Mainstream activists are crowing about the “Utah Compromise,” a law signed today that gives employment nondiscrimination protection to LGBT people, but exempts religious organizations from having to comply. It was supported by LGBT activists and, for the first time, the Mormon church. “It’s a landmark,” said the legal director of the Human Rights Campaign.
No, it isn’t. The shift in attitude from the LDS church is indeed a landmark, but this particular “Compromise” could be a huge step backward for women, LGBTs, and others.
First, the law does not address either of the two most contentious issues in LGBT civil rights law: same-sex marriage, and the right to refuse service (“Turn the Gays Away”). This is not really a flaw in the legislation—nondiscrimination is important, in and of itself—but let’s not imagine that it has anything to do with the raft of ‘Religious Freedom Restoration Acts’ being passed across the country.
More importantly, the law’s religious exemption is nearly the same as the one deemed overbroad by activists on the federal level—except for HRC, that is. Employers exempt from the law are all who are “a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader.”
Watch the fine print: that is a huge hole in the donut. Everyone (including the Supreme Court) agrees that churches are exempt from civil rights law when it comes to ministers and those performing minister-like functions (such as Sunday school teachers). But this would exempt everyone working for a religious organization: the cafeteria worker at BYU, the custodian at St. Mary’s hospital. These are not hypothetical cases. They are, instead, wending their way through the courts right now.
Worse, the “religious corporation” exemption is specially tailored to the LDS church, which has vast real estate holdings (including some of the largest malls in America), media companies making billions of dollars per year, and gigantic agriculture corporations. (While the financial operations of these corporations are secretive, their existence comports with Mormon doctrine about secular wealth. It is not a compromise of church ideology, but an expression of it.)
These businesses fund the Mormon church, and employ tens (or perhaps hundreds) of thousands of people. All of whom may be fired for being gay, under the new law.
So why would LGBT organizations support a law in Utah that they have opposed everywhere else?
The answer is that Utah is different. Unlike other states, it already exempts this wide swath of religiously affiliated organizations from employment nondiscrimination laws—due, no doubt, to the influence of the Mormon church. Thus, LGBT people aren’t being treated any differently from women, African Americans, or others. It’s not like a new exemption is being proposed for gays; they’re just getting the same level of protection, or lack thereof, as everyone else.
That’s why LGBT activists could sign onto this law, but it’s also why this precedent is a dangerous one. It’s not hard to imagine the “Utah Compromise” being adopted in other states, and leading to a net decrease in protections on the basis of race, gender, or disability. After all, this was a great compromise, right? The Mormon church now looks progressive, Republicans passed a law protecting gays, and everyone is happy.
So why not level the playing field elsewhere? Just downgrade the protection for women and blacks, upgrade the gays, and everybody’s happy. This would fit the pattern, after all, of women’s rights being eroded while LGBT equality advances.
Now the Utah compromise looks like really bad news.
Of course, the compromise is a step forward in many ways. After leading the fight against Proposition 8, this is a significant turnaround for the Mormon church. I don’t mean to minimize that step, and I commend the church leaders for their moral vision.
It also makes a lot of sense. National support for employment discrimination protection hovers at the 75 percent level. And there’s a big difference between marriage—which, although secular, still implicates traditional family definitions—and nondiscrimination. Going by the polling, it still makes perfect sense for a Utah politician to be against same-sex marriage—and even, somehow, still against homosexuality—but still say that someone shouldn’t be fired for being gay. It’s worth disaggregating these issues, and the Utah law does that.
But it isn’t a model for other states. Let’s hope not, anyway. The law may work in Utah, but anywhere else, it would be a huge step backward for civil rights.