Nondiscrimination legislation requires balance, extreme care

Balancing_act_News reports suggest there is still an ongoing debate about how to balance calls for changes to state discrimination laws (which would expand the reasons businesses and property owners could not deny housing or employment) with the need for robust religious liberty protections.

At the time leaders of The Church of Jesus Christ of Latter-day Saints held a press conference calling for laws protecting religious liberty, Sutherland Institute noted its support for the balanced approach the church endorsed.

It is safe to assume that few, if any, people of faith in Utah want anyone to be denied a job or a place to live just because those people’s actions or beliefs are contrary to the beliefs of the religion. Religious groups, both churches and charities operating in accordance with religious principles, merely want to ensure that those who represent them as leaders and employees live lives consistent with those principles.

Sutherland Institute has consistently urged strong religious protections that allow churches, unaffiliated religious organizations and individuals to live in accordance with their religious beliefs in every aspect of their lives. Any legislation on this topic should protect this vital principle.

At the same time, the Legislature needs to exercise extreme care when introducing new terms, like “sexual orientation” or “gender identity,” into the law.

The latter requires particular caution since definitions in previous legislation could be read to allow a person to identify as a person of another sex for short periods of time, going back and forth between genders and asking for accommodations in facilities, etc., possibly from day to day. Legislation should be crafted to provide clarity and prevent undue burdens on employers or the privacy of employees, customers, and others.

Even the “sexual orientation” language, if not appropriately qualified, can present challenges for religious liberty. The Church of Jesus Christ of Latter-day Saints has provided some examples:

  • “A Baptist-affiliated organization that places at-risk children in adoption or foster care terminated an employee because her admitted homosexual lifestyle was contrary to the organization’s core values. Accusing the organization of sexual orientation discrimination, she brought a federal lawsuit that the organization is still defending against more than a decade later. Pedreira v. Kentucky Baptist Homes for Children, Inc., 579 F.3d 722 (6th Cir. 2009), cert. denied, 131 S. Ct. 2091.”
  • “A New York City restaurant was ordered to pay $1.6 million to a lesbian chef and manager for allegedly discriminating based on sexual orientation and religion because the restaurant held weekly prayer meetings and the owner expressed the view that homosexual conduct is sinful. Salemi v. Gloria’s Tribeca, Inc., 115 A.D.3d 569, 982 N.Y.S.2d 458 (N.Y. Ct. App. 2014).”
  • “A Minnesota health club, owned by Evangelical Christians and operated in light of biblical principles, was ordered by the Minnesota Supreme Court in 1985 to stop hiring only employees who shared their religious beliefs in order to comply with state nondiscrimination laws. Blanding v. Sports & Health Club, Inc., 373 N.W.2d 784 (Minn. Ct. App. 1985), aff’d, 389 N.W.2d 205 (Minn. 1986).”
  • “A private Jewish university in New York City was sued by a lesbian couple for its policy of reserving its married student housing for male-female couples. The state’s highest court ruled that the university’s policy could be challenged as violating the city’s ordinance barring housing discrimination based on sexual orientation. Levin v. Yeshiva Univ., 96 N.Y.2d 484 (2001).”
  • “In 1996 the California Supreme Court ruled that a devout Presbyterian widow with traditional Christian morals violated state law when she desired to rent one of her properties only to couples who are married. The court explained that the widow could avoid compromising her religious beliefs by getting out of the rental business altogether. Smith v. Fair Employment & Housing Com., 913 P.2d 909 (Cal. 1996).”

Additionally, nondiscrimination policies should not be used to marginalize those who hold and openly voice their support for traditional moral standards in mature and respectful ways, including expressing their opinions in the public square. This includes asking for reasonable accommodations when asked to do something that violates their beliefs.

We are confident that the Legislature can create rules that address valid concerns of mistreatment in employment and housing without compromising in any way the ability of churches, other religious organizations and people of faith to live consistent with their beliefs without fear of retribution.