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Experts: Decision raises religious freedom questions, but Utah law appears sound

SALT LAKE CITY — State leaders don't see a conflict between Friday's Supreme Court decision legalizing same-sex marriage across the country and the religious freedom and anti-discrimination bills Utah lawmakers passed earlier this year.

But it doesn't mean the laws won't be challenged in court at some point.

The Utah Attorney General's Office says it will defend those freedoms and protections just as it defended the state's voter-approved Amendment 3 defining marriage as the union of one man and one woman.

"A creative constitutional lawyer may bring a case, but I feel pretty confident I would be able to defeat that case," said Utah Federal Solicitor Parker Douglas. "I don't want to invite litigation, but it didn't give me any pause to think that the legislation … was in any way endangered by this opinion."

The "meat and potatoes" of the Supreme Court opinion is that states have to issue marriage licenses to same-sex couples and recognize same-sex marriages performed in other states, he said.

Utah lawmakers earlier this year passed legislation that protects LGBT people from discrimination in housing and employment and provides reasonable workplace accommodations for transgender individuals.

Gay rights advocates, business leaders and The Church of Jesus Christ of Latter-day Saints backed the measure.

The bills prohibit employers from disciplining or firing a person for expressing religious, moral and political beliefs, including convictions about marriage, family and sexuality, on and off the job, as long as it's not harassing, disruptive or counter to a company's business interests.

They provide exemptions for churches and their affiliates, such as religious schools, associations and societies and the Boy Scouts of America, which in Utah is largely sponsored by the LDS Church.

The legislation protects the character of faith communities and buildings and allows churches and religious groups to celebrate marriages and do religious counseling consistent with their faith. It also requires county clerks to be the forum of last resort to perform weddings for any couple that qualifies for a marriage license.

Utah's nondiscrimination law, however, does not address "public accommodations," such as whether a florist or photographer must provide services for gay weddings even if it violates their religious beliefs.

'Teach' vs. 'exercise'

Senate Majority Whip Stuart Adams, R-Layton, who sponsored the bills, said Utah is in very good shape. He said he doesn't see anything in the legislation that would be problematic.

"I fully believe the First Amendment will be upheld as we move forward and religions will be protected, especially in regard to marriage," he said.

Adams said although some don't believe the Utah legislation is a model for the nation, he does because it balances religious and LGBT rights in a respectful and positive way.

Some, however, say the U.S. Supreme Court decision poses a threat to religious freedom.

The majority opinion includes a line saying the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to "teach" the principles that are fulfilling and central to their lives and faiths.

Chief Justice John Roberts seized on that wording in his dissent

"The majority graciously suggests that religious believers may continue to 'advocate' and 'teach' their views of marriage. The First Amendment guarantees, however, the freedom to 'exercise' religion," he wrote. "Ominously, that is not a word the majority uses."

Douglas said it's fair to read that as Roberts drawing a line in the sand against the majority justices, saying, "If your cross this line then we're going to have a bigger fight."

"Fortunately, the majority doesn't say that people can't do what Justice Roberts is suggesting," Douglas said.

Bill Duncan, director of the Sutherland Institute's Center for Family and Society, said the court's decision means people have to grapple with a new challenge — protecting the ability of those who still recognize the value of traditional marriage to speak freely about their beliefs and associate with others who do so as well, without having their livelihoods threatened.

"We need strong, persuasive voices encouraging men and women to marry and commit to one another and to the children they rear together," he said. "The problem, however, is that a majority of the justices on the Supreme Court have labeled that view as a form of discrimination."

Though he called the decision a "serious threat" to religious liberty, Duncan said he's not claiming that the sky is falling overnight.

"We don't know how quickly things will happen, but it's clearly an issue," he said.

Sen. Orrin Hatch, R-Utah, said while he opposes discrimination based on sexual orientation, he does not support redefining the fundamental nature of marriage as between a man and a woman.

"But now that the Supreme Court has spoken, I will do everything in my power to ensure that this decision does not infringe on important concerns such as our fundamental right to the free exercise of religion," he said.

Sen. Mike Lee, R-Utah, echoed that sentiment, saying the focus now must be on defending rights of conscience. He and Rep. Raul Labrador, R-Idaho, introduced a bill this month that would prevent the federal government from discriminating against people who believes that marriage is a union between one man and one woman.

No new class

University of Utah law professor Cliff Rosky said the religious freedom issue and the court's ruling are unrelated. Courts don't determine church doctrine, he said, and when someone is teaching their religion, they're exercising it.

"This is a decision about what the government must do, county clerks and courts. It's not a decision about what religions or religious individuals must do, and that's exactly what the majority said," said Rosky, who serves on the Equality Utah board.

Michelle Mumford, assistant dean at the Brigham Young University law school, said the Supreme Court opinion only dealt with marriage and nothing changes in Utah because lower courts have already legalized same-sex marriage.

"The court didn't, other than a throwaway sentence, talk about traditional equal protection and therefore didn't create a new class for sexual orientation," she said. "I think a lot of people were hoping for a new suspect class, but if a court doesn't have to go that far it won't. … But with things like our legislation, that affords protections that wouldn't have otherwise been there."

But she does expect some "religious conscience" litigation in the next few years, particularly related to adoptions, BYU housing and the tax-exempt status of religions. Those things, she said, would now operate under a different legal framework.

"A fundamental right is a fundamental right," said Mumford, who worked as a clerk in the 10th Circuit Court of Appeals in Denver.

While the high court's ruling applies to government not private discrimination, the government extends so far now with funding and such that private entities operating under those benefits are "now kind of suspect," she said.

Religious schools

Questions about religious schools came up during oral arguments in the Supreme Court case in April, but weren't addressed in the court's opinion Friday. Solicitor General Donald B. Verrilli told the justices that the tax-exempt status for churches would be an issue to decide later.

Rosky called Verrilli's statements a disservice to the country and said it's "completely unrealistic" that religious schools would lose their tax status if they don't recognize same-sex marriage.

The Catholic Church, LDS Church and orthodox Jews already discriminate based on sex because they don't allow women to join their priesthoods, he said.

"No one has ever attempted to revoke the tax-exempt status of any of those churches because they discriminate based on sex. Even less would anyone try to revoke their tax-exempt status because they discriminate based on sexual orientation," he said.

Rosky said the Supreme Court opinion marks the end of government discrimination against gay Americans, and any laws that discriminate against them can't survive the ruling.

But it is not the end of private discrimination, which he said will have to be taken up by state legislatures and Congress.

"This is a historic moment for this movement," Rosky said. "But it's not over by a long shot. There's a lot of very challenging work to do."

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