive to bargain. The current conundrum being faced across the country of how to balance LGBT rights and religious liberty is no exception. As has been previously pointed out, judicial fiat on the side of same-sex marriage is causing both LGBT supporters and religious thought-leaders to shun the compromise option and urge their allies to simply dig in.

The reality, however, is that decisions and about gay rights and religious liberty are going to be made. The question is will they be made preemptively by legislatures when stakeholders still have some leveraging currency, or after judicial decisions have been handed down, reducing or even eliminating the value of that negotiating currency.  Legislatures should not wait for what may be inevitable decisions. Instead they should be both preemptive and proactive in their quest to lock in important civil liberties.

Ask yourself: How is trying to hold the existing religious liberty line against our rapidly changing social norms—a line that may be erased in the flash of a judicial pronouncement—more advantageous than adopting a pragmatic legislative compromise that would eliminate rather than provoke litigious contention in the first place?

Utah passed its non-discrimination and religious liberty protections in two bills. The first, SB 296, leveled the playing field by guaranteeing that all employees will have the right to express their religious, moral, or political beliefs while they are at work; further, employees may not be punished, demoted, or dismissed in the workplace because of their religious activities, political activities, or expression of personal convictions outside the workplace. So in Utah there can be no workplace retaliation for either marching in a gay pride parade or for speaking at a “pro-life” event.

The bill also protects LGBT individuals from discrimination in employment and housing based on their sexual orientation or gender identity. However, SB 296 specifically states that such accommodations “shall not be construed to create a special or protected class for any other purpose [than employment and housing].” It also contains a non-severability clause, protecting both sides from potential future judicial action.

The second bill, SB 297, protects the character of faith communities and the buildings and property they own by allowing them the discretion to perform, and celebrate, marriages consonant with their faith. It gives religious organizations and religious leaders the legal ability to respectfully decline to host marriage celebrations with which they do not agree; it guarantees religious organizations the ability to conduct counseling courses solely consistent with their faith; it provides protections for individuals who hold professional or business licenses to express their personal beliefs on marriage family and sexuality in non-professional settings and not be punished or censured on a professional level.

And perhaps the most unique provision of SB 297 is that it provides guaranteed access to marriage—same-sex or traditional—by ensuring that a willing state-authorized celebrant is available to any couple who asks to be married.

As in many other states, a federal judge struck Utah’s ban limiting marriage exclusively to marriages between a man and a woman. SB 297 make real the access of same-sex couples to marriage while permitting individual employees who work in those county offices, and who cannot perform such marriages consistent with their faith, to remain in their jobs. This simple mechanism, like the entire Compromise package, affirms that the interests of same-sex couples and religious believers can exist harmoniously.

There are many who recognize the simple elegance of the solution, from political leaders like Jeb Bush and President Obama, to thought-leaders from the Church of Jesus Christ of Latter-day Saints, Brookings Institution, Wall Street Journal, Washington Post, Time magazine, the New York Times, and the First Amendment Center. And perhaps most importantly, leaders in the state of Arizona, which tried but failed last year to accomplish the balance.

Utah has found an innovative, resourceful solution that is being lauded as a model for legislatures across the country.

I hope my legislative colleagues in other states see the virtues in reaching compromises like the one reached in Utah. Only by advancing the civil rights of both communities do we ensure respect, tolerance, and compassion for everyone.

Reader Discussion

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on April 14, 2015 at 10:31:41 am

Senator Adams:

You and your colleagues are to be commended for fashioning what appears to be a reasonable compromise AND for the effort to remove this issue from the grasping hands (minds?) of the Judicial Branch. As you argue, Judicial intervention results not in resolution but a hardening of the issue.

I notice, however, that protections for the LGBT's is specifically limited to housing and employment.
My questions is this: Will this be sufficient to forestall any "bakers dilemma" in Utah? Could not some determined activist upset the arrangement by demanding *bakery* service, failing to obtain such service, and then proceeding to initiate suit in Court?

What happens then? It is unclear from the text of your essay if Utah has specifically disallowed this recourse (or permitted such discretion to the baker).
Again, commendations to you for the effort; I am not so salient on the prospects of it being the final word in the face of a determined and vocal group (perhaps from outside the State of Utah) that will view this well crafted compromise as insufficient.

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gabe
on April 14, 2015 at 11:50:48 am

Oops! should read: :...I am not so (sanguine) on the prospects...."

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gabe
on April 14, 2015 at 12:16:25 pm

Congrats to Utah -- although, now I see that gabe likes the policy, I'll have to reconsider it.

That said, I still wonder about the devils in the details:

1. Protects religious/political expression at work: Does this apply to people who wield state authority? May police officers offer sermons while considering whether to write up a traffic ticket? May public school teachers?

2. No adverse employment sanction for expressions of faith/belief in non-professional settings: Fine – provided that employers can follow up with employees when they return to work.

If a paramedic declares that he has religious objections to having contact with an unrelated female, or to providing blood transfusions, I’d like the emergency services people to ask him to explain how his views are compatible with performing his job – and to find substitute paramedics if they aren’t compatible.

