robin-wilson

Law professor on how Utah balanced religious freedom, LGBT rights

This week we had the opportunity to converse with Robin Fretwell Wilson, professor at the University of Illinois College of Law. Professor Wilson talked about what Utah got right as it worked to balance religious freedom with LGBT rights in the 2015 general legislative session.

Well, I think the most remarkable thing is you have the reddest state in America extending more protections to the LGBT community than even a very blue state like New York did. In other words, Utah went the distance and protected transgender people who are not expressly protected in New York and in exchange for that, it got ahead of the curve on same-sex marriage and doesn’t find itself flat-footed like the rest of the country right now where you have marriage clerks resigning and you have state offices closing down the marriage function, which I think is wrong, and you don’t have questions about whether a religious group’s tax exemption is going to be at risk.

All that gets buttoned down in the “Utah Compromise” and what I call marriage conscience protections, as well as some innovative pieces, like if you say something in a non-professional setting – think about saying something at a religious meeting on Sunday, like “marriage is between a man and a woman,” in your view, and then walk into your real estate business on Monday – nobody can yank your real estate license. That’s new; that hasn’t been there in other states.

There has to be a forum for every Utahn to be married, in every county, but the county can dispatch that duty in a way that means no religious objectors who have been working at those offices can be fired, except for the [County] Clerk who has been elected. The [County] Clerk can basically outsource this function to any authorized celebrant in the community whether that’s a religious figure or a judge; whoever volunteers. And everybody is treated the same way; it’s seamless. So, a same-sex couple comes in and they get the same treatment as a straight couple.

Continuing, Robin Wilson noted:

Utah actually has workplace speech protections both inside and outside the workplace that are really important in the sense that they protect political and religious speech about marriage, family and sexuality. But they’re two-way-street provisions so if a kid goes to an Equality Utah parade on the weekend he can’t come into the burger joint [where he works] on Monday and be fired for that – and neither can somebody who gave $1000 to Prop 8 be fired for doing that outside the workplace. It’s nobody’s business.

Inside the workplace, there’s a bigger role for the employer to say, ‘Hey, I don’t want any kind of speech about marriage, family or sexuality’ – but if they allow it, if they don’t want to bar that because it conflicts with their essential business purposes, then they have to allow it on the same basis whether it is pro-gay marriage [or] anti-gay marriage, but to the extent that the employer wants to say, ‘Nobody’s going to be talking about that at all,’ then they can tell [his or her employees] that [they’re] not going to be able to do that.

Professor Robin Wilson then concluded with these observations:

Everybody is going to have the urgency of deciding how you’re going to deal with marriage in a world in which legislatures did not get in front of this problem. I think those marriage protections – things like saying if you did religious counseling about marriage before [the U.S. Supreme Court validated] same-sex marriage you can do the same thing after and if that meant you dealt with traditional heterosexual married people only, then you can do that after. Those kinds of things are going to need to be put in state-wide law if there are municipal laws that say otherwise or if an organization contracts with the state or is tax-exempt or for a variety of other reasons. I think the way forward there is not to try to do legislative cram-downs. In other words, just because you have the votes doesn’t make it right. It’s going to go better if everybody is trying to think about a civil society where we live together in peace.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

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John Paulk and the politicization of homosexuality – Mero Moment, 6/24/14

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

GayBusEarlier this month, the Texas Republican Party adopted as a part of its latest platform a provision in support of what is called “reparative therapy,” whereby individuals struggling with homosexuality can receive professional counseling to help distance themselves from that behavior – if that is what they truly desire.

You might wonder what any of this has to do with politics, and the answer is that homosexual activists and their progressive friends have politicized “gay rights” so much that there’s hardly anything about homosexuality that remains a matter of privacy. The Texas Republican Party included this provision in its platform precisely because homosexual activists insist that homosexuality is immutable – and, if immutable, deserving of all civil rights protections and a matter of law and politics.

Most people don’t want to talk about this stuff. After all, it’s private. Most of us believe in live and let live. But when the Texas Republican Party did its thing, the liberal online report Politico ran a big story about a homosexual man named John Paulk who, for years, had a revolving door on his sexual closet and, in his estimation, finally came to realize that none of this so-called reparative therapy actually works. The fact is we talk about this stuff because these issues are symbolic of huge cultural shifts in the American psyche about right and wrong.

As fate would have it, I first met John Paulk in 1997 at the campus of Focus on the Family in Colorado Springs. Back then, John was a bit of a cause célèbre having renounced his homosexuality, crediting faith-based reparative therapy for helping him overcome his struggle. He was big news. He even made the cover of Time magazine in 1998. But shortly after that, in 2000, his world came apart at the seams. He was photographed at a homosexual bar in Washington, D.C., and not only was his reputation in ruins, the reparative therapy he had championed, even written a book about, was seriously questioned in the media.

