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Drew Clark: A Utah compromise reconciling gay rights and religious freedom?

The passage of a bill barring discrimination in employment and housing with a measure about same-sex marriage sends the message that people of widely different views on these issues can work together collaboratively and find common ground.
The passage of a bill barring discrimination in employment and housing with a measure about same-sex marriage sends the message that people of widely different views on these issues can work together collaboratively and find common ground.
Scott Winterton, Deseret News

As the Utah Legislature closed out its annual session on Thursday, it approved two bills dealing with the emotionally charged subject of gay rights and religious liberties.

Each of the two bills passed in Utah signifies concessions toward another's perspective. In fact, it's being called the "Utah compromise" in news articles by the New York Times and the Washington Post.

The first bill, SB296, barred discrimination against lesbians, gays, bisexuals and transgendered individuals in employment and housing. The second bill, SB297, addressed issues unresolved since Utah was required by federal courts to recognize same-sex marriages.

The passage of both bills — together — sends the message that people of widely different views on these issues can work together collaboratively and find common ground.

That message of collaboration is important in that the first bill has largely been sought by advocates for the rights of gays and lesbians, while the second bill was sought to protect religions, individuals and officials who hold to the traditional definition of marriage.

This collaboration is vital for the nation at a time when issues of sexuality, religion and continued disputes over the definition of marriage are debated in statehouses and before the Supreme Court.

Co-sponsored by Sen. Stephen Urquhart and Sen. Stuart Adams, SB296 barred employment and housing discrimination, but also prohibited employers from firing employees for expressing views about marriage, family or sexuality. As with the federal law upon which it is modeled, SB296 excludes religious organizations and their affiliates from the anti-discrimination requirement, and also does not cover businesses with 15 or fewer employees, and landlords with four or fewer units.

Some in the gay and lesbian community were concerned with the introduction of SB297. The measure required the office of every county clerk to be available to solemnize same-sex unions, but it permited individual county clerks to abstain from officiating at a ceremony to which they object.

But it also includes important protections for religious freedom. Namely, government entities are forbidden from requiring religious officials to ecclesiastically recognize same-sex marriages, or to lend their facilities to same-sex marriages, or to alter their marriage or counseling programs, or to revoke any business or professional license because of "that licensee's belief or the licensee's lawful expression of those beliefs" against same-sex marriage.

There was some back-and-forth last week as particular legislative language within SB297 was modified to address whether any given public official who conducted man-woman marriages would be required to conduct them for same-sex couples, too. Now, though, it is clear that they are not required to do so.

But speaking on the floor of the Senate on Thursday, Sen. Jim Dubakis supported SB297 because "the clerks remain in the same position that they have always remained in the state of Utah: Every single county must provide [a valid marriage license] for every single couple" that seeks one.

"When we originally received the bill [SB297], we were surprised,” said Troy Williams, Executive Director of Equality Utah. "The great thing about this session was that there was this unprecedented amount of collaboration, and [Sen. Adams] heard our concerns."

Those concerns included the requirement that at least one person in the office of a county clerk had the duty to ensure the availability of solemnization of a same-sex marriage.

“We don't like SB297, we think it is unnecessary, but in the give and take of politics, we are still moving forward in these brand new relationships now that all the stakeholders are at the table,” said Williams.

If the agreement for these two bills can be said to be a Utah compromise, it may represent the fulfillment of what noted author Jonathan Rauch wrote in 2010 for The Advocate. Titled “The Majority Report,” he argued that gay rights advocates needed to adjust their tactics now that their cause had been accepted by a majority of the nation.

Speaking to gays about those who do not condone homosexuality, Rauch wrote, “We should not try to use law or social coercion to shut them up or force them to repudiate their views. … The real point of the gay rights movement is not just to secure equality for homosexuals; it is to maximize all Americans’ freedom to be true to themselves — the freedom we were denied.

“The last thing a movement of former pariahs should seek is to inflict the same agony on someone else. For any minority rights movement, the turn to majority status is very easy to miss. With little or no warning, tactics that make sense for an insurgent minority stop working. Militant activists find themselves at sea, their messages no longer resonating, their styles antiquated. ... The burden of toleration — and it is a burden — shifts to us. This is the most difficult adjustment a minority rights movement can make.”

Drew Clark can be reached via email: drew@drewclark.com, or on Twitter @drewclark, or at www.utahbreakfast.com.