Why Find Common Ground?

Americans are tired of the culture war. Common ground lawmaking is the way forward. The Fairness for All Initiative bridges the divide that we see all too often today at the intersection of religious liberty and LGBT nondiscrimination. Many assume we have to pick between these two important values. This simply is not true. 

The best way to protect civil rights, whether equal protection or religious liberty, is to protect all Americans in achieving the American dream. But in 28 states today, gay people who marry on Saturday can be fired on Monday. Americans understand this is unjust. Many religious people are at risk, too, just for practicing their faith.

For too long, instead of forging common ground, we have witnessed repeated trainwrecks, like those in:

• Arizona, where an amendment to the state’s RFRA was tagged as a license to discriminate even though it would not have impacted existing duties not to discriminate—in fact, Arizona lacked sorely-needed nondiscrimination protections for LGBT persons.  But this one-sided measure caused significant uproar and risked boycotts

• North Carolina, where the state’s so-called  “bathroom bill” prohibited municipalities from protecting LGBT persons despite a lack of evidence showing a need, prompting national corporate boycotts and untold financial losses

• Georgia, where the Governor vetoed a bill, in the face of enormous corporate pressure, that would have protected persons of faith in a state that has no statewide nondiscrimination law, for any community, including people of color and LGBT persons

Although these efforts sparked tremendous backlash, they shared a common impulse: to give greater certainty to people of faith that they could live with integrity according to their convictions, both in private and in public. Many religious people fear for their jobs and livelihoods, or the ability to do the important work they do (more below).

Ironically, LGBT persons and persons of faith seek the same thing:  the ability to live without fear for being who they are. As we show here, America is checkerboard of protections.

The task at hand is simple: there should be space for everyone to live and act according to what’s most important to them. Not only does finding common ground avoid destructive outcomes, it makes possible tangible progress that measures that don’t consciously bridge divides can’t. State laws protecting the full LGBT community from discrimination have not  been adopted since 2007, as shown in Graphic 1, although state lawmakers have expanded older protections to cover transgender people. Still, the lack of political support for needed nondiscrimination protections for the full LGBT community means both communities have something at risk and something to gain. You can see these trends graphically, in Graphics 4 & 5.

One shining example after Obergefell of creating space for everyone is Utah’s landmark legislation in 2015, which melded religious liberty and LGBT nondiscrimination protections (for examples before Obergefell, see here and here). Utah provided much needed protections to the full LGBT community, more than now antiquated SOGI laws were able to do. Yet, Utah respected people of faith, providing more protections than any other state in America around marriage, faith, and sexuality. It caused no uproar and did not precipitate a national boycott. Why? Simply, Utah lawmakers wrote a new script for peaceful coexistence.

A scant three weeks later, Indiana enacted a state RFRA which by its nature protected only religious liberty in a state with no statewide protection against discrimination for LGBT persons.  Like other one-sided measures, it precipitated nationwide boycotts of the state and the law drew scathing criticism. Ironically, RFRA, a generalized protection that does important work to protect religious observance, especially by minorities, has not been applied by courts to counter nondiscrimination laws.

Contrast this with Utah.  Utah garnered national and international praise for doing what some believed was impossible: finding common ground and protecting everyone. As a result of Utah’s collaborative approach, the state gives LGBT persons more protections from discrimination than New York had extended expressly to the LGBT community at that time, while ensuring that religious individuals and organizations could live out their faith in meaningful ways. This pairing of interests and mutual respect in the law is visualized in Graphics 2 & 3.

Instead of a healthy, collaborative legislative progress, many states have been bogged down with costly and demeaning litigation, eroding the ethic that we are one community. Utah sidestepped that sort of drama and litigation with clear, balanced laws--laws that have not faced a single challenge in the courts.

In short, legislators can ensure  mutually-arrived at laws that pair safeguards against discrimination for LGBT individuals with religious liberty protections for people of faith represent the best that American is: a pluralistic society.

Notwithstanding the possibility of deep and abiding mutual respect, people on both ends of the political spectrum have advocated for one-sided measures benefiting them and them alone. Not only do these one-sided measures sew division among people and further separate us from the possibility of being one community, they are unsuccessful.

And because States have responded in different ways to the needs of the faith and LGBT communities, America is a checkerboard of injustice. Laws that only provide protection for one side have precipitated boycotts costing billions and the jobs of real people (North Carolina), travel bans (Texas, North Carolina), and vetoes (Georgia). The common denominator: protecting oneself to the exclusion of others is not a successful strategy.

It also does not provide the kinds of protections that even-handed laws like Utah’s provided, as Graphic 3 makes clear.  Utah’s protections—for both religious freedom and LGBT nondiscrimination—outstrip those in other states that have protected one side of the ledger only. Ironically, some social conservatives argue for narrow religious protectionism, saying they cannot sufficiently be protected if the law also protects LGBT persons. Graphic 3 shows that this view ignores huge numbers of persons who live in states without religious liberty protections, but are living under older one-sided LGBT nondiscrimination laws adopted by their counties or cities.