Frankly, it all seemed a bit odd to me at the time. Too much in the debate over “gay rights” seemed to be riding on this one guy. Not to mention, I’ve never thought that a person can “pray away” such difficult personal struggles – a person’s faith can be important, but real professional help is needed for matters like addictions and depression-related behaviors. Read more

Even things forbidden will be compulsory

Jack Phillips

Jack Phillips, Colorado baker

The state of Colorado has put out a welcome mat for recreational marijuana use but is decidedly cool to private business owners who want to act on their faith as they conduct business. Last week, the Colorado Civil Rights Commission ordered a bakery owner to make wedding cakes for same-sex marriages and to “submit quarterly reports for two years that show how he has worked to change discriminatory practices by altering company policies and training employees” and “disclose the names of any clients who are turned away.”

One irony of this is that Colorado law, approved by voters in 2006, provides that the state will not recognize same-sex marriages. So, what the state is forbidden to do, private business owners are required to do.

It would be well to remember this in the debates over discrimination laws in Utah. It’s clear that even having a law protecting marriage as the union of a husband and wife would not necessarily prevent these kinds of results here. A law protecting individual religious expression will be necessary, period, however Utah defines marriage.

Sorry, this is not ‘Jim Crow’ – Mero Moment, 4/22/14

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

JimCrowDrinkingFountainDuring the recent oral arguments before the 10th Circuit Court of Appeals regarding the marriage laws of Utah and Oklahoma, Judge Jerome Holmes, an African-American, entertained the plaintiffs’ comparison between prohibitions against marriages based on race and prohibitions based on same-sex relationships. Basically, he asked the defendants, “What’s the difference?”

Judge Holmes referred to a 1967 U.S. Supreme Court case addressing a Virginia law preventing a black woman and a white man from marrying. The Court overturned the state law and, in the process, described the fundamental right to marry under the law. Plaintiffs challenging Utah’s marriage law argue the same thing. They claim that two men or two women (or any consenting adults) have a fundamental right to marry, and the Loving case is Exhibit A to justify their claim.

Of course, the answer to Judge Holmes’ question and to the plaintiffs’ claim is that the Loving case was about racism, not marriage. Marriage has a specific definition that Loving did not change. Marriage is between a man and a woman. The Loving case was about marriage between a man and a woman. Once the Court conquered racism, it justifiably ruled in favor of the mixed-race couple.

But this whole analogy brings up the real question: Is there a legitimate argument in favor of same-sex marriage by equating racial civil rights and “gay rights”?

From the end of the Civil War until the passage of the Voting Rights Act in 1965, black Americans were subject to degrading and unjust “Jim Crow” laws that treated them as “separate but equal.” Here are some examples of how black Americans were treated under “Jim Crow” laws:

  • White female nurses were not allowed to treat black men
  • Bus stations were required to have separate waiting areas for whites and blacks
  • Railroad passenger cars were segregated
  • Restaurants had to have separate dining areas and entrances for whites and blacks
  • Cohabitation between the races was prohibited
  • Black children were separated from white children in public schools
  • Black and white public school children couldn’t even share the same textbooks – a textbook used first by a black child was forever to be used by black children
  • Public parks were segregated
  • Mixed housing was a crime
  • Not only were lunch counters segregated, so too were telephone booths Read more

Sen. Reid responds to LDS Church statement on same-sex marriage

REIDSCI wholeheartedly support the LDS Church authorities’ call for civility among all those engaged in the public dialogue over same-sex marriage. In addition, their statement reminds all of us that faith leaders and people of religious conscience have First Amendment rights to share the public square with others, advocating their views, including views on marriage and morality. The free exercise of religious expression is indispensable for the well-being of society and the republic established to represent its interests.

— Sen. Stuart Reid

Click here to read the church’s statement.

Judge Shelby’s dubious decision: sophistic logic, pop psychology, and conclusory reasoning

scalesJudge Robert Shelby holds the dubious distinction of being the first federal judge following the U.S. Supreme Court’s DOMA decision to come to the novel conclusion that the United States Constitution requires a state to redefine marriage to include same-sex couples. The legal chaos that has resulted from this decision and the failure of the court to stay the effect of the opinion while waiting for an inevitable appeal has gotten a lot of attention. Less attention has been paid to the chaotic nature of the decision itself.

The decision is built on two serious fallacies that the court relies on to support a dramatically flawed application of two constitutional concepts that have no relevance to Utah’s marriage law.

First, Judge Shelby concludes that the “due process” clause of the 14th Amendment includes a hitherto unknown right to same-sex marriage. To make this leap, he must first redefine marriage. This he does by saying that marriage is nothing but “a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” Here’s the flawed logic of the opinion:

  • The Supreme Court has recognized a right to marry.
  • Marriage is government recognition of an intimate private relationship.
  • So, the government must label all intimate relationships marriages or it is violating the Constitution.

