• A recent conference about Utah’s effort to secure fairness for all in protecting religious freedom and ending discrimination points to some principles for legislating that can apply in other contexts.
• That experience suggests a series of principles that can allow practical peacemaking even in politics.

In 2015, Utah’s Legislature enacted a package of laws that prohibited discrimination on the basis of sexual orientation and gender identity in housing and employment decisions while also extending protections to religious organizations and people of faith to act on their beliefs about marriage and family.

Although some call the legislation the Utah Compromise, it is better to think of it as the first manifestation of a principled and productive approach to legislating on issues that could be divisive: fairness for all.

Last week, I was able to participate in an event, “Forging Common Ground,” at the University of Utah law school organized by the school’s Federalist Society chapter and cosponsored by a number of organizations, including Sutherland. The other presenters on my panel were key participants in creating and negotiating the 2015 legislation. Sutherland testified in favor of the legislation at the time, so my participation in the event was as an observer of the original legislation.

As important as the initial legislation was, it is even more important to identify some lessons from Utah’s approach that have broader application. This may serve as a tentative approach to identifying principles for practical peacemaking in the legislative process.

First, our constitutional system provides the ideal for building common ground by assigning the most important decision-making to take place in the legislative process. In spite of, or perhaps because of, its messiness, legislating can be a productive way to build common ground. It requires negotiation and consensus-building to secure majorities in support of proposed solutions.

By contrast, litigation is more likely to create zero-sum results. There are certainly times when that is appropriate, as when constitutional rights need to be vindicated, but creating mutual accommodation is most likely when participants are in a position to make concessions in a give-and-take process.

Second, peacefully creating common ground is more likely when participants in the process exercise care to determine the actual, rather than perceived, core needs they are trying to advance. For instance, in the religious freedom/antidiscrimination context, I believe (based on my own thinking at the time) that those who had concerns with changing antidiscrimination laws did not want individuals to be denied housing or employment but worried that adding new categories of discrimination could be used as evidence that other areas of the law, like the definition of marriage, would be affected. Focusing on real core needs, like preserving free exercise so people of faith could act on their beliefs about marriage, illuminated space where responsibilities for conscience and tolerance could be balanced.

Third, and related to the last principle, the process is more likely to succeed when participants can transcend thinking in terms of competition. Competitive thinking can make appropriate concessions in the legislative process seem like losing, when, without the element of competition, we might be willing to support on policy grounds something that benefits the “other team.” This is not easy since our political system – in fact, our culture – encourages sorting into competing groups. Thus, a participant in the political or legislative process is likely to be misunderstood or accused of betraying the “team” when that person supports something the “other side” proposes.

The principle of focusing on core needs helps here. When the concern is securing a fair and necessary outcome, competitive advantage can fall away as a preoccupation.

Fourth, and building on the prior two principles, exercising care in choosing what policies to pursue in the first place can dissipate harmful competition. That is one reason orienting lawmaking toward “fairness for all” is powerful. When legislative efforts are directed to caring for the vulnerable, securing the rights of groups that are at risk, and trying to find sustainable ways to preserve safe and decent communities, these types of efforts incentivize working together. They transcend partisan divides.

Fifth, each individual in the process should focus on what they can control. That begins with the way we think about people with whom we disagree and then how we talk about them privately and in public. It is obvious that we can’t control the reactions of others to our efforts to build common ground, but that should not change our dedication to doing so. Any seeming advantage that may come by political, verbal, or intellectual force is unlikely to be sustainable.

We are fortunate in Utah that some of our legislators have made real efforts to govern in these ways. Of course, there is a long way to go to make this approach more uniform, but establishing the aspiration is a very good start.