SB 296, SB 297, Religious Freedom, and Nondiscrimination

My readers may know two things about me, based on statements in public meetings, private conversations, or what I wrote at this blog’s predecessor, LocalCommentary.com.

First, for a long time I have supported local and state legislation to prohibit discrimination in housing and employment based on actual or perceived gender identity or sexual orientation.

Second, the level of my confidence in the Utah legislature is perennially low.

These two themes came together last year at about this time, as the Utah legislature sat on its hands and refused even to debate last year’s version of a non-discrimination law (SB 100). I wrote:

It’s an extraordinarily discerning litmus test, where Mormon Utah Republicans are concerned. It tells us where people land on the freedom-versus-using-my-power-to-compel-universal-righteousness spectrum, which sometimes seems to be the primary axis of Utah politics.

Beyond the moral principles on which society generally agrees, and finds suitable for regulation by law, I believe that sinners as I define them and sinners as you define them deserve political, economic, and religious freedom. I believe that a person’s violation of someone else’s sectarian principles (or his own) should not jeopardize the roof over his head or his means of earning his daily bread, assuming he doesn’t work for an organization with a primary mission to promote those principles. . . .

I . . . believe that the greatest and most constant threat to free and healthy society and good government in Utah is the subset of Mormons who think the law is a suitable tool for imposing their principles on all people — and who think that this is somehow a proper exercise of their religious freedom. (“I Am Unfit for the Utah Legislature,” February 5, 2014. See also “Rights and Rites and Right and the Rights” and “Tonight in American Fork.”)

When the Utah Legislature took up the topics of nondiscrimination and religious freedom this year, I was skeptical of their competence to produce wise legislation on such a topic, and skeptical of their good will, too.

Then — this week — I finally had a chance to read SB 296, a bill entitled “Antidiscrimination and Religious Freedom Amendments.” It passed the Utah Senate the other day by a large majority. Reportedly, the Utah House will vote on it today. Yesterday it cleared the House Judiciary Committee with a 9-2 vote.

My initial suspicions notwithstanding, this is a fine bill. I will note some highlights here, then look briefly at the subject of a related bill, SB 297, “Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality.” Some form of it may pass in the few days which remain in this year’s legislative session. With apologies for the spoiler, it’s more sensible than I expected, too.

Notes on SB 296

What It Prohibits: This bill adds sexual orientation and gender identity to the list of characteristics on the basis of which discrimination is prohibited in matters of housing and employment. The rest of that list is familiar: race, sex, color, national origin, religion, age, and disability. Large portions of this 35-page bill simply add the two new categories to that list in various parts of the Utah Code. The interesting part is elsewhere, mostly in the definitions and exceptions.

Exceptions: If views at one extreme are offended by adding sexual orientation and gender identity to the list at all, views at the other extreme are equally unsettled by the idea that anyone should be allowed to treat the subjects of sexual orientation and gender identity with anything less than demonstrative, public acceptance of everything.

To judge by recent arguments by a few (not nearly all) LGBT advocates, considerations of citizens’ religious freedom should be wholly subordinated to the LGBT community’s desire to be and to feel fully accepted by all people in all places.

To judge by a few (not nearly all) opponents of all things LGBT, the law is the arm of the Lord, and we know what the Lord wants, and it’s not you people.

Fortunately, cooler heads seem to be prevailing on both sides. The proposed legislation exempts the following as to employment:

• religious associations, religious societies, religious educational institutions, and religious leaders when acting in the capacity of religious leaders;
• affiliates, wholly-owned subsidiaries, and agencies of religious organizations;
• the Boy Scouts of America;
• businesses with fewer than 15 employees within Utah; and
• any business where a particular sexual identity or gender identity is “necessary to the operation” of or is “the essence of the employer’s business.”

