Taking Colliding Trains Off a Collision Path: Lessons from the Utah Compromise for Civil Society
Chapter 21, THE CONTESTED PLACE OF RELIGION IN FAMILY LAW (Robin Fretwell Wilson, ed., Cambridge University Press, 2018).
24 Pages Posted: 30 Jul 2018
Date Written: July 10, 2018
In this chapter J. Stuart Adams, the Majority Whip of the Utah State Senate, discusses the political climate of Utah, the second-most religious state, in the wake of Kitchen v. Herbert and Obergefell v. Hodges which resulted in the recognition of same-sex marriage in Utah and then the United States. The chapter describes Utah’s attempts at balancing the rights and interests of two communities often pitted against one another: people of faith and the LGBT community.
Section I discusses the blank slate Utah faced after Obergefell and Kitchen with no statutory exemptions for religious parties, no Religious Freedom Restoration Act (“RFRA”), no established heightened scrutiny for laws involving religious freedom or same-sex marriage, and no established duty for state officials to solemnize marriages for any couples, whether opposite sex or of the same sex.
Section II discusses the hot contest over same-sex marriage in Utah ranging from extreme talk about secession to demands for statewide nondiscrimination protections with no meaningful protections for religious groups. In this contentious climate, Utah faced the difficult task of creating a bill to end discrimination against LGBT people while protecting religious liberty, within the shortest legislative session of any state in the country – a mere forty-five calendar days.
Section III unpacks the process of creating a workable law and shows that how “fairness for all,” which first appeared impossible, became achievable with expert assistance, ingenuity, and political will, drawing on a wellspring of good will built across years of dialogue between the faith and LGBT communities.
Section IV discusses the guiding principles with which the Utah legislature drafted this legislation: (1) meet each side’s needs even if we cannot accommodate all of their wants; (2) leave existing law in place as much as possible; (3) give clarity about what duties are owed and when; (3) take care not to disturb the faith character of faith communities; (4) recognize the dual nature of marriage as civil and religious; (5) give everyone as much liberty as possible without infringing other values; (6) involve everyone and listen earnestly; (7) end divisiveness with an enduring compact. Through these principles, the legislature sought to address and balance the needs of both political groups.
Section V discusses how, in contrast to the natural assumption that one’s rights must come at another’s expense, advancing the rights of others advances our interests. It includes a personal account of Senator Adams’ conclusion that he was living out his Christian faith by assisting others to live with integrity and without fear of discrimination.
While court decisions often leave states with open-ended questions, the legislation allowed different groups to secure protections or rights that would not have come through litigation and provided a mechanism for peaceful coexistence.
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