A few states are protecting religious freedom

Two state legislatures are trying to bring some order to the legal chaos created when the U.S. Supreme Court imposed a new marriage definition on all 50 states. Kentucky, where embattled Christian county clerk Kim Davis resides, is not one of them.

Utah and North Carolina have moved to protect freedom of conscience, though countermoves from federal agencies such as the Equal Employment Opportunity Commission are creating jagged edges of legal complexity.

In Utah, conservative Mormons and LGBT activists hammered out a deal called the Utah Compromise, which became effective in May.

The Utah Compromise avoids what happened in Kentucky by making a list of clerks who have no religious objection to issuing marriage licenses to same-sex couples or presiding over their nuptials. Couples can choose from that list of willing participants, thereby avoiding a nasty confrontation at the clerk’s front desk.

“It’s working extremely well,” said State Sen. Stuart Adams, who helped craft the Utah Compromise.

The law attempts to head off state legal battles. It is limited in scope, giving LGBT people protection from discrimination in employment and housing, with an accommodation for religious organizations. Churches, state agencies, and nonprofit religious organizations are included in that. But florists, bakers, pizza makers, and business owners who deal with the public are not included.

Robin Fretwell Wilson, a professor of law at the University of Illinois who also helped draft the Utah Compromise, said both LGBT advocates and people of faith got something out of it.

“We know that every faith tradition says something about sexuality. If the church, however, whichever church we’re talking about—Catholic, evangelical, protestant, whatever it is … cannot speak to marriage and sexuality, they have nothing left,” Wilson said. “What happened with the Utah Compromise is they say, ‘We get it. There’s no reason for some kid to be fired from Red Robin for going to a gay rights parade. Because at the end of the day, he serves hamburgers. Who cares? But we’re going to be cognizant of the fact that religious communities are wanting to maintain their religious character even in the face of that change.’”

North Carolina also passed a law, much narrower in scope than Utah’s, to protect religious liberty. County officials who issue marriage licenses can decline to do so if it violates their religious beliefs and still keep their jobs. But they must decline all requests for licenses, not just for same-sex couples.

“Some of these folks have been in these jobs [since] before same-sex marriage was recognized anywhere in the world. They got kind of cold-clocked by social change. It’s a good and decent thing to do to keep them from being fired,” Wilson said.

But a policy just adopted by the Equal Employment Opportunity Commission (EEOC) presents a new wrinkle in the law. The EEOC says “sex discrimination,” which used to mean men and women, now includes sexual orientation.

Matthew Kacsmaryk of Liberty Institute said policies like the EEOC’s are another step in a decades-long process to remove the first three pillars of marriage law: permanence, exclusivity, and procreation. No fault divorce laws undid permanence. Serial relationships and cohabitation undid exclusivity. And contraception and abortion unhinged sexual relations from marital procreation.

Now, the fourth and final pillar of marriage law is crumbling: the complementarity of gender differences.

“Traditionally and legally, we define sex according to chromosomes … That’s typically how we define sex. That’s how we ordered our marriage laws and made certain presumptions of paternity in the family code. All of that is cast into disarray if you declare sex irrelevant to marriage,” Kacsmaryk said.

Anywhere a definition of “family” or “sex” or “spouse” exists in the law, we now have conflict. And that’s why Kascmaryk thinks the Utah Compromise is giving up too much, too soon: “My disagreement is prudential. I think it’s a bad idea, particularly in deep red states like Utah and Texas, primarily for the problem of the protected class. Once a protected class is defined to be equivalent to race, it takes on a much heavier atomic weight,” Kascmaryk said.

Kascmaryk points to what happened in the District of Columbia. A law called the Armstrong Amendment protected Catholic schools from the ordinances on sexual orientation and gender identity. But when district officials thought majority public opinion leaned in favor of LGBT thinking, those protections were repealed, leaving the schools open for discrimination lawsuits.

What about the argument that we should just get the state out of the marriage business altogether? Kascmaryk doesn’t buy it, arguing that so long as there are children, the government will always be involved in making sure they are taken care of.

“There never was a time of libertarian nirvana where the state had nothing to do with declaring who is a mother, who is a father, what is a family,” he said. “They’ve always had to make these decisions for reasons of criminal punishment, for reasons of family law. So it’s virtually impossible to get the state out of that business.”

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