As to housing, the exemptions are more complex, but include approximately the following:

• buildings with fewer than four units, if one unit is owner-occupied, as opposed to simply being rented as a business venture;
• dwellings owned or operated by, or under contract with, nonprofit or charitable organizations, or religious organizations or their affiliates;
• dwellings where “discrimination is by sex, sexual orientation, gender identity, or familial status for reasons of personal modesty or privacy, or in the furtherance of a religious institution’s free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution”; and
• private clubs not open to the public, including fraternities and sororities associated with institutions of higher education, provided the housing facility is not operated for a commercial purpose.

Definitions: According to the proposed statute:

“Gender identity” has the meaning provided in the Diagnostic and Statistical Manual (DSM-5). A person’s gender identity can be shown by providing evidence, including, but not limited to, medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person’s core identity, and not being asserted for improper purposes.

So Max Klinger wouldn’t qualify, and the last clause excludes men who just want to hang out in women’s restrooms (and vice versa), which apparently concerned some legislators.

(Fortunately, the legislation doesn’t try to list the genders, unlike Facebook, which now offers over 50 choices, including many synonyms, not to mention fill-in-the-blank.)

Here’s another key definition from the statute:

“Sexual orientation” means an individual’s actual or perceived orientation as heterosexual, homosexual, or bisexual.

I take “perceived” to mean that I cannot be fired simply because I like Broadway tunes and have a boss who thinks that means I’m gay (which I do — and he doesn’t — and I’m not).

Dress and Grooming Standards: The bill explicitly states than it may not be interpreted as prohibiting employers from adopting “reasonable dress and grooming standards” which are otherwise legal, “provided that the employer’s dress and grooming standards afford reasonable accommodations based on gender identity to all employees.”

Sex-Specific Facilities: Concern over restroom, shower, and locker room facilities ranges, depending on the person, from a legitimate concern to a scare tactic employed to discourage consideration of this and similar legislation. It is a complex problem, which I suspect will require further attention. Here is what this statue says:

This chapter may not be interpreted to prohibit an employer from adopting reasonable rules and policies that designate sex-specific facilities, including restrooms, shower facilities, and dressing facilities, provided that the employer’s rules and policies adopted under this section afford reasonable accommodations based on gender identity to all employees.

That doesn’t fit all possible situations or resolve all possible concerns, and the interpretation of “reasonable” leaves room for differing opinions and judgments, which will make some uncomfortable. But this seems . . . reasonable.

Free Expression: There is in the statute some enforced tolerance for expression on related themes in the workplace, including “religious or moral beliefs and commitments,” provided that expression is “reasonable, non-disruptive, and non-harassing,” and allowed by the employer on equal terms with similar types of expression, unless the expression is in direct conflict with the essential business-related interests of the employer. Again, this seems . . . reasonable.

Free Expression II Employers are prohibited from discharging, demoting, terminating, or refusing to hire, or retaliating against any person “for lawful expression outside of the workplace regarding the person’s religious political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.” Reasonable.

Protected Class: One common argument against this sort of legislation is that it will create a “protected class” of people who have special rights not available to the rest of us. On one hand, the nature of constitutional law is such that we cannot dismiss this thought out of hand — though it is a topic for another day. On the other hand, I’m not sure how much force an appellate court might give the bill’s declaration that it is not to be construed as creating a protected class for any purpose other than housing or employment.

On the face of it, the idea that this legislation would create a protected class seems inverted. I see it as acknowledging that individuals who are or may be perceived as L, G, B, or T actually already belong to the universal protected class in our political philosophy and jurisprudence: humans. Or, if you prefer, citizens. The Declaration of Independence declares us to be created equal (before the law), and endowed by our Creator with certain rights which are inalienable (look it up — and yes, Jefferson spelled it “unalienable”). Its language does not include exceptions for gays or others whose very existence offends some folks.

Nonseverability: Most legislation includes a severability clause, declaring that if some portion of the bill is overturned by a “court of last resort” (i.e. the US Supreme Court, or a lower court if SCOTUS refuses to hear an appeal), the rest of the statute remains in force. This bill does exactly the opposite, for an explicit reason:

This bill is the result of the Legislature’s balancing of competing interests. Accordingly, if any phrase, clause, sentence, provision, or subsection enacted or amended in this chapter is held invalid in a final judgment by a court of last resort, the remainder of the enactments and amendments of this bill affecting this chapter shall be thereby rendered without effect and void.

