In January of 2015, the nation remained in the intense political battle over gay marriage, a topic directly from the culture wars to which Justice Scalia liked to refer. Most expected the Supreme Court to embrace marriage equality, but many feared that a backlash was on the horizon, being engineered by those who had opposed gay civil rights for almost fifty years. While the LDS Church has taken some positions that suggest a change in its views toward civil rights for the LGBTQ, there are also signs that they are still willing to sanction discrimination based on sexual orientation if it can be justified to protect what is being billed as "religious freedom." This new invocation of religious freedom places it as the constitutional value most at risk. Perhaps just one more example of our polarized “culture war” politics, one form of political activism of the religious right has been to favor government acting to support and protect religious thought and action, even by granting religious thoughts and values an overriding role in our constitutional rights.
As we awaited the Obergefell decision, 135 S.Ct. 2584 (2015), where the Court embraced marriage equality, a moment of fresh air was provided in the form of a News Conference called by the Church of Jesus Christ of Latter-day Saints (the Mormon church). The church was announcing that it would support proposed legislation in Utah that prohibited several sorts of sexual orientation discrimination—laws that required non-discrimination as to employment and housing. Official Statement, Transcript of News Conference on Religious Freedom and Nondiscrimination, published Jan. 27, 2015. Considering that the church had defended Colorado’s constitutional decision to ban orientation discrimination laws and praised Anita Bryant’s opposition to such laws back in the 1970’s, this was in many ways a remarkable development.
Since the church’s opposition to gay marriage reflected its patriarchal belief system, perhaps the most gratifying News Conference statement was offered by Sister Neill Marriott, a member of the LDS Young Women general presidency. She gave voice to the church’s new conclusion that “such basic human rights as securing a job or a place to live should not depend on a person’s sexual orientation.” Id. The proposed Utah law quickly dubbed the “Utah Compromise,” did advance the gay rights movement by prohibiting sexual orientation discrimination in important areas. But it also sought to preserve the religious freedom to object to same-sex marriage. Hence the law enacted in March of 2015 exempted religious organizations and the Boy Scouts of America (BSA) from having to implement even the norm against employment discrimination.
More recently the church joined the amicus brief arguing that a Colorado baker held the First Amendment right to refuse to facilitate a gay wedding by supplying a wedding cake to be purchased, displayed, and served.
Once enacted into law, one consequence was that the Human Rights Campaign began to count Utah as one of a minority of states to expressly ban housing and workplace discrimination on the basis of sexual orientation or gender identity. Of course, the church itself had a stake in bringing about a fairer, more reasonable, treatment of the LGBTQ community in the church’s home state, and it was unquestionably hoping to promote a more fruitful dialogue with the LGBTQ community. Despite earning some praise, it remains true that Utah’s compromise approach has been criticized by both conservatives and progressives, with the first objecting to apparently seeking to make amends with the gay rights movement and the second to qualifying the commitment to anti-discrimination by agreeing to religious exemptions. The church itself, and Utah’s national senators, also embraced the view that religious freedom warranted exempting bakery shops from doing business with participants in a gay marriage.
In our polarized political world, it is not difficult to realize that there are arguments—sometimes powerful—for religious exemptions from civil law obligations. And it is perhaps inevitable that the argument from the middle ground is invoked now. Unsurprisingly, then, the authors of the amicus brief signed on by the LDS Church invoked the marriage equality decision of the Court: “Now that the court has protected the liberty of same-sex couples, it is equally important to protect the religious liberties of conscientious objectors,” the brief contends. And the spirit of compromise is never out of place in political debate. Even though the Utah law was controversial for many, it is still true that LGBTQ activists knew that Utah is a conservative state, and so were pleased that they could obtain the protections that were given.
Despite these positives, the church’s efforts to achieve the right balance should be closely scrutinized in light of its intense efforts to oppose marriage equality. One obvious problem is that, even as it recognized the rights to employment and to housing as so fundamental that access should not turn on one’s sexual orientation, the church insisted that the law exempt boy scouts and churches from non-discrimination obligations. It is one thing for boy scout leader positions to be voluntary service opportunities that are extended as church assignments or callings; such situations would not even be governed by anti-discrimination laws.
