David Rodeback's Blog

Local Politics and Culture, National Politics,
Life Among the Mormons, and Other Stuff

Previous Post          Printer-Friendly Version          Next Post


Thursday, December 1, 2011
A Practical Test of American Fork's Commitment to Freedom

In December the American Fork Council has an interesting and important opportunity to weigh competing principles and vote on the depth of our city's commitment to essential American freedoms.

Two years ago the Salt Lake City Council passed legislation which has since been copied in several other Utah cities, with some minor adjustments to suit smaller cities' different administrative structures. Similar legislation is expected to be on the American Fork City Council's agenda on December 13, in the form of two closely related ordinances.

Attorney Clifford J. Rosky, an Associate Professor of Law at the University of Utah, summarizes the two proposed ordinances: "They make it punishable as a civil matter for businesses with more than 15 employees or landlords with more than 4 units to make hiring and firing decisions or deny housing based on sexual orientation or gender identity." Here are the ordinances' definitions of two key terms:

GENDER IDENTITY means a person's actual or perceived gender identity, appearance, mannerisms, or other characteristics of an individual with or without regard to the person's sex at birth.

SEXUAL ORIENTATION means a person's actual or perceived orientation as heterosexual, homosexual, or bisexual.

Before I examine arguments on both sides, I should warn you that I wholeheartedly support these measures, for reasons you will shortly see. My commentary will be candid but not neutral.

I find the ordinances to be intelligent, cautious, and reasonable, but I'll resist the temptation to dive deeply into the details. Our project today is philosophical. Note that arguments introduced in other Utah cities are relevant, because the proposed legislation is essentially -- and deliberately -- the same.

A Personal Note

You may already be troubled on two counts: these proposals' appearance in American Fork and my support for them. This is understandable.

I'm a Mormon, a member of the Church of Jesus Christ of Latter-day Saints. I am not an official spokeman for the Church, but I have taught and explained its doctrine for decades, in a variety of official and unofficial capacities. We teach that all sexual activity outside the bonds of a lawful marriage between one man and one woman is sin. There are no exceptions, whether the partners are of the same or different genders. I accept this. I believe it. I claim the right, if so moved, to preach it on the street corner and shout it from the rooftop, as long as I don't impede traffic or violate the local noise ordinance. (Note that I offer no opinion as to whether any particular person's sexual orientation results from nature, nurture, personal choice, or some combination of the three.)

Given my religious convictions (or yours), support for these measures might seem unthinkable. How could I favor them, when they seem to condone sin?

There may be no more important consideration in the universe than the salvation of the soul. But this is a matter for preaching, persuasion, and the example of lives well and joyously lived. It is not a matter for the rule of law, or for denying housing or employment to people whose choices and inclinations differ from mine.

In Favor, Part I: The LDS Church

The LDS Church itself officially favors such legislation. Official spokesman Michael Otterson made this statement in a Salt Lake City Council meeting two years ago. (I quote it in part. You can read it in full here.) The emphasis is mine.

The issue before you tonight is the right of people to have a roof over their heads and the right to work without being discriminated against. But, importantly, the ordinance also attempts to balance vital issues of religious freedom. In essence, the Church agrees with the approach which Mayor Becker is taking on this matter.

In drafting this ordinance, the city has granted common-sense rights that should be available to everyone, while safeguarding the crucial rights of religious organizations, for example, in their hiring of people whose lives are in harmony with their tenets, or when providing housing for their university students and others that preserve religious requirements.

The Church supports this ordinance because it is fair and reasonable and does not do violence to the institution of marriage. It is also entirely consistent with the Church's prior position on these matters. The Church remains unequivocally committed to defending the bedrock foundation of marriage between a man and a woman.

This expertly crafted language is as difficult to misunderstand or misconstrue as it could be, though some are still willing to make the effort.

In Favor, Part II: David's Corollary to the Golden Rule

The Golden Rule exists in many religious traditions. The phrasing I've heard most is, "Do unto others as you would have them do unto you." A corollary suggests itself: We can best measure a person's commitment to the principle of freedom by her commitment to the freedoms of those with whom she most completely disagrees.

