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Utah anti-bias, religious rights law could be model for other states

SALT LAKE CITY — Utah's new law expanding anti-discrimination protections for gays and lesbians along with religious freedom protections for all could be something other states struggling with the same issues could build on.

The potentially landmark legislation Gov. Gary Herbert signed shortly after it overwhelmingly passed the Senate and House came as the lines between the LGBT and religious communities were becoming more stark.

"LGBT people, including me, were losing faith that compromise was possible," said Jonathan Rauch, a senior fellow at the Brookings Institution, a public policy think tank in Washington, D.C.

At the behest of religious litigation groups, he said, states were passing one-sided bills essentially telling gay people "more rights for us. No rights for you. Get off the planet."

And then in a conservative, heavily Republican Utah where nondiscrimination legislation was going nowhere, the state's dominant religion stepped in and all but challenged the Legislature to find a balance.

The Church of Jesus Christ of Latter-day Saints made a "commanding demonstration" that its January statement was more than just a press release, Rauch said, adding it couldn't have come at a better moment.

Legislators, gay rights advocates, church representatives, lawyers and others went to work, ultimately producing SB296. At an unprecedented news conference, the LDS Church publicly endorsed the bill.

The bill adds sexual orientation and gender identity to Utah's anti-discrimination laws for housing and employment, clarifies exemptions for religious institutions and their affiliates and provides protections for religious expression.

Rauch said it's important to the rest of the country because of where it happened and how it happened, noting the bill passed the GOP-controlled Legislature with heavy margins.

"If it had squeaked through with lots of protests that would have sent a different message," he said.

On Monday, the Brookings Institution and the Deseret News will host two panel discussions in Washington, D.C., on gay rights, religious exemptions and the "Mormon proposal."

One panel will feature former Utah Gov. Mike Leavitt, Salt Lake County Mayor Ben McAdams and University of Utah law professor Cliff Rosky and will focus on the events in Utah. Deseret News editor Paul Edwards will moderate the panel.

As a Democratic state senator, McAdams tried unsuccessfully for several years to pass a statewide anti-discrimination bill. Rosky, who also serves as Equality Utah board chairman, worked on SB296, which was passed and signed this session.

The second panel will look at the issues from a national perspective. Panelists are Human Rights Campaign legal director Sarah Warbelow, Orthodox Union Advocacy Center executive director Nathan Diament and University of Illinois law professor Robin Fretwell Wilson. Rauch will serve as the moderator.

Wilson worked extensively with Utah lawmakers drafting SB296 and another measure SB297, which establishes policies to ensure county clerks' office marry or provide someone to marry anyone who qualifies for a marriage license.

The bill includes broad protections for religious beliefs, exercise and conscience. It also guards against retaliation against business and professional license holders for expressing religious views outside the workplace.

"Utah, I really do believe, is a pivot because it’s the first state where you had (same-sex) marriage before you had to come behind and do sexual orientation and nondiscrimination protections," she said.

The LDS Church also expressed support for SB297, saying it's a balanced and fair approach to marriage and religious freedom protections. Herbert said he's reviewing the bill and is "optimistic" about signing it.

The bill has drawn criticism because it allows county clerks to not perform weddings for gay and lesbian couples, though it makes the office the forum of last resort.

Warbelow said the legislation isn’t necessary, and called the spirit behind it "deeply disappointing."

"Individuals who apply for jobs that serve the public should be prepared to serve the whole public equally and without reservation,” she said.

Wilson said both sides came together in good faith to advance the rights of gays and lesbians while allowing the religious community some "step-offs," especially when it comes to acts such as marriage that people of faith hold sacred.

Even widely hailed SB296 isn't satisfactory to everyone.

Melissa Proctor, a Utahn who taught religion, politics, and ethics at Harvard Divinity School, said the bill covers only the most basic civil rights in employment and housing, fundamental protections that should be "unthinkable" to withhold.

"It's unfortunate that any legislation would be needed to secure such basic civil rights at this point in history," she said. "Offering minimal protections like these to arguably the most marginalized population in the state seems like a bad trade for some of the broadest religious exemptions in the country."

Some in the LGBT community say Equality Utah conceded too much in these negotiations, but a big victory for them was the inclusion of gender identity in addition to sexual orientation, which serves to protect transgender individuals, Proctor said.

Utah Eagle Forum president Gayle Ruzicka says the Legislature didn’t do enough to protect religious freedom. While the law has protections for churches, she said, it falls short of extending them to individuals.

Edwards said he doesn't know if critics have carefully studied the legislation.

"Utah’s religious freedom protections, in the context of anti-discrimination, are considerably stronger than any protections enacted elsewhere — but they present themselves without provocative language," he said. "They come in the form of concrete thresholds, or in the form of codifying case law, rather than pontificating about principles."

Wilson said Utah took an "amazing" step forward.

"Did it get everywhere? No. Did it get everything done? No," she said. "But you can leave some of that debate for another time."

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