Major players in the ongoing battle over religious freedom and LGBT rights will meet at Yale University this weekend. They'll discuss the current state of conscience rights and LGBT protections and debate what legislation is needed to balance those competing interests.
Faith leaders and LGBT activists attending the event aren't the only ones in search of consensus since the Supreme Court legalized same-sex marriage a year and a half ago. The meeting is actually a response to in-fighting within the community of scholars, lawyers and policymakers who once worked together as religious freedom advocates.
"We all think … the view that nondiscrimination protections must crowd out every other value is wrong, but we have different visions of the right," said Robin Fretwell Wilson, director of the family law and policy program at the University of Illinois College of Law and one of the meeting's organizers.
Wilson is a leader of what has been labeled the "Fairness for All" camp, working with lawmakers across the country to enact laws, like the Utah Compromise, that balance sexual orientation and gender identity, or SOGI, antidiscrimination laws with exemptions to protect the conscience rights of faith communities and religious business owners.
The other side, populated by prominent scholars and traditional marriage supporters like Robert George of Princeton University and Russell Moore of the Southern Baptist Convention's Ethics & Religious Liberty Commission, rejects SOGI protections, calling for stronger religious freedom laws rather than Fairness for All legislation.
The latter group of religious freedom leaders recently outlined their arguments in a public letter, titled "Preserve Freedom, Reject Coercion." "Proposed SOGI laws, including those narrowly crafted, threaten fundamental freedoms, and any ostensible protections for religious liberty appended to such laws are inherently inadequate and unstable," the letter reads.
It was the most public acknowledgement yet of the gridlock that's taken hold in compromise efforts that have involved LGBT activists, national corporations, religiously affiliated colleges, small-business owners and other groups with a stake in the LGBT rights versus religious freedom debates taking place in state legislatures around the country.
Conflict is inevitable, especially when SOGI law supporters and detractors can make meaningful arguments to support their view, said Tim Schultz, president of the 1st Amendment Partnership. But he, like other religious freedom advocates, are hoping to keep all-out war at bay.
"We're never going to have unanimity. That's just inevitable," Schultz said. "It's going to be a matter of proceeding with internal disputes. I really hope they don't get too divisive."
Religious freedom today
In recent years, the tone and politics of religious freedom debates has changed dramatically. Conscience rights were once a premier bipartisan cause — the Religious Freedom Restoration Act of 1993 fell three votes shy of passing unanimously in both houses of Congress — but has now become a partisan litmus test that carries the divisive labels of bigot and sinner.
Growing tension stems from many sources, including the nature of media coverage, business boycotts and the interference of national advocacy groups in local politics, according to Schultz and others.
For example, controversy erupted in March 2015 when Indiana passed a law offering typical state-level RFRA protections and also expanding on them. Critics took to news sites, social media pages and blogs to decry it, and the governors of states like Connecticut and New York banned administrative travel to the state.
"The Indiana RFRA was absolutely demagogued. It was turned into a horrible anti-gay thing," Schultz said.
National businesses threatened boycotts, upping the stakes of the debate in Indiana and jeopardizing future efforts to craft conscience rights protections.
"You can almost chart the success or ultimate political failure of a religious freedom law by whether national business groups got involved or not," Schultz said.
The risk of business interference and negative media coverage has increased interest in Fairness for All legislation, similar to what passed the Utah Legislature in 2015. However, those behind the Utah Compromise say even a more balanced approach isn't immune from high-profile scrutiny.
"As we went through the process (of drafting the bill,) people on the LGBT rights side would have to check with organizations like the Human Rights Campaign and the ACLU. And at the same time, we were running it by religious freedom scholars and attorneys inside and outside of the state," said state Sen. Stuart Adams, R-Davis.
He added, "The term 'Utah' in Utah Compromise is a little bit understated. It was anything but a Utah event."
Passed in March 2015, Utah's law protected members of the LGBT community from discrimination in housing and employment, while also ensuring the rights of faith groups and government officials with deeply held religious beliefs. It succeeded with the support of the dominant Church of Jesus Christ of Latter-day Saints and other religious stakeholders in the state, as well as representatives of local and national LGBT rights groups.
As Adams noted, the Utah Legislature's work was in the national spotlight, getting praised or panned by people who were often less familiar with the specifics of the bill than with their followers' stance on contemporary religious freedom debates.
