The following simple explanation in non-legal terms is provided to help members of The Church of Jesus Christ of Latter-day Saints and others understand the background and the decisions relating to the passage of bills in the 2015 Utah legislative session that bear on important principles of religious liberty and LGBT rights
Background to same-sex marriage
In the summer of 2015, the Supreme Court of the United States is expected finally to rule on whether same-sex couples across the United States have a constitutional right to marry, or whether that question rests with each state to determine.
The Church of Jesus Christ of Latter-day Saints remains strongly committed to marriage between a man and a woman as the only marriage consistent with the laws of God. This commandment and doctrine comes from sacred scripture, and the Church is not at liberty to change it. However, the Church accepts that same-sex marriage is now legal in a majority of the states. Among the public, the issue remains highly divisive and controversial.
Relatively obscured by the same-sex marriage debate has been the pursuit of other rights by LGBT advocates, some of which threaten religious liberties. For example, some have challenged the right of religiously based schools to control their own curriculum. Some have tried to force faith groups to use their religious properties to celebrate same-sex unions. It is coercive measures such as these that have so alarmed people with religious values who wish to live their faith without being threatened. In state after state, advocates for religious liberties on the one side and advocates for LGBT rights on the other have clashed repeatedly. The result has frequently been the failure of either side to advance their cause, and anger and bitterness has been the end product.
In the case of protections sought by the LGBT community from discrimination in housing and employment, the Church has supported such efforts, notably in publicly favoring a Salt Lake City anti-discrimination ordinance in 2009. In late January 2015, the Church held a news conference in which it called for respectful dialogue and an effort to end the divisiveness that has so characterized the debate over the issue in recent years. Specifically, it called upon legislators in Utah and elsewhere to find common ground where reasonable rights could be afforded to all.
Church representatives, working under the direction of the First Presidency and the Quorum of the Twelve, then met with Utah legislators and key stakeholders in an effort to support legislation that enshrines vital religious freedom protections while providing fundamental protections to LGBT people in housing and employment. Bills dealing with nondiscrimination and religious freedom, plus protections relating to marriage and parental rights, resulted and were passed by the legislature on March 11. The Church believes that collective protections in these three bills strike a healthy balance between religious freedom and LGBT rights and achieve the “fairness for all” that was being sought.
Utah passed three pieces of legislation that bear upon treating everyone equally and having “fairness for all”: (1) Senate Bill 296 – a non-discrimination bill that the Church publicly supported and which carefully balances LGBT rights with religious liberty rights; (2) Senate Bill 297 – a bill that provides religious liberty protections on same-sex marriage issues; and (3) House Bill 447 – a bill that gives parents the final say about what their children learn in school about human sexuality.
Religious Freedom Protections
- Churches and other religiously affiliated organizations that own noncommercial housing units can give preferences to those of their own faith.
- Religious schools may establish values-based regulations for student housing.
- Landlords owning fewer than four rental units may choose their tenants on the basis of the landlord’s personal preferences.
- Churches and religious schools may make employment decisions based on religious principles.
- Small, family-oriented businesses (fewer than 15 employees) may hire based on religious and other values-based criteria.
- The Boy Scouts of America is free to make hiring decisions based on its values.
- All employees may express their religious convictions about matters of faith, marriage, family, and sexuality outside the workplace, and inside the workplace in reasonable, non-disruptive ways.
- All employers are free to establish reasonable employment regulations that are consistent with their values, including those relating to dress, grooming, and use of private facilities.
- Religious officials and religiously affiliated organizations cannot be required to solemnize any marriage that is contrary to their religious beliefs, or provide goods, services, facilities or grounds for activities connected with a marriage that is contrary to their religious beliefs.
- No religious official, no religiously affiliated organization and no religious school can be retaliated against, penalized, etc. for religious beliefs, expression or practices regarding sexuality or gender identity.
- County clerks are required to solemnize legal marriages, including same-sex unions, but may designate another willing and qualified person to perform a marriage in their place. Other public officials may perform marriages but are not required to.
