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SALT LAKE CITY — October 12, 2009 — Salt Lake City Mayor Ralph Becker recently released the details of two different ordinances designed to ban employment and housing discrimination based on “sexual orientation” and “gender identity.”  In response, Sutherland Institute reaffirms its commitment to marriage and family as matters of public policy.  We continue to draw a negative policy correlation between attempts to advance “sexual orientation,” “gender identity,” and other similarly vague legal notions and all honest attempts to protect the meaning of marriage in the law.

While we commend Mayor Becker and his staff for their openness and willingness to discuss their recent proposals adding “sexual orientation” and “gender identity” to Salt Lake City’s nondiscrimination ordinances – and thank him and his staff for honestly and sincerely seeking Sutherland’s input and advice as their processes have unfolded – nonetheless, we oppose the inclusion of these terms in the law anywhere in the State of Utah.

The experiences of other states, namely California, Massachusetts, Connecticut, and Vermont, prove that the inclusion of terms such as “sexual orientation” and “gender identity” in state and local laws is used, ultimately, to denigrate the meaning of marriage.  Seemingly rational and everyday concerns, along with more egregious concerns affecting the very safety and justice to be afforded every American, are manipulated and twisted by political activists and activist judges to reach beyond the limits of legal reason and the public good.

Mayor Becker’s new anti-discrimination proposals only open the door to such legal abuses in Utah.

In meeting with the Mayor’s staff, Sutherland encouraged them to emulate the compromise found several years ago on the state hate crimes bill (Criminal Penalty Amendments, H.B. 90, 2006).  Conservatives and liberals collaborated to craft a law that addressed all concerns without the inclusion of vague language such as “sexual orientation” or “gender identity.”  Furthermore, we alternatively recommended that Mayor Becker might choose to propose non-binding resolutions that could include vague language and yet do no harm to the integrity of state law.

As the current proposals stand, Sutherland opposes them.

Proposed ordinances are legally vague
First, the proposed ordinances are legally vague.  Redundancy is not clarity.  To define “sexual orientation” as “heterosexual, homosexual, and bisexual” is redundant.  The definition does not clarify the words – it is the equivalent of stipulating that a specter is a ghost.

Proposed ordinances are dangerously broad
Second, the proposed ordinances are dangerously broad.  The inclusion of the term of legal art “perceived as” disallows any serious response to an accusation of discrimination.  If an accuser simply perceives himself to be homosexual – or perceives the accused to have acted discriminatorily based on the accuser’s perception of himself – the accused has no basis for an honest defense against the charge of discrimination, and neither does the city’s appointed “Administrator” have reason to consider any defense if the ordinance allows anyone to subjectively “perceive” anything.

Proposed ordinances are inherently unjust
Third, the proposed ordinances are inherently unjust to the parties they seek to regulate. Businesses that operate within the city limits of Salt Lake would be compelled to abide by “civil rights” laws that do not exist elsewhere in the state.  While it is not uncommon for individual municipalities to differ in a variety of business regulations, it is uncommon – indeed, unprecedented – for businesses to comply with a variety of “civil rights” laws.

The terms “sexual orientation” and “gender identity” have no place in Utah laws, especially not in employment and housing laws.  Sutherland addressed these specific concerns earlier this year as the State Legislature was pressed by homosexual activists to pass similar ideas as a part of the “Common Ground Initiative.”

Regarding employment concerns, Sutherland has stated:
No person is legally fired for who they are – although plenty of people are legally fired for inappropriate behavior, incompatible personalities, incompetency, or anything that gets in the way of personal performance or team productivity.  This is the nature of at-will employment in a free society…

Culture, not force of law, controls our workplace relationships…

The law protects men and women and children – male and female all.  Only in sex professions are an employee’s sexual life relevant to the workplace.  In every other work environment, the issue of workplace protections based on one’s sexual preferences is, in itself, discriminatory.  It turns an otherwise irrelevant part of an employee’s work experience into something more important than the job itself – and does so through force of law.

Again, our long-standing cultures determine what is appropriate or inappropriate in the workplace, not the force of law. [i]

Regarding housing concerns, Sutherland has stated:
No person can be legally denied housing for who they are – they can be legally denied housing for what they do as tenants, rental experiences based on prior references, or a landlord’s perceptions about how the applicant would fit into the culture of the housing project or surrounding community.  These standards apply to every rental situation in a free society, regardless of someone’s private sexual behavior…

The real question for a landlord, in these cases, concerns her perceptions (visual, communicative, or intuitive) about the rental applicant.  Would this applicant fit the culture of the housing unit, complex, or neighborhood?  Based on hard experiences, the landlord may perceive that the applicant will have too many disruptive parties, too many strangers coming and going, or even undisciplined children.  In the protection of private property rights in a free society, all landlords have this right to subjectively, but reasonably, screen all tenants. [ii]

Sutherland does not condone discrimination against any human being on grounds of innate and universal human traits addressed by civil rights laws.  Nor does Sutherland condone irrational discrimination against any human being for chosen behaviors.

For these reasons and others, Sutherland recommends that the Salt Lake City Council reject the proposed nondiscrimination ordinances.  In the event the council passes and the mayor signs the ordinances, Sutherland encourages the State Legislature to negate the ordinances and take steps to prohibit local governments from establishing such unusual standards in binding laws.

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