SALT LAKE CITY — Five years ago, Utah lawmakers negotiated an unlikely ceasefire in the battle between LGBTQ rights and religious freedom, choosing trust and faith over anxiety and fear.
They passed laws expanding housing and employment protections for members of the LGBTQ community and people of faith, making it easier for residents who disagreed on fundamental issues to live and work together in peace.
“It’s very hard to craft something balanced, but we believe we’ve achieved it,” said Republican state Sen. Stuart Adams, who sponsored the legislation, in March 2015.
Policymakers, civil rights advocates and religious leaders felt they’d found a way to avoid years of heartache and costly litigation. They called on other states to follow their lead.
Why didn’t the nation listen?
During the past five years, Utah’s “fairness for all” approach has been discussed often but not embraced. It served as a model for recently proposed federal legislation, but neither Congress nor any state legislature has passed its own version of Utah’s laws.
Instead, the country has become more polarized and debates over LGBTQ rights have grown more contentious. Many advocacy groups now commit more resources to filing lawsuits than sitting at bargaining tables, and policymakers typically avoid fairness for all conversations at all costs.
“Everybody always has a reason to think they’re going to win some other way,” said Robin Fretwell Wilson, who is the director of the University of Illinois system’s Institute of Government and Public Affairs and worked with Utah on its 2015 legislation.
Even so, Wilson, Adams and others haven’t given up hope that Utah’s approach will catch on. It takes time for people to put down their weapons and work together, said Adams, who is now Utah Senate president.
“I can’t tell you how many people I’ve talked to outside of Utah who believe this is the way forward. It will just take some more time,” he said.
Fairness for all
Utah’s legislation on LGBTQ rights and religious freedom developed over seven years of conversation and relationship-building. Leaders from the Legislature, religious organizations and civil rights groups met regularly to share their concerns and try to envision future solutions.
These discussions took place during a period of rapid change. Support for same-sex marriage and LGBTQ nondiscrimination protections was surging across the country, and faith groups faced pressure to change long-held teachings on marriage and family life.
In Utah, the state’s ban on gay marriage had been overturned by a federal judge and several cities and towns had passed new protections for gay residents or religious groups. It was a difficult legal situation to navigate, and state lawmakers felt they needed to step in, Adams said.
“Before we had the statewide policy, we had a patch quilt type of situation across the state,” he said. “For a statewide employer, it was confusing.”
It was also frustrating for members of the LGBTQ community and people of faith, who were anxious about what the future would hold.
By 2015, many Utah leaders believed it was time to take action, and The Church of Jesus Christ of Latter-day Saints, the most prominent religious organization in the state, agreed. Church officials held a rare press conference on LGBTQ rights and religious freedom two days into the legislative session, calling for laws that would promote fairness for all.
“We call on local, state and the federal government to serve all of their people by passing legislation that protects vital religious freedoms for individuals, families, churches and other faith groups while also protecting the rights of our LGBT citizens in such areas as housing, employment and public accommodation,” said Elder Dallin H. Oaks, then of the church’s Quorum of the Twelve Apostles, at the event.
Nearly six weeks later, members of the fairness for all coalition made their move. They introduced Senate bill 296, which created new housing and hiring protections for gay and lesbian residents while also offering some religious exemptions, and 297, which enabled county clerks who opposed same-sex marriage to designate someone to perform LGBTQ weddings in their place.
“We gave each other additional rights,” said Adams, who sponsored the two pieces of legislation.
Both bills passed after a week of deliberation. They’re often referred to as the Utah compromise.
Utah’s fairness for all legislation thrust legislators into the national spotlight, where they were met with both praise and disdain. Many observers applauded the state’s approach to religious freedom and LGBTQ rights, while others argued the new policies would cause more problems than they solved.
“In the aftermath of (same-sex marriage legalization), we don’t need additional laws protecting gay and lesbian Americans. We need laws that protect those who lost,” said Ryan Anderson, a senior research fellow at The Heritage Foundation, to the Deseret News in 2017.