- Existing policies issued by the Utah State Board of Education that protect the rights of parents with children in public schools to know about and consent or withhold consent for instruction about “human sexuality” are codified.
Note: Many of the religious freedom protections apply equally to religious and LGBT people – for example, freedom from discrimination, the right to voice one’s views outside the workplace without retaliation from an employer and the right to reasonable and non-disruptive conversations in the workplace.
- Housing and Employment
- LGBT people receive statewide protections from discrimination in employment and housing, without being granted protected class status.
- Employers are allowed to make sex-specific designations for rest room and other facilities, but must make reasonable accommodations for all their employees.
- County clerks must either perform a marriage when requested to do so, or designate another willing person, but provision must be made for all legal marriages including those for same-sex couples.
Most notably, none of the three aforementioned bills addresses the provision of goods and services in the marketplace. This is a complaint that has been voiced both by those in the LGBT community and by their political opponents. It is an area that is simply too divisive to find a middle ground at this time.
The effect of the 2015 Utah legislative action is a compromise in the truest sense. The Church has not altered its doctrinal position on homosexual behavior or what constitutes chastity. It has not changed its position on same-sex marriage, and all faiths now have additional protections for their fundamental right to freedom of religious belief and expression. On the LGBT rights side, a gay or transgender person in Utah can no longer be arbitrarily fired from a job or evicted from an apartment based simply on sexual orientation or gender identity.
In all of this, Church leaders have followed the example of the Savior. While He never condoned sin, Jesus Christ was the first to reach out to the marginalized, the oppressed, those without a voice or those who struggled in one way or another. It is His example that we follow.
- Why is religious freedom such an important issue right now?
Religion in the United States has historically enjoyed constitutional protections. However, the past few years have seen many examples of those religious freedoms being overturned. Some of these changes – but not all – resulted from efforts by LGBT activists to pursue their own protections. If churches and faith communities do not assert their constitutional rights, many of the freedoms we have taken for granted will be lost, including the ability of the Church and its members to live their religion without government interference.
- What examples do we have of the loss of such freedoms?
Examples include religious universities facing threats of losing their accreditation because the school’s religious beliefs run contrary to popular opinion. Some companies face legal consequences or boycotting because the owner guides the company using religious principles. Business and community leaders have been bullied and forced to step down because of their support of traditional marriage. Judges in California can no longer be members of the Boy Scouts of America because of the organization’s stance on gay leaders. Many religious individuals are now being shamed and silenced because their beliefs are no longer popular or in accord with what is considered politically acceptable.
- Why did the Church support Proposition 8 in California?
Proposition 8 provided an opportunity for Church members to stand for the principle of marriage between a man and a woman. The Church is grateful for the thousands of Church members and many others who worked so hard and sacrificed so much for that principle and who made a difference in California affirming marriage as we have known it for centuries. Subsequently, as we all know, that decision of the electorate was overturned by court order. Like everyone else, the Church must accept those court rulings, and it will respect the fact that gay marriages are now legal in two-thirds of the states. However, its doctrinal position remains the same, and we will continue to preach that to those who will listen.
- Has the Church’s tone on gay issues changed since Proposition 8?
The doctrine has not changed, but there has been a clear need for the Church to push back on assertions that its position was motivated by “hate” for LGBT people. As we have become more aware of those with same-sex attraction who have struggled in LDS families for understanding and acceptance, we have encouraged sensitivity and compassion and urged people to act like the Savior. That continues to be our message.
The Church’s “fairness for all” approach seeks to treat others as the Savior would, with fairness and respect. While the Savior cannot condone sin, He also does not advocate hateful speech or taking away someone’s home or livelihood because of his or her choices.
- Is the Church conceding significant principle on the gay issue?
The Church has always stood for compassion and trying to follow the example of Jesus Christ. The Church has worked under the direction of the First Presidency and the Quorum of the Twelve to find common ground where reasonable rights could be afforded to all. While there has been no change in doctrine, the Church seeks to protect individuals, both religious and not religious, against retaliation, firing and eviction. We do not believe individuals should be disparaged or persecuted simply for identifying with the LGBT community. The Church supported Utah Senate Bill 296 because it seeks to protect basic rights of the LGBT community that are not currently protected in areas such as housing and employment. This bill does not support gay marriage.
