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Hysteria over Indiana’s protection of religious liberty: Elites take leave of their senses

The reaction to the Indiana Legislature’s enactment of a generic religious liberty law seems increasingly unhinged. The long knives of business, entertainment and political elites are coming out. Even, amusingly, “gamers.” This does little to assuage concerns that proponents of sexual revolution are motivated by animus towards people of faith.

The basic reality is that the law passed by Indiana is almost the same as a law approved by the U.S. Congress in 1993 with overwhelming bipartisan support. The bill simply directs courts considering religious liberty claims to ensure that when the government, or a private party bringing a lawsuit, does something that creates a “substantial burden” on the exercise of religion, it is doing so to further a “compelling interest” in the narrowest way possible to protect that interest. At least 19 other states have similar laws.

Indeed, the legal rule codified in Religious Freedom Restoration Acts reflects the U.S. Supreme Court’s interpretation of the First Amendment for decades (before the court abandoned the principle). The federal RFRA was Congress’s attempt to restore the old rule.

Law professor Daniel O. Conkle, who notes his own support for gay rights and same-sex marriage, showed great integrity recently by pointing out that labeling Indiana’s law “a license to discriminate” does not comport with reality.

One will search far and wide for any example of people being thrown out of restaurants because of a state or federal Religious Freedom Act, though that is being urged as a foregone conclusion by opponents of the law. Why would Indiana’s law create a different result than any other state’s laws, or the federal government’s for that matter? As Stanford Law Professor Michael McConnell notes: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”

In fact, Professor McConnell and Professor Conkle both note that courts are likely to prioritize discrimination laws over religious liberty if there were to be a conflict.

That may be why Utah opted to pursue a different approach to religious liberty protections this last session. Rather than leave to courts to balance religious liberty with conflicting claims, Utah’s law straightforwardly limited the application of laws that might otherwise impact religious liberties to prevent the litigation in the first place.

But whatever approach a state chooses: stating a principle for courts to apply, like Indiana, or creating rules to prevent attacks, like Utah — protecting religious liberty is not an attack on the rights of others, whatever demagogues may claim to the contrary.

An open letter to Utah legislators

March 20, 2015

Dear members of the Utah Senate and House of Representatives,

Thank you for your service in the recently concluded legislative session. As we reflect on the important policy decisions you made this year, we wish to acknowledge – without regard to your philosophy or political party – the significant sacrifice it required from you in time away from your families, neighbors, workplace associates and many other priorities. Over the course of 45 days, you successfully resolved a raft of difficult and sometimes contentious issues: balancing protections for religious liberty and the LGBT community, increasing funding for public education, equalizing property taxes, strengthening accountability in public education, addressing the transportation funding gap, and reforming the criminal justice system, just to name a few.

Of course, not everyone – including Sutherland Institute – agreed with every particular of how these issues were resolved. Nevertheless, to your credit you sought to take these issues on rather than avoid them, and more often than not did so with prudence, graciousness and good humor amid seemingly endless meetings, thousands of emails, phone calls, tweets and handwritten notes, and hundreds of people daily importuning you for your time and support. Such is not the case in many legislative bodies, whether national, state or local, and the fact that you choose to do things differently here is something for which every Utahn can and should be grateful.

As policymakers, you fulfill the vital responsibility of the legislative branch in our inspired, distinctly American form of self-government. This includes the often-thankless task of maintaining the proper balance between paying careful attention to the views of those who elected you, and living up to your role and duty as elected representatives, well described by the great Irish-born statesman and member of British Parliament:

Your representative owes you, not his industry only, but judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

– Edmund Burke, 1729-1797; Speech to the electors of Bristol, November 3, 1774

Because of our focus on promoting conservative principles, encouraging sound public policy, facilitating robust public dialogue and maintaining good policymaking processes, we are pleased to acknowledge the careful attention, passionate engagement and thoughtful debate you contribute toward making Utah a better place to live, work and raise a family.

– Sutherland Institute

Top 5 highlights from the 2015 Utah legislative session

sutherland file pictures 005Of the 833 pieces of legislation that were introduced this session, below are five that are especially noteworthy.

HB 333—Budget Reserve Account Amendments

Utah lawmakers once again showed they are serious about their fiscal stewardship by raising caps on state “rainy day” funds. HB 333 will put more taxpayer money into savings, instead of using it to grow government via new state programs or agencies. The result will be a state government that is able to sustain critical services that Utahns rely on – like public education, transportation and public safety – rather than being forced to cut them or to raise taxes when lean economic times lead to falling tax revenues.

HB 348—Criminal Justice Programs and Amendments

With this bill, legislators enacted serious criminal justice reforms that will reduce costs to taxpayers from Utah’s state prison system, while simultaneously helping low-level offenders change their lives and become productive members of society. Additionally, as similar reforms in Texas and Georgia have demonstrated, Utahns will see less crime, reduced prisoner recidivism and improved public safety. In short, with HB 348 everyone is genuinely better off – something that can be said of very few pieces of legislation.