Another common critique was that Utah’s actions were unrepeatable, since few states have a religious group as ingrained in its history and political, economic and social life as The Church of Jesus Christ of Latter-day Saints is in Utah.
Wilson rejected this claim, arguing it was legislators’ willingness to gather a diverse coalition of supporters that made the policies possible, not statements made by the church.
“People like to talk about Utah like it’s a theocracy,” but the church isn’t the only significant stakeholder in the state, she said.
But it’s hard to shake the “unrepeatable” criticism entirely when there’s been little progress made on fairness for all legislation over the past half decade. Wilson, Adams and others have met with lawmakers from 10 to 15 other states, but, so far, no one has been willing or able to follow Utah’s lead.
“It takes time ... for people to better understand the concepts of this balanced approach and focus on the benefits it provides them,” said Idaho Senate President Pro Tempore Brent Hill last year at an Idaho conference on the fairness for all approach.
It also requires a lot of work for states to craft fairness for all legislation that fits their context, said Sarah Warbelow, the legal director of the Human Rights Campaign. You can’t simply copy and paste the text of Utah’s laws.
“The laws passed in Utah were Utah specific,” she said.
The biggest development in the past five years came in December 2019 when leaders from a variety of religious and civil rights groups announced a federal push to balance religious freedom and LGBTQ rights. Together, they produced the Fairness for All Act, which Rep. Chris Stewart, R-Utah, introduced in the U.S. House of Representatives.
“This legislation allows us to settle the legal questions and get back to the business of loving our neighbors,” he said at a Dec. 6 press conference in Washington, D.C.
The Fairness for All Act would add sexual orientation and gender identity-based nondiscrimination protections to federal civil rights laws, while also creating new protections for people of faith. It covers a wide variety of areas of public life, including housing, hiring and adoption services.
“None of this happens unless Utah did what it did,” said Tim Schultz, who is president of the 1st Amendment Partnership and has worked on religious freedom legislation in states across the country.
Schultz and others don’t expect the Fairness for All Act to pass or even get much consideration in the near future, but they still view the bill’s introduction as significant. They want to grow support for the idea that it’s possible to protect gay, lesbian and religious Americans at the same time.
“What we are hoping to do, now that the bill has been introduced, is to start to have a broader public discussion,” said Tyler Deaton, senior adviser at the American Unity Fund, a conservative LGBTQ rights group, to the Deseret News in December.
Congressman Ben McAdams, a Democrat who spent years advocating for LGBTQ nondiscrimination protections while serving in the Utah Senate, said during a recent meeting with the Deseret News editorial board that good conversations are likely the most fairness for all supporters can hope for, at least for now.
“(This) conversation is going to take some time,” he said.
Supporters of fairness for all legislation have mixed feelings about what’s happened over the past five years. They’re excited about the conversations that Utah has inspired, but also frustrated by the lack of concrete action.
“If you would have asked me three months after it happened if other states would do this within five years, I probably would have said yes,” Schultz said. “But a lot of things in politics have surprised me in the past five years.”
He and others didn’t anticipate how difficult it would become to get Democrats and Republicans to work together on any issue, let alone LGBTQ rights. A Deseret News analysis of 140 state-level, religion-related bills considered in 2018 showed that only 19 had bipartisan sponsorship.
“We’re a lot more polarized as a country than we were in 2015,” Schultz said. “The right has moved further to the right on this and the left has moved further to the left.”
Last year, every House Democrat, along with only eight Republicans, voted for the Equality Act, which added LGBTQ nondiscrimination protections to federal civil rights law without creating new religious exemptions. So far, the GOP-controlled Senate has refused to take it up.
At the state level, advocacy groups on both sides of the clash between LGBTQ and religious rights often promote winner-take-all legislation where they have political control and lawsuits elsewhere. Even when state leaders are willing to sit together at the bargaining table, national religious and LGBTQ rights groups can interfere, Wilson said.
“Those national actors have made it much more difficult,” she said.
Warbelow argued that it’s important for such groups to speak up against unfair proposals.