- What rights did the Church waive to achieve this legislative compromise?
The Church did not waive any of its rights in Senate Bill 296. This bill takes basic rights provided to the LGBT community in Salt Lake City and extends them to the rest of the state of Utah. The Church gained important protections in this legislation, such as the right to operate the Church and its entities, including universities, according to its principles.
- Will Church ecclesiastical officers be protected from performing gay marriages in the state of Utah?
Yes. Most constitutional scholars assume that the U.S. Constitution protects religious leaders from being coerced into performing civil marriages for same-sex couples. However, Utah law now explicitly states that religious officials and religiously affiliated organizations cannot be required to solemnize any marriage that is contrary to their religious beliefs.
- Will the Church support gay marriage if it becomes law?
No. The Church is not sanctioning gay marriage or allowing its ecclesiastical leaders to perform gay marriages. The Church recognizes that it is now legal in most states and accepts the reality in those places as far as the law of the land is concerned. But same-sex marriage will not become a part of Church doctrine or practice.
- How do I explain a balanced approach to my friends, family, coworkers and others?
The Church, as well as several other major religious denominations in the United States, has sought to find a balanced approach where neither religious groups nor LGBT supporters stand on such polarized ground. The Church hopes to change the emotionally charged dialogue to include more considerate discussions where each side will accommodate the other to achieve a balance that both can live with.
By working with both sides of the debate, the Church hopes to set the example of a productive and Christ-like dialogue. While standing firm on principle, the Savior taught us to act with civility and respect for those with whom we disagree. There is room to help those who may be disadvantaged while protecting individual rights of conscience.
- Does this legislation protect the religious liberty and rights of conscience of individuals and families, or does it just cover the Church and its affiliates?
Individuals are protected in several ways. Neither religious people nor LGBT people can be penalized by employers for sharing their views outside the workplace. Neither can they be barred from discussing their views inside the workplace as long as it is not disruptive to the working environment or fundamentally at odds with the purpose of the business.
In addition, small businesses with fewer than 15 employees – which would include most family businesses – are exempt from the legislation. Also exempt are property owners with fewer than four units.
Of course, the legislation covers all churches and faith groups, not just The Church of Jesus Christ of Latter-day Saints.
- What about protections for bakers, photographers or other business owners who cannot in good conscience provide services to same-sex weddings?
Protections are automatically extended for small businesses or property owners as described above. However, the legislation does not address this issue, which is known as “public accommodation.” This remains a highly controversial area. LGBT people fear that overly broad exemptions would allow a server in a fast food restaurant to refuse to serve a hamburger or deny basic services that have nothing to do with religious faith. For their part, some religious people, especially those with expressive businesses such as photography, do not want to be forced to use their creative art to celebrate something (such as a same-sex wedding) with which they fundamentally disagree, especially when there are other businesses nearby who are willing to provide the service. This is a difficult area to legislate, and all parties agreed to leave public accommodation for another time.
- How does the Church justify supporting non-discrimination by others in housing and employment while seeking exemptions for itself?
If the Church cannot maintain gospel standards in its operations and hiring decisions, it can no longer fulfill its mission. The same is true for its affiliated organizations. By its support for this new legislation in Utah, the Church is encouraging protections for LGBT people in housing and employment because it is right to do so, and because those actions do not pose a threat to religious liberty, family or marriage. At the same time, it is asking for fair treatment for all religious faiths in order to prevent further erosion of one of the most cherished freedoms of the U.S. Constitution – namely, that of religious conscience and free exercise.
- What is to stop parts of this legislation being steadily eroded by court challenges or other efforts to limit its effect?
Senate Bill 296 was legislated as a package to carefully balance the legitimate rights of different groups. Inserted into the bill is what lawyers term a “non-severability clause,” which means that if any one part of the bill is ever challenged and fails in court, the entire bill fails. This is an important disincentive to those who might wish to overturn the remarkable work that the Utah legislature accomplished in its 2015 session.