By Thomas J. Whitley
The anti-discrimination bill just passed in Utah is being hailed as the Utah Compromise and as a model for other conservative states. The bill bans discrimination against gay, lesbian, bisexual, and transgender people in employment and housing. What has been considered most newsworthy by most outlets is the role that the Mormon church played in the bill’s passage. They have been lauded by many for their ability to compromise on such protections for LGBT people, especially after they fought so hard for the passage of California’s Prop 8 in 2008. The New York Times called this “an extraordinary moment for the Church of Jesus Christ of Latter-day Saints.”
One cannot help but be struck, though, by the church-state implications of this bill. Indeed, it was the “blessing of the church leaders” that “turned the tide in the Legislature.” The power that the Mormon church has in Utah is evident even in the passage of this anti-discrimination bill, and the church’s opposition to same-sex marriage should lead us to ask what they are getting in return. The first clue comes in the name of the bill; these are “antidiscrimination and religious freedom amendments.”
The bill states that an employer with 15 or more employees is subject to the rules set forth in this bill, but lists the exceptions to what counts as an “employer.”
(ii) “Employer” does not include:
(A) 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;
(B) any corporation or association constituting an affiliate, a wholly owned subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or
(C) the Boy Scouts of America or its councils, chapters, or subsidiaries.
The Mormon church can simultaneously oppose same-sex marriage and many rights for LGBT people and support this bill because they are not actually required to adhere to these rules. The bill expressly states that religious organizations, etc. (as described above) are not prohibited from discriminatory housing practices on the grounds of “religion, sex, sexual orientation, or gender identity.” The bill further enacts protections for individual employees who oppose homosexuality and same-sex marriage by protecting their speech and actions so long as they are “reasonable, non-disruptive, and non-harassing.” The bill does not, however, define “reasonable,” “disruptive,” or “harassing.”
We are right to ask, I think, what good anti-discrimination legislation does if certain individuals and groups are exempt from these rules simply by virtue of their classification as “religious.” Indeed, if we as a community, state, or country feel strongly enough that people should not be discriminated against on the basis of their gender, religion, sexual orientation, or gender identity, then why would we allow anyone to discriminate on those grounds? The obvious answer seems to be that this “Utah Compromise” allows the Mormon church to have its cake and eat it too. That is, the church gets to look progressive and as if they are on the side of LGBT rights while still opposing same-sex marriage and ensuring that they will still be allowed to discriminate as they see fit.
The “Utah Compromise” reminds us of the power of classification. By being classified as a religious organization, its affiliate, etc., or simply as a quasi-religious organizations (e.g., the Boy Scouts of America) under Utah law, an employer/group is still able to discriminate. Moreover, these classificatory schemes are presented as natural. “Of course,” many will say, “religious groups are different. We should not force them to go against what they believe.” Yet, we are arbitrarily reifying certain justifications for certain beliefs and actions. In other words, a “secular” employer who is an outspoken atheist that opposes same-sex marriage because it is “unnatural” would not be granted the authority to discriminate against potential LGBT employees or customers. As soon as the reason for discrimination is couched in religious terminology, though, the discrimination becomes sacralized and legitimate.
Though Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention opposes the bill and does not think it will be a model for other states, I think it will be for one simple reason. It gives conservatives cover to push a particular narrative that makes them look progressive and caring while still allowing for discrimination in many realms. This is, as much as anything, an anti-resistance tactic. That is, this bill allows those in power to co-opt the narrative that many are using against them for their own benefit in a way that still exposes the LGBT community, and potentially other communities as well, to erosion of rights. Indeed, even the Human Rights Campaign has voiced support for the measure.
The Utah Compromise, for all its practical shortcomings, is a rather savvy political move. It relies on the naturalized distinction between “religious” and “non-religious” to co-opt the narrative of the oppressed in a manner that presents the Mormon church and Utah Republicans as supportive of LGBT rights yet allows them to continue their “God-ordained” discrimination.