If it becomes widely known that the Dean of Admissions at the University of Utah is also the Grand Wizard of the KKK, this might prove to be relevant to the university’s ability to attract (and select) students, even if the KKK business is all done on his spare time.

Etc.

3. State responsible for providing willing clerks to process marriage applications: What remedy if the state falls down on the job (e.g., all the “willing clerks” are out sick)?

Admittedly, this last one is a minor concern. But this part of the statute demonstrates my favorite remedy for a variety of discrimination claims: Let me discriminate against members of protected classes – provided I bear the burden of showing where members can obtain substitute housing/employment/public accommodations of comparable quality in close proximity. If I refuse to let you, your dog, and your alcohol into my cab at the airport, but there’s an identical cab behind me that will be happy to have your business, what harm?

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nobody.really
on April 14, 2015 at 12:41:58 pm

Nobody:

Are you that out of town guy I was talking about? - heh!!!

Your points are valid. I suspect that re: the paramedic would (and should) be let go. Clearly, he / she has demonstrated or expressed an unwillingness to perform a critical job function. If I recall from my days in industry, it was permissible to ask if a prospective employee would be able to work on weekends for a third shift and we were entitled to deny employment if the answer was negative. In this case the employee would be choosing to observe his religious practices and we could avoid absenteeism while insisting that certain job criteria be met.

As for our Grand Kleagle (or whatever it is that they call themselves), this is a bit more interesting. Let us suppose that the Kleagle is an exemplary employee AND manages, in his professional role, to do all that is required of a top flight Dean, exhibits nor expresses no unseemly behavior / comments - what then?
We may just as well begin to discharge the Dean of the Physics Department at Stanford because he watches Ancient Aliens and believes that there are *visitors* amongst us - yet the Dean is a fabulous scientist.
Does he get the heave-ho?

I suspect what we may once again confront is the problem of the "perfect being the enemy of the good" - Oops, this is where the courts usually come in and further muck everything up!

Oh well, back to Ancient Aliens for some comic relief.

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gabe
on April 15, 2015 at 07:17:43 am

It would be better if in our country, as well as in others, to learn not to compromise when it comes to issues of sexuality, as well as issues of truth, and be prepared to live in a world that will be ruled by the Messiah. There will be no compromise then.

http://downtownministries.blogspot.com/2015/03/progressive-revelation-or-making-god-of.html

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downtown dave
on April 15, 2015 at 15:54:44 pm

You know, you only have freedom if you are willing to fight to keep it. It looks to me like Utah has given up the fight and is writing up terms of surrender.

The solution to the issue is not either-or. You either fight against the movement or you accept terms of surrender? There are other options.

I'm not a lawyer, but I have read a lot about the activities that lead up to the Declaration of Independence, and to me it seems obvious to me at least that this kind of issue has a straightforward problem and solution.

Instead of writing up your terms of surrender, you can write a petition for redress of grievances. America was founded on the process of redress of grievances by the Continental Congresses of 1774 - 1776. A properly executed petition has always been a very powerful and proper tool for addressing issues of national governance that have to do with a nation's constitution.

Petitions for grievances normally take one of two forms in today's government. Suits questioning constitutionality are addressed by federal court. Issues of law are addressed by the legislature. Those avenues give us the instruments we need to handle most issues. But what if the problem we are addressing is the court and the legislature? What then?

Fortunately, the Framers included in the Constitution another instrument for handling constitutional issues when the government is unable or unwilling to. That is the Article V convention of states.

A petition (essentially a type of suit) that claims that the cause of grievances lies in the characters of the court and legislature can properly request that the state legislatures apply to Congress for a convention to address those grievances. In a suit neither the plaintiff nor defendant can be the judge in the suit. That would be unjust. Yes?

A petition that names the court and legislature as sources of problems necessitates that another party act as judge. If the issue being addressed is one in which a constitutional design leads to an unjust court and an unfair legislature, it can be addressed by a convention of states per Article V. (This isn't a clever legalism. That is in fact how the system is designed to work.)

If your issue here is that some flaw in the design of the constitution is causing corruption, a petition for redress of grievances, addressed to the state legislatures, requesting applications for a convention would be proper and an exercise of due process.

In keeping with the known practices of the process as exercised in 1774, it would be proper and due process to withhold payments such as taxes to the federal government for specific items related to the grievances. It might also be reasonable to enact a temporary nullification of federal acts and rulings until the grievances are addressed.

For example, I happen to believe that the court should be appointed by the state governors, not the President. One of the primary jobs of the court is to keep a check on the exercise of powers by the President. When presidents appoint justices they tend to appoint justices who favor granting greater power to the President. Over time the justices tend to extend the powers of the President until they reach beyond the frame of the Constitution. We see this in the reality in today's government.