Note that “this chapter” refers either to employment or housing — each separate from the other, because they are in separate chapters of the Utah Code — so the housing part of the statute could theoretically be invalidated while the employment part remained intact, and vice versa.

This is the nature of political compromise: We agree in advance that, if what you wanted is struck down but what I wanted isn’t, neither of us gets what we wanted. In context, it makes sense.

However, individuals and factions on both sides who cannot bear compromise will find in this nonseverability clause an invitation to challenge any provision which offers the slightest hope of being overturned, in order to invalidate the whole. This, too, is the nature of things, and in this case I don’t see any way around it.

There are more details we could discuss, but I set out to write a long blog post, not a book.

I earnestly hope that SB 296 passes and becomes state law. It’s not just an adequate bill; it’s a fine one.

Notes on SB 297

I intended briefly to analyze SB 297, a much shorter bill, which focuses on public and religious officials officiating at weddings. It passed the Senate earlier this week, but the House substituted a different bill (a common and generally appropriate step in legislation), which I have not yet had time to compare carefully to what the Senate passed (which was itself a substitute for the bill originally proposed). So I’ll offer some general comments instead.

While I have opposed same-sex marriage on the grounds that it simply isn’t marriage — a much larger discussion I have attempted elsewhere — it is presently the law of the land and, for good or ill (perhaps both), is becoming part of the generally accepted morality of the nation, based on our only formal means for measuring such things, our political and judicial processes. Therefore:

I believe that public officials whose primary duties include officiating at weddings should do so, regarding of their personal beliefs — and yes, I include same-sex weddings. If they cannot or will not fulfill the duties of their offices, they should resign or be dismissed.

That said, we are in a period of difficult and complex transition. I can see the merits of some of these possible compromises:

• If their office is elective, and same-sex marriage was not one of the office’s duties when they ran and were elected for their current term, they might be excused from performing same-sex marriage ceremonies until the end of their terms. Their successors will not be thus excused, and in the meantime the county must provide someone who can and will officiate.
• If there are multiple officials at a county clerk’s office (for example) who can officiate at weddings, and one who is willing in the case of same-sex weddings can always be made available, I could see not requiring others to participate against their consciences — either in perpetuity or for a transitional year or two.

There are other public officials, including mayors and the governor, who are permitted by law to officiate at weddings, but for whom it is not a primary duty. I would be comfortable with a range of possible compromises here:

• If they choose not to officiate in some (e.g. same-sex) marriages, they may not officiate in any marriage. This is the approach of SB 297, as passed by the Senate, but with this exception: they would still be allowed officiate at the weddings of family members.
• Because it is not a primary duty, they may freely elect to perform or not to perform any marriage ceremony they wish, for any reason or no reason at all.
• Anything reasonable between these two positions.

Each of these possible compromise positions will sorely displease someone, whether it’s the ideologue who naively believes that public officials’ first or only duty is to their own views, not to the people at large, or the tyrant who is not satisfied simply to be able to marry the person of his or her choice, but feels compelled to force someone to officiate who does not wish to — precisely because he or she does not wish to.

We have been speaking of public officials, who have a direct and statutory duty to the public. Where religious officials (acting as such) are concerned, I simply believe that no member of the clergy should ever be required by law to officiate at any marriage ceremony to which he or she is opposed for any reason — whether it’s same-sex marriage, or thinking a properly licensed bride or groom is too young to marry, or (regrettably) one or both of the parties’ race or other attributes. Nor should a church be compelled to provide a venue or an officiator.

When a couple is licensed to marry, they have a right to expect the county to provide someone to officiate. There is no right to compel a specific official, for whom solemnizing marriages is not a primary duty, to do so against his or her will. And there is certainly no legal right to compel a member of the clergy to do so — or to force a religious organization to provide an officiator or a venue.

We’ll talk more about larger issues, such as competing notions of freedom, another time. Meanwhile, SB 296 is currently awaiting floor time in the Utah House . . .