There's a "crazy circus atmosphere" surrounding contemporary efforts to protect religious liberty and prevent SOGI discrimination, and it's hurting the people elected or hired to face these issues head on, Schultz said.
"Most people don't realize that state legislatures rarely have their work go on CNN. It's just not part of their world to have what they're doing become nationally controversial," he said. "It introduces an extremely disorienting dynamic."
Stumbling block
Adams now partners with Wilson to educate lawmakers and community leaders about the Utah Compromise, correcting false perceptions and combatting the increasingly polarized political climate.
"As people find out what we've done and truly understand it, they seem to embrace it. But there are some who still have a problem with giving additional (SOGI) protections," Adams said.
Ryan Anderson, a senior fellow at the Heritage Foundation who signed the December letter, is one of the most prominent SOGI critics. He disagrees with the logic of Fairness for All legislation, arguing that now is not the time to turn sexual orientation and gender identity into protected categories under the law.
Instead, policymakers should prioritize passing laws that ensure the rights of traditional marriage supporters, Anderson said. He compares today's political landscape to the aftermath of the Roe v. Wade ruling, when Congress amended health care laws to protect the conscience rights of doctors and other health professionals who objected to abortion.
"In the aftermath of the (same-sex marriage) decision, we don't need additional laws protecting gay and lesbian Americans. We need laws that protect those who lost," he said.
Even when SOGI laws include religious exemptions, as Utah's did, they cast belief in traditional marriage in a negative light, Anderson said. Fairness for All legislation defines discrimination as a refusal to hire, house or serve people from the LGBT community or participate in a same-sex wedding ceremony, and then exempts the actions of some religious groups.
"The concern here is that, over time, the rule will swallow the exemption," he said, citing a 2014 Washington, D.C., City Council decision to remove carve-outs for religious schools from a previously passed SOGI law.
But recent research shows religious objectors fare better in court when they can point to faith-based exemptions to statutory protections instead of just the First Amendment.
Attorney Gene Schaerr, who unsuccessfully defended Utah’s constitutional ban against gay marriage, analyzed 18 cases involving private, religiously motivated conduct that have been argued before the Supreme Court in the past 30 years. He found that religious freedom claims were sustained in 11 of the 12 instances when the case centered on a statutory protections, a 92 percent success rate. That rate fell to 50 percent (3 of 6) when cases were based on the First Amendment.
“If judges are going to sustain an exception to a generally applicable law — that’s what most religious freedom claims involve — they’re generally much more comfortable doing that when the exception is required by a recently enacted law as opposed to the Constitution,” Schaerr said.
He added that a similar pattern applies to the four cases in that group of 18 that were related to sexual mores, including LGBT rights and contraception. Religious objectors won both of the cases based on statutory protections, but lost one of the two centered around the Constitution.
Wilson acknowledges that the legislative landscape of SOGI laws sometimes put religious freedom at risk.
"The old SOGI laws, passed before marriage equality, were very tilted," she said.
However, Wilson and Schultz both said a spotty SOGI record in the past shouldn't put the brakes on future Fairness for All work. One of their main contentions with the December letter was that it applies Anderson's concerns to all SOGI laws, not just those passed without any regard to religious freedom.
"Among the legally trained, the idea that a SOGI law is a SOGI law is a SOGI law is not accepted," Schultz said. Twenty-one states have some form of SOGI nondiscrimination protections in place today.
Deeper engagement
Top religious freedom scholars saw the storm over SOGI laws coming. The arguments for both sides have developed over more than a decade of studying local, state and federal laws, attending conferences and writing books and papers. And their viewpoints continue to evolve.
"It took me about a year from the first time I heard this (Fairness for All) idea to the time I came to believe it, and I work full-time in the area of religious freedom," Schultz said.
As they've worked to draw others into their camps, religious liberty experts have tried to pass on this same measured approach, providing context and history rather than a brief stump speech.
"We think this is a conversation worth having civilly and thoughtfully," Anderson said. He's met with Wilson, Schultz and other Fairness for All folks, explaining his concerns even as he entertains their arguments.
