Fair or foul?

WASHINGTON—Oregon bakers Aaron and Melissa Klein found themselves amid a national controversy after they declined to participate in a same-sex wedding in 2013. The Kleins, parents of five children, paid a $135,000 fine last year and subsequently paid with the loss of their business—a process that became final this year.

The Kleins’ story is one of the more severe examples in a growing list of similar events: Catholic charities discontinued adoptions in Massachusetts after the state said it must place children with married same-sex couples; a Georgia counselor lost her job after referring a lesbian couple to a peer; Gordon College received extra accreditation scrutiny because of its prohibition on homosexual practice; a Kentucky county clerk spent time in jail after she refused to issue a marriage license to same-sex couples; the city of Atlanta fired its fire chief after he called homosexuality a sin in a devotional book written on personal time.

These types of stories inserted religious liberty into the 2016 presidential election, and they all have one thing in common: They occurred in jurisdictions where authorities added sexual orientation and gender identity (SOGI) to nondiscrimination laws or policies. Twenty-one states have approved some type of SOGI law, and many municipalities have done the same.

Over the last two years, an idea has gained traction within some Christian advocacy circles: Support nondiscrimination legislation that codifies rights for both LGBT and religious communities at the same time. In recent months Leith Anderson, president of the National Association of Evangelicals (NAE), and Shirley Hoogstra, president of the Council for Christian Colleges & Universities (CCCU), became the faces of this approach, conducting a series of events with Christian leaders to promote openness to the concept of “Fairness for All.”

That persuasion effort became more difficult as more than 75 religious leaders issued a statement Dec. 14 opposing SOGI laws in any form. They argue that SOGI laws violate privacy rights and freedoms of religion, conscience, speech, and association and that any religious protections appended to such laws are “inherently inadequate and unstable.”

The signatories include dozens of leading religious conservatives such as Princeton’s Robert P. George, Trinity Evangelical Divinity School’s David Dockery, Southern Baptist leaders Albert Mohler and Russell Moore, author Eric Metaxas, and several top Catholic bishops: “We write on behalf of millions of Americans who are concerned about laws that undermine the public good and diminish this freedom for individuals and organizations alike.”

Shapri LoMaglio, CCCU’s vice president of government relations, said it’s premature to draw conclusions about legislation that doesn’t yet exist: “We would ask people to keep an open mind to see what the process ultimately yields.”

IN 1994, former U.S. Rep. Gerry Studds, D-Mass., introduced the Employment Non-Discrimination Act (ENDA), a bill that prohibited employment discrimination based on sexual orientation while exempting religious organizations (except for their for-profit activities). The legislation garnered 137 co-sponsors, but it never received a vote.

Right-leaning Christian advocacy organizations remained uniformly opposed to ENDA for the next two decades, as lawmakers from both parties filed similar legislation in every Congress but failed to put a bill on the president’s desk.

In 2014, the Supreme Court’s Burwell v. Hobby Lobby decision changed the state of play. After the court ruled the Christian-owned company did not have to include abortifacient drugs in its employer-sponsored health insurance plans, the Human Rights Campaign and other LGBT advocacy groups announced opposition to ENDA’s religious exemption. They said religion had become an excuse for discrimination.

That set the stage for four key events the next year. First, in January 2015, the Mormon church dropped a bombshell: It supported—and wanted passed—ENDA-style legislation with religious protections. Republican state Sen. Stuart Adams, a Mormon who had helped pass Utah’s 2004 constitutional amendment defining marriage as between a man and a woman, championed legislation (SB296) that became the only statewide SOGI law enacted in the last five years.

The legislation didn’t address public accommodations but prohibited housing and employment discrimination against LGBT persons. While the religious exemption included churches, religious organizations, those who issue marriage licenses, and private speech, it did not protect on-the-job speech or Christian business owners with more than 15 employees.

The second key event came two weeks later: Indiana lawmakers passed a state Religious Freedom Restoration Act that was almost identical to what 19 other states and Congress passed previously—but gay rights groups said it was a license to discriminate. Cue national controversy.

The third event came a month later: During oral arguments in Obergefell v. Hodges, Justice Samuel Alito asked U.S. Solicitor General Donald Verrilli if a university that opposed same-sex marriage could lose its tax-exempt status in the same way Bob Jones University did for opposing interracial dating. Verrilli’s response: “I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that.”

The fourth event: In June, the Supreme Court issued a landmark ruling legalizing same-sex marriage in all 50 states. In his majority opinion, Justice Anthony Kennedy said dissenting Americans would still have the right to disagree.

“We take Justice Kennedy at his word,” Rep. Raúl Labrador, R-Idaho, told me after introducing the First Amendment Defense Act, a bill that would prevent the government from taking any “discriminatory action” against a person or organization for its beliefs on marriage. The CCCU, already eyeing the Utah model, didn’t publicly sign on to the legislation, although it later said it supported the bill

Meanwhile, for the first time in two decades, no one filed ENDA. Democrats instead introduced the Equality Act, sweeping legislation that would extend LGBT rights to all corners of society with almost no religious exemptions.