SB 104/SB 195/HB 186—State School Board Election Bills

After a federal judge signaled that Utah’s existing state school board elections process was unconstitutional, a flurry of alternative proposals made their way through the Legislature. SB 104 called for partisan elections. SB 195 would have implemented partisan elections unless an amendment to the Utah Constitution passed to create a governor-appointed school board. HB 186 would have established nonpartisan elections. Ultimately, none of these bills passed, so this issue will receive a lot of attention in the interim.

SB 164/HB 446—Medicaid Expansion Bills

Members of the Utah House wisely rejected a plan to expand Medicaid under the provisions of Obamacare, commonly called the Healthy Utah plan. Despite enormous pressure from the governor’s office and some of Utah’s largest, most well-financed special interest groups, representatives rejected the program’s financial unsustainability and harmful impacts on the low-income children, single parents and disabled Utahns currently on Medicaid. Over the next several months, a select group composed of legislative leaders, Gov. Herbert and Lt. Gov. Cox will work to develop a proposed resolution. In late summer, the full Legislature will be convened to consider the proposal.

SB 296/297—Nondiscrimination and Religious Freedom

SB 296 created protections in employment and housing on the basis of sexual orientation and gender identity to address the needs of lesbian, gay, bisexual and transgender individuals, while including religious liberty protections for religious organizations, employers, and employees. SB 297 ensured that couples seeking marriage licenses would have access to an authorized government employee to perform that service, while allowing government employees the ability to designate someone other than themselves to perform that duty if they prefer. The two bills did not attempt to nor did they address all the questions arising from a federal judge’s decision striking down Utah’s marriage law, and there are sure to be continued efforts to resolve these issues in the future.

Utah’s elected officials displayed remarkable statesmanship as they dealt with hundreds of important – often contentious and sometimes historic – issues during the 2015 session. We are fortunate to live in a state that, more often than not, values prudence, freedom and compassion.

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Why Senate Bill 297 is necessary

At this time, the state of Utah has been required to recognize same-sex marriages by court order. The court order did not address some of the foreseeable consequences of redefining marriage in the state, such as implications for religious liberty.

By contrast, the anti-discrimination legislation (SB296) contains provisions that attempt to balance the response to mistreatment of individuals in housing and employment with the need to preserve crucial religious freedoms.

The fact that same-sex marriage has come to Utah by court order has prevented this kind of balance, so the Legislature needs to act to ensure that religious liberties are considered in the context of same-sex marriage.

SB297 provides necessary religious liberty protections:

  • No public official will be forced to perform marriages if it would violate their religious beliefs (while still allowing any person to get their marriage solemnized).
  • Religious officials and religious organizations will not have to recognize or perform marriages that conflict with their teachings.
  • Religious officials and religious organizations will not be prohibited from solemnizing marriages just because they will not perform marriages that conflict with their teachings.
  • Religious officials and religious organizations will not be forced by the state to “provide goods, accommodations, advantages, privileges, services, facilities, or grounds for activities connected with the solemnization or celebration of a marriage that is contrary to that religious official’s or religious organization’s religious belief.”
  • Religious officials and religious organizations will not be forced to promote marriages that conflict with their teachings in any programs or activities.
  • Government cannot penalize a religious official or religious group for exercising these rights.
  • Licensing, certification and accreditation processes can’t be used to punish people for their beliefs about marriage, family and sexuality.
  • Religious officials and religious organizations will not be forced by individuals to “provide goods, accommodations, advantages, privileges, services, facilities, or grounds for activities connected with the solemnization or celebration of a marriage that is contrary to that religious official’s or religious organization’s religious belief.”

The bill also provides legal remedies for those whose rights are violated under the new law.

Of course, these are not the only religious liberties that need protecting (note: there are also significant exemptions and religious speech protections in SB296) but SB297 is an important start to minimize the potential harms of radical court decisions on marriage.

Sutherland Institute endorses SB 297

Photo Credit: Scott Catron

Photo Credit: Scott Catron

In our statement about SB 296 yesterday, we noted a need for additional religious liberty protections for “the ability of people of faith to act on their beliefs related to marriage without fear of retribution.” Today, Senator Stuart Adams introduced SB 297, which does precisely that.

SB 297 provides important protections for the religious liberty of churches, religious organizations and individual people of faith.

Some of these key protections relate to those who might be asked to solemnize a marriage inconsistent with their beliefs; those who are threatened with retaliation for expressing or acting on their beliefs; and the professional and business licenses of those who speak up for marriage. It further prevents any coercion of religious organizations or officials to facilitate marriages contrary to their beliefs.

It is a robust protection of a foundational freedom: the ability of all citizens to hold, express and live in accordance with their core beliefs about marriage.

Taken together, SB 296, SB 297 and HB 447 represent a sound, balanced approach to protecting the rights of all Utahns. We encourage their passage.

