Protecting Religious Liberty Requires Protections for All

In light of Indiana's passage of an amended state-level version of the RFRA, Cornerstone asks this week's contributors to address the following questions: To what extent should the religious freedom of small business owners protect them from having to act against their consciences? Would such protections open the door to wide-ranging and unjust discrimination against homosexuals, as many fear? What does a cost-benefit analysis reveal about RFRA legislation on the state level? What is at stake in Obergefell v. Hodges, and how does the case relate to state RFRAs? To what extent would a Supreme Court decision in favor of same-sex marriages impede free religious exercise?

By: J. Stuart Adams and Robin Fretwell Wilson

This month, we have heard more about wedding vendors and same-sex marriage than many imagined possible. The cause for such discussion: plain-vanilla religious freedom restoration acts (“RFRAs”) enacted in Indiana and Arkansas.

RFRAs operate in contexts far removed from gay marriage to protect religious believers from being stepped on by governments. RFRAs test the need for governments to take heavy-handed approaches that trod on religious practices. Last year, Kentucky jailed 10 Amish for refusing to display orange safety triangles on their horse-drawn buggies. The Amish would have happily hung lanterns at night or used gray reflective tape—neither “conflict[s] with their pledge to live low-key and religious lives.” Kentucky would not accept such common-sense fixes. RFRAs ask whether such fixes would serve the government’s needs just as well.

Still, Indiana’s RFRA became “a train-wreck”—portrayed as a “license to discriminate.” 

How did religious freedom become anti-gay? Sadly, religious believers sparked this narrative, saying outside statehouses that they need RFRAs to “stave off … gay rights.”

It is no surprise this political convulsion  is unfolding now. This week, the Supreme Court hears the same-sex marriage cases. Many think the Court will recognize same-sex marriage given the thousands of already legal same-sex marriages. Unnerved, many religious people are asking hard questions about whether “wedding vendors should have a RFRA-based freedom to turn away same-sex couples.” They wonder if religious people will be forced from the public square if they cannot facilitate gay marriages consistent with their faith.

We believe RFRA is the wrong vehicle for navigating the difficult questions at the boundary of religious freedom and gay rights.

Indiana made one thing clear: The landscape of protecting religious liberty has changed permanently. Protecting religious liberty is possible but will involve advancing gay rights, not seeking to defeat them. Utah just did both, without boycott or protest.

Prior to the 2015 legislative session, Utah was no different than any other state on the issue of religious liberties and LGBT non-discrimination. We were polarized, divisive, and even bitter. The federal court ruling striking Utah’s constitutional amendment confining marriage to a man and woman caused deep resentment among religious believers.

The LGBT community deeply resented having a super-majority conservative legislative body that had refused to recognize their concerns. And their concerns were significant. Before the Compromise, Utah, like 27 other states, did not provide protections in statewide law against discrimination based on sexual orientation in housing, hiring, or public accommodations.

Most people on both sides wanted only one thing—for their side "to win." 

On the second day of Utah’s short, 45-day legislative session, the Church of Jesus Christ of Latter-day Saints (the Mormon Church) challenged legislators to craft a compromise protecting both religious liberties and gay rights. They requested fairness for all and for all people to be treated with respect, compassion, and tolerance.

Even after the announcement, many stakeholders begrudged 'the other side' what would essentially be the same protections and rights that they themselves felt entitled to. But despite the task’s seeming impossibility, stakeholders and legislators picked up the gauntlet. It quickly became apparent that legislative negotiations—with all parties participating—are a considerably better vehicle for properly protecting deep-seated convictions and values than waiting for judicial decisions or enacting laws that protect only one constituency.

When the process is inclusive, the legislature has a real shot at brokering bargains that advance the interests of both communities. Utah, arguably the “reddest” state in America, gave more protections to the LGBT community against housing and hiring discrimination than New York. These landmark protections were enacted without erasing the religious character of faith communities.

Noncommercial housing units owned by churches and other religious organizations can give preferences to those of their own faith, and small landlords with four or fewer units may choose their tenants based on personal preferences. Churches, subsidiaries, affiliates, religious schools, and the Boy Scouts of America may make hiring decisions based on religious values, as can small, family-oriented businesses employing fewer than 15 employees. Outside these narrow areas, LGBT individuals gain significant protection against discrimination, vastly expanding scattered municipal protections.

Employers retain the legal ability to establish reasonable employment regulations that reflect their own values, including dress and grooming standards and the use of restroom facilities. At work, employees may, in a non-disruptive manner, express their views and even religious convictions about marriage, family, and sexuality; they cannot be penalized at work for expressing those views outside of work. LGBT people receive identical protections.

Perhaps the hallmark of the Utah Compromise, however, was Utah for the first time requiring county clerks to provide access to marriages for all couples who ask, including same-sex couples. As a duty of the office, the county clerk must designate a willing celebrant, who in Utah may be anyone over 18. Employees working in the clerk’s office long before same-sex marriage may "step off," but gays and straights receive seamless access to marriage; no one is treated differently.

Because of stakeholders’ willingness to come to negotiate, Utah found a balanced solution, squaring religious liberty with LGBT non-discrimination. This solution received overwhelming bipartisan support, reflecting the fact that rights for some need not be acquired at the expense of others. Abraham Lincoln had it right when he declared, “malice toward none and charity for all.” Living out that value moved Utah forward.

Is there more work to do? Absolutely. Avoiding the wholesale closure of adoption agencies in the absence of an exemption deserves careful attention, as other states have recognized. We must continue to find creative ways in the public accommodations arena to guarantee LGBT individuals access to restaurants and other services on the same basis as everyone else. Just as Utah did with access to marriage, we can provide needed access while preserving the ability of religious people to be in the public square. But it will require careful line-drawing and concessions from both sides.

In the end, nobody got everything they wanted in the Utah Compromise. But each side got what they felt was critical. Utah is proof-of-principle that we can call a truce in the culture war pitting gay rights against religious liberty. For other states considering their options, the choice is essentially this: risk a repeat of Indiana or take the more constructive path and protect both communities.

Utah Senate Majority Whip Stuart Adams shepherded the Utah Compromise through the Utah Legislature. University of Illinois law professor Robin Fretwell Wilson assisted the Utah Legislature to frame and enact the Utah Compromise.  

This piece was originally authored on April 30, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/7/12/protecting-religious-liberty-requires-protections-for-all