Looking out for one side alone has human consequences, too. In 28 states, gay persons can get married over the weekend but be fired on Monday just for being gay. Many religious people also believe themselves to be at risk—they could lose jobs or professional licenses just for being who they are.

In California, students at religious colleges and universities were left to wonder whether they would be denied state money to make college possible because of their desire to be educated in a community that shares their faith, until sponsors of a new law tempered the bill. And religious colleges and universities themselves have cause for concern. Without a secure legislative solution, they may find their accreditation at risk, as Trinity Western University, an Evangelical institution in Canada, discovered.

In 9 states, a religious foster care and adoption agency can be put out of business if it cannot, for religious reasons, place children in certain families. In 11 states, gay couples who want nothing more than to take a child into their family can be humiliated while being turned away by an agency selected by the state and paid with state dollars. Both outcomes are wrong and fail the very children whose interests are at stake.  For a more constructive approach, see here.

And in one legislative cycle alone, 140 bills were introduced into state legislatures concerning religious freedom and LGBT rights. None took  seriously the interest of both communities, as Utah’s landmark legislation did.

At the federal level, proponents push one-sided laws that are going nowhere, as shown in the timeline below. The First Amendment Defense Act (FADA), which protects religious believers’ view of marriage, without considering LGBT people, has gained no traction. Similarly, the Equality Act, which protects LGBT people, with little consideration for religious believers, is expected to pass the House of Representatives but get bogged down in the Senate.

As states and Congress have floundered, courts are left to fill in the gaps. For example, as shown below in Graphic 5, some courts have interpreted sex discrimination to include sexual orientation or gender identity, while others have not. Across America, companies from Boeing to Ford to Whirlpool are navigating a patchwork of state and municipal laws that treat employees and their families in some states differently than in others. Yet, protecting all people alike is good for business, attracting talent and reducing compliance costs.

Either/or answers are not serving us. Piecemeal resolution is not serving us. We need better answers that represent the best of what America is: a pluralistic society.

Many people look at Masterpiece Cakeshop, the case about the Christian baker, as evidence that these issues are part of a zero-sum game; if LGBT people win, religious people lose, and if religious people win, LGBT people lose. But every single state law at play in the sort of conflict in Masterpiece Cakeshop predates same-sex marriage, as shown in Graphic 6—legislators could not have considered how to peacefully resolve what are now predictable conflicts. Thoughtfully crafted laws prevent court cases that fracture society.

Some have pursued state RFRAs as a one-size-fits-all solution to actual (or perceived) threats to religious liberty. RFRAs most often benefit religious minorities whose concerns are unlikely to be heard by legislatures.

RFRAs have not operated to push back nondiscrimination duties that conflict with religious exercise, as twenty-five years of experience shows. (True, one Kentucky case, frequently cited for the merits of RFRA in overcoming LGBT nondiscrimination laws, involved a refusal by a Kentucky T-shirt maker to print LGBT messages on his shirts.  The court in that case did not find that RFRA exempted the T-shirt maker from a duty not to discrimination; rather, it found that the refusal was not based on sexual orientation at all, meaning that the T-shirt maker had not discriminated. The court found the refusal was based on the message the shirts conveyed—a speech claim. In other words, RFRA did not provide the win for the T-shirt maker.)

Because of this, RFRAs do not necessarily pose a threat to the LGBT community, especially with their stringent requirements for redress. And neither do they advance the interests of religious stakeholders concerned for how their views and beliefs will fare under laws protecting LGBT persons from discrimination in housing, hiring, and public accommodations.  Finding room for all in these matters requires specific accommodations tailored to the precise need, not blanket protections that have proven irrelevant thus far.

Rather than opting for an ineffective, one-sided approach, legislatures should search for collaborative ways to give everyone protections.

The political composition of states that lack protections for LGBT individuals shows than anything but a new approach is doomed to fail. As shown in Graphics 7 & 8, one-sided measures seeking LGBT nondiscrimination protections face significant headwinds in conservative strongholds—places where more traditional positions prevail and where, as we show here, many citizens are devout. In order to secure protections for the LGBT community, protections for faith groups must also be interwoven in any new legislation.

People on the left and right try to sell one-sided measures as the only moral option. In reality, those strategies do not have the political support to be adopted and are not sustainable. Fairness for All legislation, however, aims to create long-term solutions, harnessing the political power of the many of Americans tired of a continuous culture war.

The world of state politics is a sandwich: there are three levels of regulatory influence—federal, state, and municipal. In addition to these layers of regulation, there is a force for good, namely, corporations, which also have a significant interest in civil society and, in particular, the strength of workforces.