“Requests that have been made in other states are to either treat LGBTQ people differently than members of other protected groups or frankly to lower the bar and treat everyone less equitably,” she said. “That’s just not a fair approach.”
Another complicating factor in debates over LGBTQ rights and religious freedom is that it’s now nearly impossible to avoid discussing places of public accommodations, like bakeries or flower shops, in conversations about LGBTQ nondiscrimination protections, Wilson said.
Utah was able to sidestep this area of the law since conflicting local policies focused on housing and hiring. That’s not the case in other states.
“If you look at other states I operate in, municipal ordinances deal with housing, hiring and public accommodations. And I think people are more aggressive around the issue of public accommodations,” Wilson said.
Lack of urgency
In the face of these obstacles, few policymakers proactively seek solutions to the conflict between religious freedom and LGBTQ rights. Most prefer to wait until some political development — power changing hands in the legislature, a new president, a Supreme Court ruling — forces their hand, Schultz said.
“We’re at a stage politically where these issues are functioning largely as symbols. The right can deliver applause lines about religious freedom and the left can deliver applause lines about LGBT equality,” he said. “People don’t have a sense of urgency right now.”
The problem with this approach is that lawmakers, advocacy groups and others are often bad at guessing when the balance of power will shift, Wilson said.
“Lots of actors in this space feel like they don’t need to worry about it because they’re the ascendant power politically. But my whole point is you don’t stay there,” she said.
For example, in Virginia, Republicans spent years rebuffing offers to help them work on fairness for all legislation. Last year, Democrats took total control of the state for the first time since 1994 and, last month, passed a bill expanding LGBTQ nondiscrimination protections with limited religious exemptions.
“Conservatives tried to make changes, but that just doesn’t work” if you’ve only been engaged on the topic for a few weeks, Schultz said. The bill is currently sitting on the Virginia governor’s desk.
What Schultz, Wilson and other fairness for all advocates want is for people to recognize that there’s much to be gained from embracing tough conversations long before the issue reaches the House or Senate floor. Utah leaders spent years laying the groundwork for Senate bills 296 and 297, as did the coalition behind the federal Fairness for All Act.
“What you don’t want to do is start that process 45 days before a law is likely to pass,” Schultz said.
It takes much longer than that to build up goodwill on both sides, Adams said.
“It’s a very hard lift. It’s very hard to bring everybody on board,” he said.
Five years after standing behind Utah Gov. Gary Herbert and watching him sign the first piece of Utah’s fairness for all legislation into law, Adams remains grateful to everyone who made Utah’s “hard lift” on LGBTQ rights and religious freedom possible.
Passing those laws changed the state for the better, he said.
“There’s been a spirit of cooperation that hadn’t existed before,” Adams said.
Troy Williams, the executive director of Equality Utah, agreed, noting that LGBTQ and religious rights advocates continue to embrace opportunities to work together to find solutions.
“This collaboration opened the door for us to work together on other efforts, like last year’s passage of an inclusive hate crimes law, and this year’s banning of conversion therapy. We are forging a new way forward in Utah,” he said.
Utahns are more supportive of LGBTQ nondiscrimination protections than the residents of 47 other states, according to a 2018 survey from Public Religion Research Institute.
“I hope others can look to us to see how both LGBTQ and people of faith can live together in peace,” Williams said.
Utah’s work on LGBTQ rights and religious freedom should be held up as a model for how to treat your neighbors, Warbelow said.
People were willing “to come together to talk about their fears and their concerns and to understand one another better,” she said.
Despite slow progress on the fairness for all front in other states and at the national level, Adams remains confident that Utah did the right thing. Critics’ doom and gloom predictions from five years ago have failed to come true.
“They thought there would be litigation or challenges to the individuals trying to implement the laws. To my knowledge, there’s been no challenge,” he said. “In fact, legally, the process has been much better.”
Adams has no plans to stop encouraging others to follow Utah’s lead.
“When you do something that’s right, when you do the right thing, eventually, people recognize that. I just believe it will take some more time,” he said.