In the wake of same-sex marriage legalization and in response to mounting momentum for LGBT rights, the National Association of Evangelicals and the Council for Christian Colleges & Universities saw the value of exploring efforts to balance LGBT nondiscrimination measures and religious liberty. Over the last 16 months, they've met with around 200 Christians whose jobs potentially intersect with SOGI policies, such as the heads of religiously affiliated colleges that have been targeted by LGBT activists who oppose schools that ban same-sex relationships or transgender facilities but still have access to government funds.
"The goal was to solicit input from and the wisdom of these leaders. We wanted to hear their thoughts and concerns and offer support," said Shapri LoMaglio, CCCU's vice president for government and external relations.
She said that the format of the meetings enabled people to step aside from polarization and political bargaining and to try to decide what was best for them and their institutions.
Participants aren't "motivated by the pragmatic choice. They really want to do the right thing theologically," LoMaglio said.
However, opportunities to promote deep engagement with the Fairness for All debate may be slipping away. In advance of the 2017 legislative season, SOGI laws have been thrust into the spotlight once again, motivating advocacy groups to win over a bigger chunk of a divided American public.
It's becoming more likely that people will form their opinion based on a blog, an op-ed in the local paper or a public statement, like the December letter, than by personal study of what SOGI policies entail, Schultz said.
"There's a much larger set of things that people need to grapple with. Having the debate in public is kind of inevitable, but I think it's a large body of data" you have to process, he said.
On the horizon
Few people would have predicted that Utah would emerge as a groundbreaker in Fairness for All legislation. In addition to public urging by leaders of the LDS Church, policymakers were pushed to address the divisive issue because of the rapid spread of nondiscrimination ordinances at the municipal level, which had created confusion for statewide businesses.
"Thirteen or 15 municipalities had antidiscrimination protections in housing and employment," Adams said.
This situation is becoming more common across the country, as LGBT rights advocates move the needle in their favor at the local level, Schaerr said.
“Most opponents of Fairness for All legislation ignore the reality that the LGBT community has succeeded and continues to succeed in enacting strong LGBT protections in large and small cities throughout the nation,” he said.
These SOGI statutes often pass without religious exemptions, Wilson said. Additionally, they create discrepancies from city to city that are hard for business owners to sort out. Both of these outcomes can motivate state lawmakers to take action on a statewide Fairness for All bill, said Wilson, who is currently working with around eight state legislatures.
Another reason for the recent surge in interest in SOGI laws and Fairness for All legislation is the election of Donald Trump. Some argue that he and a Republican-controlled Congress will be able to reassert religious freedom as a core priority, while others note that LGBT activists may be driven to look for compromise opportunities.
"The prospect of one or more conservative appointments to (the Supreme Court) might incline the gay community toward preemptive political compromise," wrote Jonathan Rauch, a senior fellow in governance studies with the Brookings Institution, in an email. "For the same reason, if religious exemption folks think the court will shift right … they might feel less need to compromise."
Even these hesitant predictions are hard to trust because it's nearly impossible to pin Trump down on religious freedom and LGBT rights, he added.
"He is popular among evangelicals; he has spoken more inclusively about LGBT people than have previous GOP nominees; and he fancies himself a dealmaker," Rauch said. "I doubt he'd lead on compromise, but maybe he'll back or facilitate one."
In the face of growing polarization and a shifting political scene, religious freedom scholars on both sides of the SOGI debate said they're committed to keeping the lines of communication open.
"It's not a question of whether we are able to sit together and discuss these issues," Anderson said. "We want an America in which liberty is protected for everyone. We disagree on what sort of policies will best advance that goal."
Both camps find common ground in mutual dissatisfaction with the recent U.S. Commission on Civil Rights report about conflict between religious freedom and SOGI protections. Commissioners sided with LGBT protections over conscience rights, painting a bleak picture of efforts to find compromise.
For Wilson, the report was as frustrating as the December letter from SOGI opponents. They both reject the notion of peaceful coexistence.
"If people from the deep left and deep right descend on a state and both say the other deserves no protection, this isn't going to work. The reasonable people in the middle get drowned out," she said.
Her hope is that the Yale meeting will refocus the discussions of SOGI policies and Fairness for All laws onto what's happening on the ground, toning down the "Get off my planet" rhetoric that's cropping up more and more.
"People could be sitting there saying, 'Look at this good thing that did happen.' Why don't we try that?" she said.