The Church, The State, and Anti-Discrimination

The Legislature in this most recent session dealt with some very weighty and substantial issues.  Interestingly, now that I am home, the one I hear about most is the Legislature's passage of SB296 which added legal protections to housing and employment law for the LGBT community.

When Amendment 3 to Utah's Constitution was overturned by a Federal Judge to allow for same-sex marriages to begin in the state, I wrote an editorial in the Standard Examiner explaining why I believed such a change in policy portended confusion for our legal system.  The response I received from a vocal minority was swift and vitriolic.  I was blasted as a bigot, as ignorant, or as the deceived believer in some imaginary divine being.  The pointed attacks highlighted the consequences of a polarizing culture war that has been waged in our country since the sexual revolution of the 1960's.

In this culture war, we have seen the traditional values that have dictated family governance and creation redefined.  We have witnessed the inversion of traditional gender roles, the view of children as liabilities instead of assets, and the devaluation of marriage as a meaningful institution.  In the most recent cultural battles, we have seen the push to equate same-sex relationships with those of heterosexual ones.

A significant proportion of Utah's population, like myself, belongs to the LDS faith which has historically been very conservative in its views toward traditional marriage and same-sex issues.  It seems perplexing to many that a faith which champions traditional family values would suddenly join arms with those in the LGBT camp to support a broad and seismic policy shift which on the surface seems to fly in the face of the traditional values it has supported.  So with these concerns in mind, let me share with you my experience and understanding dealing with church lobbyists, my own faith, and with the policy found in SB296 itself.

There were rumors on the Hill that a "deal" had been struck between the LDS Church and the LGBT community around the first few days of March.  On March 4th, a hasty press conference was called and L. Tom Perry along with D. Todd Christofferson, Apostles in the LDS Church, explicitly announced the Church's support of SB296.  Troy Williams, President of Equality Utah, was also present and announced his organization's support.  Meanwhile, House and Senate leadership and bill sponsors lined the wall behind the podium in support.

Interestingly, it wasn't until after the press conference that the words of the bill were released to the Legislature to read.  What I read I found quite dismaying.  The new definitions for "sexual orientation" and "gender identity" actually seemed to undefine them.  My immediate concern was that this would lead to litigation and more hand-wringing in the courts over tortured definitions.  Yet, also included in the bill were sweeping exemptions for religious institutions and their affiliates.  It was clear which parties were at the negotiating table when the bill was crafted.  I wondered what this meant for everyone else and questioned the necessity of such measures.

I polled the House Floor the day following the news conference to get a feel for where the bill sat in the minds of my colleagues.  At that time, 44 supported the bill, 14 were opposed (which included myself) and 16 were undecided.  The House had not been involved in any major discussions on this issue and none seemed to be on the horizon at that time.  So, I rounded up a half dozen of my colleagues who had questions and scheduled a meeting with the pair of church lobbyists that visit the Hill periodically.

Our meeting was very frank.  We each took turns asking questions about the substance of the bill and its implications.  The official answer was "The Church doctrine on moral conduct has not changed. But, the Church supports this bill and supports the principle of civic non-discrimination in housing and employment."  Near the end of our meeting, there was also an allusion to the fact that they believed this was the right bill at the right time and that they thought the culture wars would only get worse with time.  Yet, after an hour of serious discussion and questioning, I didn't come away from the meeting feeling much better.  That weekend I wrote my floor speech in opposition to the bill.

The bill then passed the Senate and a House standing committee early the following week.  On March 11 the bill was ready to be debated on the House Floor.  Early that morning, several of us met at an open Conservative Caucus meeting with a Senate sponsor of the bill.  After listening to praises of the bill, I asked the sponsor very directly: "Why this bill? Why now?"  These questions received a very intriguing response.

The Senator felt that the bill is just a piece on a bigger legal chessboard.  At the U.S. Supreme Court right now is a case on same-sex marriage that will determine whether it becomes legal across the United States.  According to the Senate sponsor, he believes there is a high likelihood that same-sex marriage will be made the law of the land.  The Court's ruling is to be announced in June.  If same-sex marriage is made the law of the land for all states, it is believed that the next legal move for LGBT activists will be to push for non-discrimination legislation in all 50 states.  The effort would likely be advanced through litigation in the courts just as the marriage agenda was advanced through the courts.  The Senate sponsor also indicated that he believes that the activist's efforts would likely succeed.  If they did, then non-discrimination laws would be forced upon the states through judicial decree without the input of the Legislature and room for negotiation.

So, with this unsavory legal scenario in mind, the bill sponsors felt that SB296 created enough religious exemptions that it was worth enacting non-discrimination policy now rather than having to roll the dice later on a court decree that likely wouldn't allow religious exemptions.  In essence, this bill attempts to back burn the front lines of a forest fire before the fire overruns and consumes all the forest.

While the explanation was illuminating, I was still unpersuaded by this argument. I spoke against the bill on the House Floor that evening because the process wasn't given proper time to work, I didn't like the vague definitions, and I am opposed to needlessly carving out new protected classes in our laws.  Nevertheless, the bill passed 65-10 and the Governor signed it the following day.

Ultimately, we will find out if this legal maneuvering will pay off.  The Court will rule in June on nationwide same-sex marriage.  Then watch to see how the issue of anti-discrimination is pursued in the various states.  Interestingly, even if we do have SB296 for now, there is nothing that would stop a Federal Judge from overturning it if he felt compelled to do so.  If a Federal Judge can overturn a Constitutional Amendment that was voted into law by the direct will of the people, then overturning a nuisance bill with religious exemptions shouldn't be that difficult either.

In summary, it appears the bills sponsors felt SB296 was better for religious freedoms than risking a tsunami of unfriendly court decrees coming in the future.  If they are correct, I pray for our future.