At a time when federal policies around LGBT persons under the Obama administration are being re-calibrated in real time by the Trump administration, shifting the nature of pressure on state politics from above, states have adopted a patchwork of protection for the LGBT community. Some states have adopted statewide protections. States without statewide protections face pressure from below as some municipalities adopt protections against sexual orientation discrimination, others against gender identity discrimination, and often, against both. These laws have a variety of step-offs for religious groups and persons, but they are by no means consistent.  This variability creates challenges for employers who endeavor to respect the identities of all employees, whether LGBT or religious.

Some partisans urge legislators to resist pressures at the federal, state and municipal levels  to enact LGBT nondiscrimination laws, arguing that by refusing to enact LGBT protections, they erase the possibility of conflict with religious liberty. In this account, there is no need to work collaboratively to secure additional protections for religious liberty. That strategy might work long-term for the most private invocations of religious liberty. But religious people do not live behind a wall.  The need for religious liberty extends much further into the public sphere, and encounters real tension there, as Graphic 9 illustrates.

Even in Alabama, where until 2017 there had been no municipal sexual orientation or gender identity protection in all the state, the Birmingham City Council passed a LGBT nondiscrimination ordinance, creating pressure from below on Alabama state legislators. Since then, the City of Montevallo has joined Birmingham in passing similar protections.  But as Graphic 3 shows, persons of faith living in the largest population center do not enjoy protections for their countervailing needs.

Just as municipal laws pressure state legislators to act so, too, do the actions of corporations interested in protecting their workers and being good corporate citizens in their communities. Corporations often transcend state borders, exerting their own influence about the need for LGBT nondiscrimination laws, usually in the form of state boycotts. Consider, for example, Ohio.  In Ohio, municipal LGBT nondiscrimination ordinances cover 29% of the state’s population, as shown in Graphic 10. In these places, many religious organizations operate.  As one barometer, 424 Catholic churches reside in these municipalities, serving the cities and counties in countless ways: thought schools, social services agencies, homeless shelters, and food banks.  These religious entities and the persons who share their faith commitments need the room to do the good work they do in society, in a way that honors their faith commitments without undercutting society’s other commitments to equal citizenship and dignity for all.

Ohio is home to the headquarters of 25 Fortune 500 companies, including Kroger, Proctor & Gamble, and Nationwide insurance, all which protect against sexual orientation and gender identity discrimination in the workplace. Many smaller Ohio companies also operate across multiple Ohio cities and counties.  They may not exert as much political influence, but Ohio’s patchwork of local LGBT nondiscrimination rules, and different carve-outs for religious considerations, creates inconsistencies and challenges for their operations. Amid the uncertainty, some companies may opt to offer the utmost protection to one set of workers—religious employees or LGBT workers (and of course, some persons are both)—simply to avoid compliance hassle. It was precisely this sort of concern that resulted in national rules in the Employee Retirement Income Security Act of 1974 (ERISA), which established minimum standards for pension plans.

Despite the influence exerted from the federal, state, and municipal levels, there are various individuals and groups convinced that “proposed SOGI laws, including those narrowly crafted, threaten fundamental freedoms, and any ostensible protections for religious liberty appended to such laws are inherently inadequate and unstable.” To those who believe this, we say, the moment has passed when denying other people their basic freedoms is a viable strategy.

Not surprisingly, when LGBT advocates are forced, through grassroots efforts, to secure protections municipality by municipality, battleground by battleground, the interests of religious stakeholders are not first and foremost—often, they are not even present.

Religious stakeholders who believe that they can hold the line against LGBT nondiscrimination laws ignore yet another pressure: the generational shift already underway, which strongly favors LGBT rights (See here in Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections). As the eldest generation’s influence on public policy fades, so too will the opportunity for collaborative work to secure valuable protections for religious liberty. This shift “should be an alert to the Republican Party as they think about generational replacement.” As one college-aged conservative said, “I don’t care about [my friends’] sex or gender, I just care about the individual.”

Some may believe that the wind is at their backs, citing the Trump administration’s various pronouncements.  But the idea that there’s no need to act ignores generational change, local pressures, and corporate America’s interventions against one-sided laws—all suggest that the ostrich effect is not a sustainable strategy. Doing nothing ignores the many other advancing pressure points.  Further, when the winds of change blow in a different direction, those who perceived themselves to be on top will find themselves unprotected.

The only sustainable and responsible approach is to reach collaborative solutions that prevent the harms of one-sided approaches. The LGBT community knows well what the brunt of one-sided approaches feels like. For example, in Kentucky, county clerk Kim Davis famously shut down marriage to not only LGBT couples, but to everyone in a part of Kentucky. That debacle impacted not only the LGBT community and Kentuckians in that part of the state, but it reached deep into the pockets of Kentucky’s taxpayers—Kentucky payed $222,000 in legal fees for Kim Davis’s refusal.