Sutherland Institute statement on SB 296

At the time of the press conference by leaders of The Church of Jesus Christ of Latter-day Saints on religious liberty, Sutherland Institute expressed its support for the principles those leaders outlined. Today, SB 296 has been introduced in an effort to (1) address concerns about mistreatment of individuals in housing and employment, and (2) ensure that the religious liberty of those who recognize and honor standards of morality related to marriage and sexuality are not sacrificed.

As a statement from the Church notes, SB 296 is an effort to balance those considerations. It is clearly a significant improvement over the token religious liberty protections in previous proposals, and it deserves thoughtful consideration from policy-makers.

If this housing and employment law goes into effect and the provisions of SB 296 in practice prove to be inadequate protections for religious liberty, the Legislature will need to act to correct the problem. At that time, we hope we can expect the support of those who have been calling for changes in discrimination laws to remedy any unintended consequences.

Additionally, it is important to recognize that the protections in SB 296 are limited to the context of a discrimination law. We hope that in the short time remaining in the session, or as soon as possible, the Legislature will address other significant religious liberty concerns not confined to the employment and housing context.

For instance, the ability of parents to pass on moral standards to their children; the ability of people of faith to act on their beliefs related to marriage without fear of retribution; and the ability of all citizens to be free of coercion to participate in or endorse conduct contrary to their consciences.

For Sutherland Institute, the crucial issue is that people of faith must be free to teach about and maintain standards of conduct related to marriage and sexuality. This is a fundamental tenet of a free society.

Major health care reform bills to be heard in committee Wednesday

On Tuesday, two significant health care reform bills came out of the House Rules Committee.

•        SB 164 (1st Subst.) – Access to Health Care Amendments, sponsored by Sen. Brian Shiozawa, is Governor Herbert’s proposed “Healthy Utah” plan.

•        HB 446 – Extension of Primary Care Network and Medicaid Benefits Under Existing 70/30 Federal/State Cost Sharing Amendments is the “Utah Cares” program proposed by Rep. Jim Dunnigan.

The two bills have been assigned to the House Business and Labor Committee, where they will be the only two items on the agenda when the committee meets on Wednesday evening, March 4, at 6 p.m.

Assignment to this committee is consistent with the pattern established several years ago subsequent to the passage by the U.S. Congress of the “Patient Protection and Affordable Care Act,” generally known as Obamacare. And, as I have observed through lengthy personal association with the Legislature’s Health Reform Task Force, health care reform related bills are assigned to and considered by this committee. Recent examples include last year’s HB 141 – Health Reform Amendments (2014) and HB 160 – Health System Reform Amendments (2013). Additionally, it is as appropriate for a bill to go to a committee that interacts with entities that deal with liabilities and costs as it is for a bill to be sent to a committee that interacts with entities that reap benefits associated with proposed legislation.

Sutherland has steadfastly opposed the “Healthy Utah” proposal. The Institute sees significant merit in the proposed “Utah Cares” bill. Readers are encouraged to familiarize themselves with these bills and communicate their views with their elected representatives.

Support religious liberty: stand up to the ‘no compromise’ approach to nondiscrimination

Utah_State_Capitol_2008Supporters of a “no compromise” approach to LGBT nondiscrimination argue that we already have sufficient protections for religious liberty. They cite the First Amendment and Utah’s majority-Mormon population to bolster their case. Unfortunately, their argument is undermined by the realities of “no compromise” approaches to nondiscrimination law.

The facts and details of the experience of a Salt Lake City police officer and his role at the Salt Lake pride parade in 2014 are a case in point. This officer arranged, as is common police practice, a swap of duties with another officer working the parade. In the officer’s view, his original entertainment/celebratory role of doing motorcycle maneuvers at the head of the pride parade amounted to endorsing values that his conscience and faith disagreed with. Instead, the officer sought to perform a public safety role, such as protecting parade watchers from traffic. The officer had fulfilled similar public safety duties on other occasions for Salt Lake LGBT rallies.

Because the officer had the temerity to ask that his religious views and values be treated with tolerance, respect and equality, his employer caricatured him as a bigot to the media, questioned his willingness to perform his duty and put him under internal investigation. This officer asked for religious liberty and was met with injustice and intolerance. And all of this happened in our own backyard. Read more

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. Read more

Testimony on SB 153 (Access to Health Care)

sutherland file pictures 007Testimony presented by Stan Rasmussen, Sutherland Institute director of public affairs, on Feb. 17, 2015, before the Senate Health and Human Services Standing Committee regarding SB 153 (Access to Health Care): 

Thank you, Mr. Chair, and good morning, Senators. Stan Rasmussen representing Sutherland Institute.

We think SB 153 represents a wise approach that balances meeting the immediate needs of individuals with significant health problems against the need to be cognizant of and cautious about the very detrimental impact that expanding the Medicaid program will have on those currently in Medicaid – the hundreds of thousands of disabled individuals and low-income single parents and children that Healthy Utah would leave behind in traditional Medicaid – as well as on the long-term fiscal outlook of the state.

For these reasons, we strongly encourage your support of this bill.

Thank you.