SB 296 Includes Protections for Individuals and Represents the Best of Utah Politics

Aside from the continual shadow (or bright sunlight, depending on your perspective) of Obamacare, which seems to somehow continue to dominate political dialogue nearly five years after its enactment, the big news at the Utah legislature for the past week has been the SB 296, the new anti-discrimination and religious liberty comprise.

HB 296 was announced last week with much fanfare — as you might suspect any bill supported by both Equality Utah and the LDS Church might be.  It’s almost certain to pass, but nonetheless it’s generated quite a bit of angst on the fringes of both political parties (though more so, I sense, on the far right than on the far left).

As is often always the case with political discussions that get heated, most of the commentary you’ll read is poorly informed.

For those who haven’t heard, SB 296 would add sexual orientation and gender identity to the list of protected classes in the existing Utah Anti-Discrimination and Fair Housing Acts, while providing accommodations for religious liberty.

One of the principal complaints I’ve seen about SB 296 from the right is that it will provide exemptions to religious organizations but decline to provide equivalent protections for individuals — a claim that, essentially, the LDS Church has thrown its members under the bus with a bill designed to safeguard its own existence.

I don’t think this is a fair critique.

First, you have to understand that SB 296 uses already existing vehicles as its means of enforceable anti-discrimination protections — and each of these laws already has carve-outs for individuals.

For example, the Utah Anti-Discrimination Act (UADA) only applies to employers who employ an average of 15 employees during the 20-week period before the assertion of any claim.  Additionally, it already allows for hiring that might otherwise be discriminatory by a religious organization or affiliated religious educational institution (cough, BYU, cough), by an employer when giving preference to members of his or her immediate family, and in accordance with an existing seniority system.  Three of these are carve-outs for individuals themselves, and one is an already existing carve-out for a religious organization identical to those that so many are complaining about with SB 296.

The Utah Fair Housing Act (UHFA) has similar carve-outs already existing and designed to protect individuals.  It’s provisions prohibiting discrimination in the sale and rental of real property don’t apply to families selling or renting a home, provided they own the home in their own name, they own less than 4 homes/rental units, and they don’t use discriminatory advertising in their listing.  The UHFA also provides protections for nonprofit organizations and religious educational institutions (cough, BYU, cough), again an already-existing institutional carveout like the ones generating so much angst now.

In short, the UADA and the UHFA are not laws aimed at individuals.  They are aimed at businesses.  By their threshold requirements and other provisions, these laws already have protections for individuals built into them.

Second, its important to realize that SB 296 does, in fact, add other protections designed to safeguard an individual’s right to exercise and express his or her religious convictions:

  • It would provide express protection for individuals when individuals are acting in their capacity as a religious leader.
  • It would specifically allow employees to express their religious beliefs in a non-disruptive, non-harassing manner, on equal terms with any other religious expression allowed by an employer (meaning that an employee could not be singled out for his religious beliefs), unless the expression of those beliefs was in conflict with the business interest of the employer.
  • It would prohibit an employer from firing or otherwise discriminating against an employee for that employee’s religious expression outside of the workplace.

SB 296 also has a non-severability clause with respect to the additions to both the UADA and UFHA, which means that, in the event any of the religious liberty protections are diluted or struck down by a court, the whole SB 296 anti-discrimination structure would be struck down at the same time.  This means that, while the anti-discrimination/religious liberty compromise could, in theory, be struck down judicially, it could only be legislatively altered.

I understand that many on the right do not want any additions to the protective classes identified in the UADA and UFHA or want those acts repealed entirely, but those paying attention realize that ship has already sailed.  National same-sex marriage is coming, as are legislative protections with respect to housing and employment discrimination, and you would be hard pressed to negotiate a more favorable compromise with respect to religious liberty than SB 296.  Furthermore, by getting out in front of the issue, Utah’s provisions can be touted and used as a model nationwide for religious accommodation in the context of anti-discrimination.

To the extent people are looking for a anti-discrimination law with a blanket exemption for individuals, they are being unreasonable.  SB 296 is the stuff of compromise, and, frankly, it’s the best that religious liberty could hope for.

The narrative from the two sides in the ongoing fight over same-sex marriage has always been, “We’re not trying to muzzle your churches,” on the one hand, and, “We don’t care what you do in the privacy of your own home and bedroom,” on the other.  With SB 296, each side puts its money where its mouth is and, as a result, will have to stomach some distasteful (to them) behavior.

In my opinion, the sponsors of the bill, as well as the stakeholders who participated in its drafting, deserve a big round of applause.

SB 296 is exemplary of the best of Utah and should be passed and signed in its current form.

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