“You could look at the 114th Congress as when the legislation became more polarized,” said LoMaglio, an attorney who began working on religious freedom issues for the CCCU in 2010. “It split apart what was for a long time put together.”

THE MORMON CHURCH is the biggest driver behind ongoing efforts to enact “Fairness for All” legislation. Other leading proponents—who are meeting members of Congress and state lawmakers around the country—include Tim Schultz, president of the 1st Amendment Partnership; Robin Fretwell Wilson, a University of Illinois family law professor; Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance; and Michael Wear, former head of evangelical outreach for the Obama White House. One CCCU president, Indiana Wesleyan University’s David Wright, testified this year before the Indiana legislature in favor of a proposed SOGI law with religious exemptions.

Supporters believe that, in a post-Obergefell context, it’s only a matter of time before a court rules on public access issues for LGBT persons. They cite an analysis by attorney Gene Schaerr that shows religious liberty claims more often succeed at the Supreme Court when they are based on statutory protections. Schaerr found that over the last three decades the high court ruled in favor of religious liberty statutes 92 percent of the time (11 of 12), but the odds dropped to 50 percent (3 of 6) when claims were based only on the First Amendment.

“What religious liberty protections did we get in Obergefell?” asked state Sen. Stuart Adams. “[If] somebody litigated a housing or employment issue and the court ruled in favor of the LGBT couple, how many religious liberty protections would be issued?”

Critics call the concept “fairness for a few,” because the Utah legislation left some unprotected—including counselors, adoption lawyers, and day care centers—and there’s no reason to believe federal legislation would cover all First Amendment freedoms. They worry that conservative groups are only negotiating with themselves: While the Human Rights Campaign, the nation’s largest LGBT advocacy group, signed off on the Utah bill, the organization said it does not see it as a blueprint for other states. The liberal Center for American Progress called the law “dangerous.”

Proponents point to opposition from the left as evidence this is a reasonable compromise, but critics say supporters are creating a steppingstone to the endgame: complete loss of accreditation, licensing, grants, and tax-exempt status for Christian institutions. They also note that all the cases against religious adherents are from the half of the country with SOGI laws, so federal legislation would imperil the other half. “SOGIs are giving legal teeth to go after people because of their views on marriage—not Obergefell,” said Kellie Fiedorek, an attorney who works on SOGI issues for Alliance Defending Freedom (ADF).

SOGIs are giving legal teeth to go after people because of their views on marriage—not 'Obergefell.'

Opponents also reject the concept of an exemption for religious belief. John Stonestreet, president of the Chuck Colson Center for Christian Worldview, signed the statement of opposition and said Fairness for All would create a new class of citizens on the basis of behavior, not identity: “It creates of those of us who disagree a new class of ‘exception,’ which amounts to institutions of conscience wearing a scarlet B (for bigot) in the public square.”

The “T” in LGBT may pose the biggest obstacle. Fairness for All opponents say allowing transgender persons to access the restroom, locker room, or homeless shelter of their choice violates the right to privacy, and causes more irreconcilable differences than sexual orientation.

THE STAKES ARE HIGH for all involved. Religious institutions contribute $1.2 trillion annually to the U.S. economy, according to a 2016 study by Georgetown University researcher Brian Grim, who found Americans paid $73 billion for faith-based education in the 2011-12 academic year.

The Verrilli-Alito exchange received widespread coverage in the Christian community and led some Christian colleges and universities to begin preparing for life after federal dollars (which mostly come indirectly through student aid). Many believe Verrilli’s remarks are the biggest reason millions of evangelicals overcame their concerns and helped deliver the White House to Donald Trump.

Those opposed to Fairness for All thought support would wane after Trump’s victory and subsequent nomination of Betsy DeVos—a school choice advocate with deep ties to the Christian Reformed community—as education secretary. But proponents see this as the opportune moment for a legislative deal, since the LGBT community might have more reason to negotiate.

On Capitol Hill, conservative lawmakers are faced with a difficult task: holding together a coalition of groups whose unified support will be important on a range of upcoming issues. Fractured alliances could threaten to derail unrelated policy priorities.

The disagreements over Fairness for All have extended beyond policy to how the discussion has evolved. While multiple Christian university presidents expressed gratitude and respect for Hoogstra and LoMaglio spurring discussion of SOGI laws, some also said the debate itself needs more fairness.

Member presidents noted the nine CCCU-NAE events did not include Greg Baylor, ADF’s lead higher education attorney, who opposes Fairness for All. Baylor has represented CCCU schools at the Supreme Court, continues to work with many of them directly, and until this year served as an unpaid consultant to the CCCU board.

“We have not had full and extensive conversations about this, but my hope is that we will at our [presidents] meeting in January,” said John Jackson, president of William Jessup University and one of 14 CCCU presidents who signed the statement of opposition. “Last year it was a very one-sided conversation.”

Several presidents said the CCCU membership is still divided on the issue and many are taking a wait-and-see approach. They expect robust conversation when presidents gather next month in Washington, D.C.