So I would put into a petition a bill of rights that listed items of our civil constitution, not the formal written Constitution. The civil constitution is those things we believe in that motivate the original intentions in the written Constitution. One of those rights would be that the system of effective internal checks is valuable and proper. In my list of grievances I would claim that because the President appoints the members of the court the internal checks are weakened. I would include in the petition specific unjust rulings as proof. I would include a discussion of the growth of executive power and the administrative state.

Then I would address my other grievances. The political parties are a bribeaucracy; they no longer represent the people; here's the evidendence. The government needs an objective watchdog, one elected by the people; here's the evidence. Etc. Etc. Etc.

I would not make specific cases or laws the object of the grievances because those are properly addressed by the court or legislature. Those kinds of complaints would not only have little or no meaning in a good petition, they would probably weaken its arguments.

Got the picture?

My non-lawyerly point here is that the problem is not an either-or problem. You do have other options. You just need the political will to exercise them.

HTH

Scott

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Scott Amorian
on April 16, 2015 at 02:45:12 am

[…] The Utah Compromise Stuart Adams, Library of Law and Liberty […]

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PowerLinks 04.16.15 | Acton PowerBlog
on April 16, 2015 at 12:30:22 pm

[…] against state-level Religious Freedom Restoration Acts has sent a signal that, as Utah legislator Stuart Adams say, “the landscape of protecting religious liberty has changed. Permanently.” Many […]

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Why Religious Liberty Arguments Aren’t Working | Acton PowerBlog
on April 16, 2015 at 15:39:46 pm

A few more notes, mostly to myself, before I exit this thread ...

The first exercise of the kind of petition for redress of grievances that I discussed above, and the reforms that may come of it are for the most part trivial matters. The most consequential part is the bill of rights contained in petition.

The British government recognizes Fundamental Laws, which are essentially commonly accepted principles (laws) of good government. When the States left Britain to form a new nation they replaced the British unwritten constitution with a new written Constitution. When we did so, we dropped the semiformal Fundamental Laws, although we retained many of their values as cultural values.

The problem we see with government today is driven in part by the lack of clearly defined and accepted fundamental principles of good government.

The petition for redress of grievances would help with this greatly. Before a congress, such as a convention of states, could act on the grievances it would have to question the validity of the principles in the bill of rights. Once accepted, the principles would then semiformally become a standard against which constitutionality and government actions would be measured. They would become the American Fundamental Laws. This would give reasonable judges tools to favor rights when the execution of a case would otherwise lead the judge to rule against rights because of due process.

For example, gerrymandering is a well know vice of American politics. In gerrymandering a dominant group of politicians redraw political districts to better ensure their reelections. We all know that this is wrong. It is an act of using political power to handicap potential contenders in the race. The contenders do not have access to the same power to draw the political districts. The dominant politicians create an unbalanced playing field. The general principle is that officeholders should be reelected based on proper representation, not on manipulative mechanics, especially mechanics that the contending politicians do not have access to. The people have a right to unbiased elections.

By stating this as a well recognized fundamental principle of our liberal democratic republic, the practice of gerrymandering can be better addressed by a court, both to address current issues, but issues in the future also.

Another point, the first state to do something like this is the one that would set the agenda in the petition. It would play the dominant role in government reforms. It would propose the initial rights, which could become the recognized fundamental laws. The question of the day is: What state if any would take up this cause? If a state does this, will it be a conservative state, or a liberal state, or a rationalist state, or what? The character of the first state would greatly influence the contents of the petition, and therefore influence law and justice going forward.

This Utah case is most interesting because Utah is known for being the most religious state, and Utah's federal government is (again) telling its residents that they cannot exercise aspects of their religious beliefs. The Utah government is trying to work around the federal ruling using instruments the federal court or legislature can easily disable. The federal government has taken the position that all businesses are in effect public utilities owned by private interests, but regulated by the federal government. In other words, the federal government has redefined the American government as a fascist democratic republic. (Don't get me started on the fact that it has taken a power to order citizens to buy products, 'cuz I'll get all kinds of nasty discussing that one.)

I wonder if Utah could be the state to pick up this ball and run with it. If they don't, perhaps some other state will.

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Scott Amorian
on May 08, 2015 at 01:47:41 am

I like the balance, and the motivation/objective. However, I'm skeptical that the courts will actually step back and let such 'proactive' measures stand. After all, hasn't Utah's court already struck down once what the legislature thought was best?

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Thrawn
on September 09, 2015 at 07:48:52 am

[…] has certainly been realized. Some states, such as Utah and North Carolina, have taken steps to institute religious protections for both private and public […]

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What Both Sides Get Right And Wrong About Kim Davis
on November 10, 2015 at 20:27:19 pm

What Messiah? Yours...or mine?

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Tim
on November 10, 2015 at 20:30:48 pm

As a non-lawyer myself, I have a better idea: get rid of - or ignore - the anti-gay prejudice in your religion and no one might ever have anything negative to say about your church again. How's that for a solution? By the way, before you ignore my advice and start to quote your bible, back in biblical days they didn't know what deodorant was. They didn't know the earth was round. How much do we think they knew about human sexuality??

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Tim

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