Being fair to all is a hallmark of Utahns. We value charity and compassion for our struggling neighbors. Unsurprisingly, these important values derive personal meaning for many Utahns from their deeply held religious beliefs. Equally unsurprisingly, only partisan politics could twist this wonderful social chemistry into something contentious and antagonistic.
The political battle over a proposal to add “sexual orientation” and “gender identity” to Utah’s existing non-discrimination law exposes the nature and difficulty of conflicting rights in a free society. Decent people don’t typically discriminate against anyone, but politics often do. The conflict over these new non-discrimination proposals would challenge and subordinate the first freedoms of all Utahns — the freedom of speech, freedom of conscience, freedom of association and the right to make a living — in favor of special rights for a few.
Nineteen states now have laws offering same-sex marriage or civil unions. All these states, and a few others, also have statewide non-discrimination laws. These laws prioritize sexual rights over rights of conscience. Not only is there a direct relationship between basic non-discrimination laws and same-sex marriage laws, there is a direct causation between even basic non-discrimination laws and lawsuits and complaints against people of faith and conscience. In states where these basic non-discrimination laws have passed, formal legal complaints by the hundreds have been filed against people of faith for abiding by their personal conscience and simply disagreeing with partisan activists.
The circumstances of a female college student in Washington forced to share a girls locker room with a 45-year-old naked man — evidently a “gender identity” case of a woman trapped in a man’s body — find their legal roots in a statewide housing and employment non-discrimination law. The same conflict would occur for private landlords catering to student housing surrounding Brigham Young University.
Proponents of a statewide non-discrimination law in Utah insist that adding “sexual orientation” and “gender identity” to the list of protected classes in matters of housing and employment wouldn’t have such harmful effects. They claim that only protections under “public accommodations” create these problems.
The facts — and an honest look at them — belie those claims. The fact is that the simple inclusion of “sexual orientation” and “gender identity” in Utah law challenges freedom of conscience and religion, and could subordinate those freedoms to sexual rights. The whole purpose of any non-discrimination law is to protect innocent people against discrimination, not to violate the rights of others. Existing protections for race, national origin and disabilities make perfect sense because they don’t violate the rights of other people. A statewide non-discrimination law on the basis of “sexual orientation” and “gender identity” would inherently violate the rights of other people.
There is a valid reason churches received an exemption from the Salt Lake City non-discrimination ordinances four years ago. It’s not that churches look to discriminate against anyone. It’s because the very nature of these types of laws create immediate and real legal conflicts for many people of faith who happen to disagree with the sexual politics of others.
There is no difference between the legal conflicts created by non-discrimination laws limited to housing and employment and those created by laws expanded to public accommodations. The Salt Lake ordinances do not extend to public accommodations but even so, churches required a legal exemption. And what person of faith in their right mind wouldn’t seek an exemption when their conscience and faith are subordinated to someone else’s sexual politics?
A statewide non-discrimination law limited to housing and employment still subordinates an employer’s at-will employment status and a landlord’s private property rights — in addition to matters of conscience or faith — to one person’s sexual identity.
A basic statewide non-discrimination law might sound reasonable on its surface, but it’s not. It gives special rights to some people at the expense of other people. And that kind of “reverse discrimination” is patently unfair. That is the unavoidable conflict at hand.
Paul Mero is president of Sutherland Institute.