Last Rights in Utah

In his wisdom and sincerity, Governor Spencer Cox has worked hard to set a political tone of understanding, listening, cooperation, and collaboration. Cox has managed to move a tone to a mantra to gospel to a point where everyone in Utah politics these days seems to be singing from the same hymn book. But not everyone. Unfortunately, some people are faking it. Some political players are lip-syncing their parts.

Apropos, we can trace the music and lyrics within that book back to 2015 a much-lauded-lauded “Utah Compromise” that brought together the state legislature, the Church of Jesus Christ of Latter-day Saints, and LGBTQ+ advocates Equality Utah. They had so much fun in 2015, they are at it again. Each partner still lip-syncing the same tune.

The state legislature has passed, unanimously, its own particular “Utah Compromise” version of the Religious Freedom Restoration Act (RFRA). Admittedly, I love the bill. Of course, I do! I pushed for its passage the last time RFRA was attempted in 2014 when I ran Sutherland Institute. I love the idea of every Utahn trying to seize an otherwise lost constitutional right – living according to the dictates of individual religious conscience.

RFRA legislation, whether federal or state, is designed to capture this right lost in America over a hundred years ago. From the 1898 Reynolds decision to today, the United States Supreme Court has volleyed the legal standard for this right back and forth between “laws of general applicability” and “strict scrutiny.” RFRA’s legal standard is strict scrutiny wherein an act exercising a right of individual religious conscience only can be denied by a “compelling state interest” and, even then, with the least intrusion possible.

RFRA is brilliant legislation for people of faith. Not so much for LGBTQ+ advocates. But state Senator Todd Weiler developed a solution to help them, a second “Utah Compromise.” He built into his bill, SB 150, uncodified intent language to address concerns by Equality Utah and to protect laws passed in the first “Utah Compromise” along with another existing law regarding “conversion therapy.” Again, brilliant.

But here is what I don’t quite understand. How can Equality Utah agree, not once but twice, to compromises that only serve to hurt its mission?

In the first “Utah Compromise,” Equality Utah agreed to let the LDS Church legally discriminate against LGBTQ+ people just so that individual Utahns could not. The LDS Church exempted itself from the compromise but not Utahns who might choose to exercise their right of individual religious conscience. The LDS Church called that trade “balanced.” And now, Equality Utah faces an even darker result in Weiler’s RFRA bill.

Rather than sustain the results of the first “Utah Compromise” on behalf of Utah’s LGBTQ+ community, the new RFRA bill would undo it all. The legal protections sought by Equality Utah are actually nonexistent. And when I say actually I mean literally and legally. Equality Utah has been read its last rights in the RFRA bill.

Whoever makes decisions for Equality Utah surely must know the meaning of “uncodified intent language.” It means not law. SB 150 is a “wish in one hand” for Equality Utah. The RFRA bill would expose each law purportedly now protected to an individual’s religious conscience. Of course, courts will settle these cases as they arise. But now, with the imminent passage of the RFRA bill, these cases can arise. A Utah landlord or employer would be able to challenge any idea that would infringe on a right of individual religious conscience. Oh, and kiss goodbye to the ban on “conversion therapy” if desired by the legislature.

Worse still for Equality Utah is that the LDS Church perfectly understands the meaning of “uncodified intent language” and the legal realities in SB 150. The LDS Church knows exactly what RFRA does because, while it aggressively fought for a federal RFRA in 1993, it has stood in the way of a state RFRA for over 30 years, including Senator Stuart Reid’s last effort to introduce an honest and unadulterated RFRA in 2014, orchestrated by the Sutherland Institute.

Now at the desk of Governor Cox, he seriously should consider vetoing it. But only if he truly seeks honest collaboration and compromise. The 2015 “Utah Compromise” allowed the LDS Church and its “balanced” approach to discriminate against Utah’s LGBTQ+ community in the name of religious freedom and, in doing so, exposed its church members to what it refused to accept. This second “Utah Compromise” over RFRA corrects that previous insult to its church members – once again, all at the expense of LGBTQ+ rights in Utah.