A creative solution, like the protections for marriage clerks that Utah pioneered in its landmark legislation, could have saved Kentucky from this mess. In Utah, lawmakers created a procedure to make sure every couple that presents for a license is treated with dignity—whether gay or straight—while ensuring to the greatest degree possible that no marriage clerks are fired for refusing to violate their conscience (there is a marrier of last resort). These kinds of win-wins are possible when people of good will come together to write new scripts for peaceful coexistence.

By working together with state legislators, the faith and LGBT communities stand the best chance of achieving real, lasting protections for both communities. This is a model that is tried and true. Before Obergefell v. Hodges opened marriage to all couples by judicial decision, nearly one-fourth of U.S. states enacted same-sex marriage legislation, as Graphic 11 shows. That voluntary legislation gave lawmakers opportunity to honor everyone’s interest, whether LGBT, a person of faith, or otherwise.

In those states, the faith and LGBT communities took their case to state lawmakers considering same-sex marriage. As a result of a well-considered process, religious people have more protections in those states than in states that received marriage equality by judicial decision—even though the states that enacted marriage equality are also pioneering states for LGBT rights. Graphics 12-17 show how these states’ protections stack up against the rest of the country, which held out against recognizing same-sex marriage.

Just as Americans should be concerned with discrimination against people of faith, they should be equally concerned to protect LGBT people in their ability to secure work, find a place to live, and be served in public places like everyone else. Some say that market forces have addressed, and will continue to solve, LGBT discrimination independently, without laws, arguing that no affirmative legislative action is needed. This ignores the very real adverse treatment individuals have faced for being gay or trans, as shown in The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns. It also ignores the deep unfairness of denying to others protections that one enjoys (see here for maps protecting against religious discrimination but not LGBT discrimination).

Others contend that nationally, public opinion already supports LGBT nondiscrimination, so again, there is no need for additional legal protection. True, a majority of Americans across the country do support laws banning LGBT nondiscrimination, in pockets of America it is still legal, and acceptable to many, to treat people badly because they are gay or trans.

For the LGBT community, being told “just wait, it is getting better” is cold comfort to unjust treatment today, as the real documented cases of discrimination from the EEOC show (more below). In this sense, justice delayed is justice denied.

In Ohio and elsewhere, Civil Rights Commissions have documented real cases of discrimination that occur despite changes in national attitudes. For example, in Maitland v. Aveda, instructors at a beauty school allegedly harassed a young man by, among other things, telling him that “Jewish faggots” were not welcome at the school; he was removed from the class. Just as religious discrimination is wrong—and is precluded everywhere in America —LGBT discrimination is wrong. Fair minded Americans—people who believe in the American dream—will no more tolerate discrimination on the basis of sexual orientation or gender identity any more than they will discrimination on the basis of religion.

The federal Equal Employment Opportunity Commission publicizes statistics on discrimination complaints by protected category which show that there are real instances of discrimination. The data, shown in Graphic 18 & 19, on how these complaints are disposed of show that the claims follow a course like that for discrimination based on religion. Most are found to have no reasonable cause for concluding there was discrimination, but a small, yet significant number are found to reflect real discrimination. Others are settled formally or informally.

People on both the left and right try to sell one-sided measures as the only moral option. In reality, those strategies are short sighted, unsustainable, and do not have the political support to move an inch. Fairness for All legislation, however, aims to lock down long-term solutions for all, harnessing the political power of the many of Americans tired of a continuous culture war. This sort of fair and respectful legislation proceeds according to the following principles:

• Respect everyone for who they are in public and private

• Allay the very real fears expressed by both communities

• Give clarity to parties around immediate challenges

• Honor the non-negotiables values of each community

• Ensure nobody gets turned away from a business on main street

• Use protections with universal application—protect all people alike

• Reimagine old legal structures

• Keep the State and religion in separate spheres

In other words, Fairness for All legislation is guided by a single North Star: all Americans deserve a fair shake and the ability to be true to who they are, in public and in private, to the greatest degree possible.

Not enough attention has been paid to the fact that LGBT persons and people of faith have more in common than not. Many in both communities have been subjected to horrible discrimination, sensitizing them to the need for protections for others.

For both communities, there is something that is non-negotiable, be it their gender identity, who they love, or who they worship. Prominent voices in the LGBT community have made this point, as have prominent voices in the religious liberty community. A person’s faith and sexuality are core to their identity. Those characteristics are not like a pair of jeans a person can take on and off at will.

Everybody in America deserves the ability to be true and to live authentically. Sometimes, we need the law, especially for minorities, to make sure an authentic life is open to everyone. The Fairness for All Initiative is a catalyst for needed change. In the not too distant future, there will be respect for all.