Sayeth the Transplanted Lawyer:

From where I sit, it’s fantastically obvious that anti-discrimination law at both the Federal and state levels ought to include rather than exclude sexual orientation as a protected class. We’ve protected sexual orientation by statute in California the same way we’ve protected race and sex and religion since 1992, with no apparent adverse consequences to either our economy or our citizens’ ability to enjoy religious freedom. Congress should pass ENDA. Further, Congress should amend Title VII to include sexual orientation as a protected status, and not rely on the courts to use questionable language and logic games to shoehorn “sexual orientation” into “sex” or “marital status.” If Congress does this, it can write in protections for religious freedom, and not have to rely on courts to do that, too.

This has happened already in Utah, whose body politic is dominated by no less conservative a religious institution as the Church of Jesus Christ of the Latter-Day Saints, found a way to reconcile itself with the inevitability of same-sex marriage. But bringing Republicans around to the notion that such a legislative scheme represents the best of all remaining possible worlds for social conservatives may take some work: it will require people of good faith who disliked the Obergefell ruling and see a need arising from it to protect religious liberties to accept that the perfect cannot be allowed to be the enemy of the good — and it will require people of good faith who, like me, rejoiced at Obergefell to concede that sincerely religious people are not going to give up their religious beliefs that same-sex marriages are strictly legal matters which their consciences forbid them from blessing.

It’s been interesting watching the “what next” debate light up on Twitter focusing around polygamy (goosed on by Freddie deBoer who openly advocates it, but mostly by conservatives who are itching to be able to say “I told you so”), when the more fertile ground really is, as Burt says, anti-discrimination law. Perhaps it’s because polygamy is simple to talk about, and a lot of people don’t even know that anti-gay discrimination is actually still legal. The dude in Tennessee probably thinks that his sign is okay because Freedom of Religion, when in fact it’s okay because of the absence of anti-discrimination law that most people probably assume is in place. Indeed, the whole debate in Indiana was built around the premise that their RFRA was allowing forbidden discrimination when said discrimination was not actually forbidden.

And even I have been wrong on this in the past. When I lived in Deseret, the legal counsel of my employer was fired when the company’s president discovered that he was gay. This came right after the rest of the staff had been let go. He was the one they felt could do the job of what used to be a department of three, but apparently only if he preferred the intimate company of women to that of men. And when this happened, I was really quite stunned to find out that it was perfectly legal according to Deseretian law. The company’s president didn’t even need to find an excuse. Gay? Fired. Even in Deseret, and even among my Mormon coworkers, the firing was largely seen as deeply unfair and wrong. The marijuana firings were understood and defended. Somebody may have defended the company’s right to do it (I can’t recall), but nobody defended the decision to.

And with this in mind, I was not surprised when Utah passed the law that Burt refers to. The LDS Church itself signed off on an employment-housing anti-discrimination law in Salt Lake County some time back. It’s going to be pretty hard to find prolonged, vocal opposition to those things. Except, that is, right after people are licking wounds after being slapped down in court and as some Republicans are looking for ways to retaliate. In the same way that the law in Utah was delayed by the ruling that allowed gay marriage, so too will anti-discrimination law. No matter, though, as I don’t expect it to take long.

One of the main reasons that Utah’s law passed is that it stuck to what mattered. My main concern will be the desire to, as Burt states, simply add sexual orientation to the protections offered on the basis of race or religion. That might be a desirable aim, but Utah would have no law right now if they’d insisted upon it. Maybe it should be illegal for Tennessee hardware guy to put up such a sign – it is certainly worthy of condemnation either way – but it also strikes me as not being nearly as fundamentally important as employment, housing, and other essential and emergency services. And for what it’s worth, the Human Rights Campaign agrees with me. As public attitudes change, as Burt and I both believe they will, we can revisit and simplify it.

When I bring this up, a lot of people are bothered by the symbolism of actively allowing discrimination in all but the most obvious of cases or, really, anywhere that we disallow discrimination against racial minorities. I understand the impulse, though I also see different situations as different (in the same way we allow certain gender discrimination where we don’t allow racial discrimination). But most importantly, we should not let our feels and symbolism trump things that will actually make lives better for gays and lesbians that live in states where complete non-discrimination just isn’t possible. Utah passed a law, and North Dakota was on the road to passing a law until the freakout over Indiana sent everybody running for cover. Progress can be made, state by state.

From here it is tempting to take it to the federal level and say “Screw North Dakota and the law we didn’t pass. We can make their law do what we want. Well, we certainly can, but I don’t think that’s particularly advisable. At least, not yet. Because there are things we can make them do and things we want them to do that we cannot make them do. Playing too firmly on the first set of issues makes progress on the second more difficult. We can make Tennessee Hardware Guy serve gays, but we cannot make him put out a sign that says “Proceeds from sales to gay customers will go to [anti-gay group].” Nor can we prevent them from putting up signs like the one that angered the lesbian couple in Canada to the point that they did not want to do business with that establishment.

Some things can’t wait for consensus. The rights and privileges of marriage were – at least arguably – among them. I firmly believe that anti-employment and anti-housing (including hotels and whatnot) discrimination are also among them. But at a certain point after that, I think it actually does more good for gays who live in Utah to have limited but locally supported protections than federally imposed ones that breed resentment. My calculus on this may change in the future (as it did – or came close to doing – on court-imposed SSM), but that’s where we are right now. Let’s get the essentials passed. And as minds and hearts change, further laws can be passed (or, even more optimistically, rendered unnecessary).

Category: Statehouse

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