Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise
92 Pages Posted: 27 Mar 2019 Last revised: 29 Mar 2019
Date Written: March 26, 2019
Only recently have lawmakers tried in earnest to combine protections for both the faith and LGBT communities, rejecting the zero-sum framing that sees one community as pitted against the other. In 2015, Utah, to the surprise of many, enacted a statewide law protecting the full LGBT community from discrimination in housing and hiring, giving LGBT persons more protections from discrimination than New York had expressly extended at that time. Popularly known as the “Utah Compromise,” the Utah law did so by following the signposts for a new American pluralism that Justice Kennedy sketches in Masterpiece Cakeshop: that no one is disparaged for who they are and that society protects persons to the greatest extent possible consistent with our other commitments as a society.
By comparing the Utah Compromise with Masterpiece Cakeshop, this Article illuminates foundational principles of common ground lawmaking in the area of religious liberty and LGBT nondiscrimination. Part I reviews Justice Kennedy’s vision for a new American pluralism—one that honors the dignity of LGBT persons as well as persons of faith. Part I also describes guardrails around this pluralism that Justice Kennedy sees as essential. Part II contrasts Justice Kennedy’s vision for peaceful coexistence between the LGBT and faith communities with the distressing state of affairs in America today, where in no state does the law governing public accommodations consciously leave room for all citizens. Part III then turns to the pair of laws Utah enacted three years ahead of Masterpiece Cakeshop, which affected the kind of thick pluralism envisioned by Justice Kennedy—one that respects all interests by accommodating different communities’ needs. The Utah Compromise offers a blueprint for other laws that affirm the dignity of all citizens, rather than elevating one set of interests over others.
Parts IV and V describe approaches that lawmakers who believe in the thick pluralism described by Justice Kennedy should consider as they craft laws that move from a grammar of rights to a new, more helpful grammar of mutual respect. Part VI walks provision by provision through the elements of the Utah Compromise, describing how specific provisions operate to affirm the needs of the LGBT community and religious communities simultaneously. Part VI also takes up and answers common refrains: that the Utah Compromise should have tackled more—reaching the thorny question animating Masterpiece Cakeshop of how to share the public square—that it should have given greater protections to the faith community, and that the laws were possible only because of Utah’s strong presence of the Church of Jesus Christ of Latter-day Saints. Part VII concludes.
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