But it is hard to see the purpose for exempting the BSA from a duty to hire gays equally with other employee candidates. Being boy scout leaders and administrators are not normally considered religious callings. Clearly if it violates a human right to refuse them employment to gays, this remains true despite any religious rationale. Does anyone think that Jim Crow racial discrimination as to employment had no religious rationale? The only fear about hiring gay boy scout leaders would be the apparent certification of the moral acceptability of being gay.
Those who teach law and religion are familiar with the “ministerial exception” to employment discrimination laws, where the Supreme Court has ruled that the Constitution’s religion clauses require that bans on employment discrimination not be extended to the decision of religious organizations making employment decisions as to the church’s ministers. When a church holds the doctrinal view that ministers should be male, a rigorous application of the ban on sex discrimination in employment would involve government forbidding churches from implementing their religions.
In 2012 the Court extended this exception to teachers at private religious schools who are deemed “called” under a religious commission idea and are hence a part of the church’s ministry. However this exception might be conceived and applied to a private religious university, such as Brigham Young, it would be demonstrably inapplicable (to pick an example) to one employed on the ground crew, either at the university or a local church. (A secretary employed in the LDS Church’s large office building, would likewise appropriately be a logical beneficiary of an employment discrimination law.) Why else would there be any need to supply a religious exemption to an employment discrimination law?
It might be doubted whether we should extend protections beyond those ensured by the Constitution’s religion clauses when we have concluded that judging a person’s employment qualifications by reference to their sexual orientation is generally unfair. Every legal commentator I know believes the freedom of religion precludes (and should preclude) requiring churches to reject their own teachings by solemnizing gay weddings. For similar reasons, it is clearly presumptuous for the law to require that churches employ members of the LGBTQ community in positions that are expected to formulate and implement spiritual and religious principles and practices as to homosexuality. But a broad statutory exemption from employment discrimination law is justified, if at all, by reference to a perceived right of religious institutions to make such employment decisions at least based in part on obvious signs—such as co-habiting with a same-sex partner for example—that a potential employee is not committed to living according to the standards of the church.
However we assess giving priority to honoring religious doctrine, even if its application seems to require unfair treatment of some, the benefit of the doubt on the “fairness for all” question should only be extended to religious organizations that manifest a good faith effort at implementing the general idea. A central feature of the public debates related to gay civil rights was the amount of dishonest and vitriolic anti-gay rhetoric that occurred at the marriage debate’s center. The LDS Church spent millions of dollars to support the cause behind Proposition 8 in California, and yet it seemed oblivious to the stark mischaracterizations of the LGBTQ community there. It was urged on grounds that it was the only way to prevent ultimate legalization of both prostitution and pedophilia, and this was just the outer edges of outrageous claims offered.
Part of what it means to propose an approach that offers fairness for all is to be willing to acknowledge when some favoring your “side of the issue” offer contentions filled with animus toward an unfavored group. Three current examples cry out for a fairness for all approach: (1) contemporaneous debates about the appropriate status of gay conversion therapy under law; (2) the attempt by the Trump administration to preclude the rights of transgender individuals to serve in the military; and (3) proposals from the extreme right calling for the rejection of any recognition of gay pride events, especially in the military. Despite the overwhelming evidence that gay conversion therapy, the use of various techniques to help people “switch” from being gay to being straight, simply does not work, religious conservatives contend that there is a First Amendment right to advocate and advertise for the continuation of the practice. Typical is the California bill under consideration that would add to the state’s consumer protection law a ban on advertising that one can change another’s orientation. The proposed law provides economic regulation and says nothing about preaching a theology of forgiveness and change that may be rooted in more hopeful religious thoughts on the possibilities of conversion to heterosexual orientation.
The administration is trying to take us back eighty years, implementing prejudice in the name of military readiness. If we are simply trying to be rational, the Trump idea, rooted it appears in a tweet he wrote—which normally have roots in cable television—would be criticized, studied, and rejected. It could help, even if just a bit, if the LDS church invoked the lessons of fairness derived from the American past, and called for a close and careful look at the evidence of what is at stake. Third, right-wing religious extremist, Tony Perkins, has managed to attack Obama, praise Trump, and call for the abandonment of support for gay pride efforts in the military. Perkins moans about the need for “initiatives taken to end politically correct social agendas,” and contends that our focus must be only on strengthening our armed forces and “restoring America’s military readiness.” The church would do well to embrace fully the vision that we do not further spiritual principle if our efforts are designed to choose sides in the moment’s culture wars, in favor of the views of right-wing extremists.