Whatever its superficial appeal, this “analysis” begs crucial questions.

Read more

The law that sounds reasonable – but isn’t

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Brass_scalesPartisan activists have used words like tolerance, fairness and equality to gain special rights. In the name of fairness, a growing number of Utahns welcome these advances. For instance, many Utahns think initially that the idea of a statewide nondiscrimination law based on sexual orientation and gender identity is reasonable – but it’s not.

It gives special rights to some people at the expense of other people. Ultimately, a statewide nondiscrimination law creates special rights for some that conflict with the first freedoms of everyone else – freedoms such as the freedom of speech, the freedom of conscience, the freedom of association and the right to make a living.

Perhaps you’ve heard in the news about the florist from Richland, Washington, who, because of individual conscience, would not provide services for a “gay wedding” and found herself in violation of the state nondiscrimination law?

The experiences of landlords and employers in other states don’t bode well for Utah landlords and employers. A landlord serving BYU could find herself violating a statewide nondiscrimination law if she doesn’t accommodate youth struggling with gender identity. An employee who publicly supports traditional marriage could be out of a job.

The list of real attacks against people of faith and individual conscience goes on and on.

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Dodgy social science in the Utah same-sex marriage case

graduationIn their recent submissions to a federal court judge who’s being asked to mandate same-sex marriage in Utah, the plaintiffs included a declaration from a sociologist, Charlotte Patterson, who commonly weighs in on litigation with the message that mothers and fathers are interchangeable. The problem, of course, is that there are now studies with larger sample sizes and employing better methodologies than have been conducted in the past which indicate there are real differences in outcomes for children raised by married mothers and fathers compared to those raised by same-sex couples.

For instance, a very recent Canadian study that suggested poorer educational outcomes for the latter. The plaintiffs’ expert tries to minimize this study.

We asked the author of the Canadian study, Dr. Douglas Allen of Simon Fraser University, for his response to the treatment of his work in the “expert” affidavit. Read on for his response:

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‘Ender’s Game’ and fake 'tolerance'

Orson Scott Card, right, at Comic-Con in 2008.

Orson Scott Card, right, at Comic-Con in 2008.

Longtime fans of the book Ender’s Game, like me, are anxiously looking forward to this November. That is when one of the most popular science fiction stories at long last gets released as a movie.

But recently some “queer geeks” (their term) have begun an online push to boycott the film – which, like the book, includes no commentary about homosexuality or “gay marriage” – called “Skip Ender’s Game.” As seen on the website, their outrage is based on a 23-year-old quote from the author (Orson Scott Card) about the immorality of homosexual behavior, and the fact that he is involved with the National Organization for Marriage.

Because of their disagreement with Card’s two-decade-old statement, they ask, “Do you really want to give this guy your money?” and encourage people to send the message “whatever he’s selling, we’re not buying” and to “not subsidize [the author’s] fear-mongering and religious bullying.” The boycott effort from the “queer geeks” has gotten some coverage from the press.

So why are these homosexual activists boycotting an event that has nothing to do with homosexual sodomy? Part of the reason is found in the difference between authentic tolerance and the fake “tolerance” espoused by the progressive left.[1]

In the world of fake “tolerance,” being “tolerant” means accepting all views or opinions as equally true or valid as your own – not holding, much less uttering, opinions that elevate a particular view or value system as being morally or ethically right and holding others as wrong. It also means that those who express views that disagree with this dogma are, by definition, intolerant, and therefore ought to be marginalized or silenced in the name of “tolerance” (even by law if necessary).

In other words, dissent from fake “tolerance” is not to be tolerated because, in that world, “tolerance” is the supreme virtue and measure of the common good, notwithstanding the assumption of fake “tolerance” that no system of values is inherently or objectively superior to another.

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DOMA ruling reveals ultimate goal of "gay rights" activists

Rainbow hat

The following post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Recent Supreme Court decisions regarding homosexual rights have confirmed the validity of the old adage that, “The devil always oversteps his bounds.” In the Defense of Marriage case, Justice Anthony Kennedy reminded every Utahn leery of “gay rights” why we’re right to be suspicious. The goal isn’t equality or fairness under the law. The goal is public acceptance of homosexuality.

Justice Kennedy told Americans that all attempts to defend traditional marriage are acts of animus, malice and irrationality. He left no room for exceptions. This is a great lesson for our Utah Legislature to remember when it convenes for the 2014 legislative session and is asked to, once again, support a statewide nondiscrimination law.

Like Justice Kennedy’s opinion, the basis for nondiscrimination laws is one person’s perception that another person is motivated by hatred and bigotry. The proposed Utah law is based on what one person thinks about another person’s thoughts. It assumes any unwitting landlord or employer is guilty until proven innocent if some homosexual doesn’t get his way. It is an unjust and immoral legal construction. Read more