Fairness For All Legislation Protects Religious and LGBTW Rights

Robin Fretwell Wilson, a leading First Amendment scholar,  makes a compelling case for how we can achieve a balanced legislative agreement that protects LGBT civil rights and preserves religious freedom.

— This article previously published in Real Clear Religion by Robin Fretwell Wilson

In the culture war between religious and LGBTQ people, we don’t often ask, “How can all people be treated with dignity, no matter the God we worship or the person we love?” Instead, we litigate against one another.

This must stop.

We need legislation instead of litigation that will provide protections for the LGBTQ community but not at the expense of persons of faith.

Congress can broker agreements, while courts only render decisions for the parties, often on exceedingly narrow grounds. For example, Masterpiece Cakeshop was not a clear win for anyone, even Jack Phillips, who still cannot bake a wedding cake without legal risk.

Our choice is simple: we can continue to litigate endless clashes, or we can write a new script for peacefully coexisting. If we take this path, both Phillips and the couple celebrating their marriage would be treated with dignity.

Culture warriors think that religious freedom and equality cannot be harmonized. They say one must be elevated over the other, that protecting one value diminishes the other. For example, the Chairman of the U.S. Civil Rights Commission, in 2016, categorically labeled religious liberty and religious freedom “code words for discrimination.” In response, a group of religious leaders and socially conservative stakeholders penned a letter condemning all laws protecting LGBT people from nondiscrimination, no matter how nuanced, as inherent threats to religious liberty.

This is incorrect.

An inclusive, confident, covenantal pluralism would protect religious freedom while also extending protections to LGBTQ people. Translating this principle into law is a new breed of legislation—Fairness for All laws—which proceed from a simple idea: protections for faith and sexuality are not at odds. Fairness for All is neither a conservative nor liberal idea, and neither a religious nor secular concept. It is an approach to living peacefully despite the fundamental differences between us. This quest is premised on the American ideal that in a diverse society, there is space for everyone to live and act according to what’s most important at work, at home, and in the public sphere.

The problem is simple. In 28 states, gay people can get married on Saturday and fired on Monday. Americans understand this is unjust. Many religious people are at risk, too, just for practicing their beliefs.

In California, students at religious universities feared being denied needed state funding to pay for college until lawmakers stepped in. But the risk extends beyond students. Religious institutions may find their accreditation at risk.

In 9 states, religious foster care and adoption agencies can be forced to close if they cannot, for religious reasons, place children in certain families. In 11 states, gay couples can be turned away from an adoption agency. Both outcomes are wrong and fail the children whose interests are paramount, especially in the face of solutions where families are placed in the driver’s seat, directing themselves and their government funding to the best provider for their family.

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

On the other hand, Fairness for All legislation would, among many protections, provide protections for LGBTQ people in employment, housing and related areas while also allowing religious organization to continue to operate schools and provide social services such as adoption and foster care according to their faith.

As states and Congress have floundered, courts are filling in gaps. Some courtshave interpreted sex discrimination to include sexual orientation or gender identity, while others have not. Companies from Boeing to Ford to Whirlpool are navigating a patchwork of differing state and municipal laws. Yet, protecting all people alike is good for business, attracting talent and reducing 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.

One example of a lasting peace that Fairness for All legislation can provide is the groundbreaking laws enacted by Utah in 2015, which melded religious liberty and LGBTQ nondiscrimination protections and embodies the concept of Fairness for All.

But to the befuddlement of many, including me, Fairness for All is under fire by some on both the right and left—both say it does too much for the other.

The best way to protect religion is to protect the LGBTQ community from discrimination. And the best way to secure nondiscrimination protections is to ensure that religion is not inadvertently harmed. Common ground lawmaking requires parties to find agreement, not necessarily on every possible matter, but on those core needs each wants met.

While the left and right try to sell one-sided measures like FADA and the Equality Act as the only moral option, those measures do not have the political support to be adopted. They are unsustainable and do not strike the balance called for by the Supreme Court. Fairness for All legislation, however, aims to create long-term solutions, harnessing the political power of Americans tired of the culture war, to create a legislative agreement that is consistent with current Court precedent.

Building on common ground instead of perpetuating divides is the way forward. Fairness for All embraces the rich diversity of America, rather than imposing one-sided victories, and establishes protections for the human dignity of all Americans.

Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and Director, Family Law and Policy Program, University of Illinois College of Law and the co-editor of the just released book; “Religious Freedom, LGBT Rights and the Prospects for Common Ground” (William N. Eskridge, Jr. & Robin Fretwell Wilson, Cambridge University Press, 2018), which examines through the eyes of the faith, LGBT advocacy, legal, and academic communities – from the Human Rights Campaign and ACLU to the National Association of Evangelicals and Catholic and The Church of Jesus Christ of Latter-day Saints the culture-war conflicts around faith and sexuality and explore whether communities with such profound differences in belief are able to reach mutually acceptable solutions in order to both live with integrity