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Op-ed: SB296 comes in the American tradition of live and let live

First Published      Last Updated Mar 09 2017 09:44 pm

Something momentous happened in Utah last week that, if enacted, will reverberate throughout the nation. In the Antidiscrimination and Religious Freedom Amendments (SB296), the Utah Legislature called a truce in the culture war pitting gay rights against religious liberty.

SB296 is the first effort in the U.S. to extend protections to LGBT people after a state same-sex marriage ban was struck. It combines sorely-needed LGBT nondiscrimination protections in housing and hiring with reasonable protections for faith communities.

Months ago, federal courts struck Utah's same-sex marriage ban. Many applaud that decision; others chafe. For many, what happens with marriage is an existential fight going to the core of who we are as a people.




After a bitter loss, the human impulse is often to dig in. Utahns could have legislated protections for believers, while doing nothing for LGBT persons.

Utahns chose the better path: a right and decent approach that protects both communities.

How does SB296 do that?

The LGBT community receives hiring and housing protections, just like those taken for granted by most people. I would not want to be fired for my gender, and an LGBT individual should not be fired for her sexuality, either. SB296 places this protection in statewide law, extending to all Utahns the protections some Utah municipalities currently give.

These protections build on Utah's existing nondiscrimination laws forbidding discrimination on the basis of gender, race and other characteristics.

Let's make this concrete. Burke Wallace, a California prep school football coach, says he was fired from coaching after he casually told colleagues that he married his male partner. Some school administrators and parents said having a gay football coach was a "bad idea." Absent SB296's protections, Wallace's employer could legally fire him. That just isn't right, and SB296 would prevent it.

Existing law recognizes that churches have special hiring needs. To dictate that churches may not discriminate on the basis of sex, for example, would be to say to the Catholic Church that they would have to employ women as priests. As needed as nondiscrimination protections are, no one intends to use them to wash out the religious character of religious communities.

SB296 accomplishes a balancing act between nondiscrimination protections and religious liberties by placing faith groups outside the bounds of state dictates. Thus, existing law simply exempts religious sole corporations, like the LDS Church, giving them much-needed autonomy. Existing law also leaves aside wholly-owned corporations, the classic example of which is Brigham Young University.

Right now, Utah law exempts small employers with fewer than 15 employees, giving mom-and-pop businesses the flexibility to operate without excessive regulation and permits these businesses to hire family members without fear of lawsuits.

In each instance, these specific exemptions acknowledge that it would be inappropriate to reach such businesses. This is not a license to discriminate; it is a decision not to regulate.

Now consider the additional protections afforded to faith groups in the law extending basic protections to the LGBT community. SB296 excludes for the first time religious affiliates, like  Deseret Book, LDS Family Services and other entities that do not have a parent-subsidiary relationship.  It excludes educational institutions, associations, and societies — text directly out of Title VII, one of our foundational civil rights laws. In Utah, this means that at least 110 private, parochial schools, like Rowland Hall and Challenger School, receive this protection.

SB296 also recognizes that faith-based youth organizations play a huge part in how we raise our children and provides a specific carve-out for an organization in Utah synonymous with church and family: the Boy Scouts.

All of these organizations fall outside the definition of employer, receiving critical assurance that they can operate tomorrow as they do today.   

SB296 recognizes that workplace discrimination affects more than LGBT people. Religious people need protection, too. It says people can't be fired for their lawful activities outside of work, whether rallying for Equality Utah or donating to Prop 8. It balances these rights against employers' needs. Employers may bar all talk of politics or religion, but, if such speech is allowed, religious speech is on the same playing field.  

SB296 represents the best of the American tradition: live-and-let-live. By sheer force of good will, the Utah Legislature has ensured that one person's rights need not come at the expense of others. If Utah, the second most religious state in the country, pulls this off, it is powerful evidence that this unremitting culture war may finally end.

Robin Fretwell Wilson is a professor of law at the University of Illinois College of Law and an expert in religious liberty. She assisted in the drafting of SB296.

 

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