The Golden Rule is a grand symmetry, so let's be symmetrical. If it is proper for me to deny you employment or housing in American Fork, Utah, because your homosexuality offends my religious principles, then surely it would be proper for the people of any town in the Bible Belt to forbid me to live or work there, because my Mormonism offends their principles.

You might protest that there's an essential difference: Unlike those earnest folks in the Bible Belt, we are right. Our principles are divine truth.

Alas, the zealots who would discriminate against me feel exactly the same way about their principles.

Please ensure that one of your core moral or religious principles is the freedom of people you think are wrong. This may lead you to conclude that the force of law is not an acceptable way to promote your other principles, even if -- especially if -- you are in the majority.

One of the beautiful things about a properly constructed free society is that the government may not take one religion's side against another, or impose the majority's faith and principles on a minority. Even some matters of great consequence, touching individual salvation or the survival of a society, must be left to persuasion and choice, not enforced by government power.

Opposed, Part I: Tyranny Is (Not) Freedom

Some argue that these ordinances violate First Amendment freedoms of religion and association. (The First Amendment to the United States Constitution does not mention a freedom of association, but it is a logical and widely-accepted derivative of the freedoms of speech and assembly.) These freedoms are at issue here, which is why the proposed ordinances explicitly state that they do not apply to religious and other "expressive" associations. These groups remain free to require their employees and residents in their housing to conform to their chosen principles. In other words, to the extent that legitimate freedoms of religion and association are involved, they are protected in this legislation.

Some opponents speak as if their freedom of religious expression allows them to exclude people who think differently from living or working in their community. They assert, or at least imply, that their freedom of association includes the right not to have to share their neighborhood or workplace with people whose lifestyles they disapprove or abhor. In essence, they argue that their freedoms mean that others who disagree have only the "freedom" to go somewhere else, not to live and work where they choose. Another word for this cynical perversion of freedom is tyranny.

I already described how the same logic could prevent Mormons from living and working where zealous majorities don't want us, but it gets worse. If we accept this bad logic, we will be hard pressed to find a firm basis for judging many of the world's atrocities harshly. Consider the Taliban in Afghanistan, who burn girls' schools and blind their students. Using the same bad logic, we would be tempted to see this violence as a legitimate expression of the Taliban's religious views, including the barbaric dogma that the education of women is evil.

Opposed, Part II: An Illusory Special Case

Opponents of this legislation in Logan, Utah, argued that the LDS Church's statement applied only to Salt Lake City. It was as if the Church had said, "We're afraid that we'll get something even worse in Salt Lake City if we don't endorse this, so we endorse it as the lesser of two evils." No reasonable reading of the statement permits this interpretation. Instead, it speaks of "common-sense rights which should be available to everyone." It praises the legislation for protecting these rights and declares that it is "fair and reasonable and does not do violence to the institution of marriage."

I don't claim that all Mormons must agree with the Church on any political issue, or that elected officials who are Mormons must vote a particular way. The LDS Church doesn't say that, either. But I do think the Church's statement gives Mormons who oppose these ordinances on religious grounds some food for serious thought about how they balance their various principles against each other.

Opposed, Part III: Slippery Slopes and the Like

Some have worried that the proposed legislation is a "slippery slope," and that it will lead irresistibly to further measures, such as the legalization of gay marriage. They worry that the legislation creates special rights or a protected class, though it carefully avoids doing so and in fact protects me from the same sort of discrimination on the basis of my being heterosexual. Quite apart from the fact that traditional marriage's most ardent and stubborn institutional defender, the LDS Church, endorses such legislation and is content that it poses no threat to marriage, I'm not sure we're worried about the right slippery slope here.

To my regret, I worry more about a different slippery slope in mostly-Mormon Utah. Will defeating the proposed legislation encourage a zealous religious majority to act in other ways to exclude people whose choices offend theirs, but which are otherwise legal in our society? It is not hard to imagine.

A common variation of the slippery slope argument is often phrased like this: "We first endure (or abhor), then pity, then embrace." Or, "What we tolerate, our children will embrace." In some moral and religious contexts, when we consider our own conduct, this may have merit. But we cannot accept this reasoning in matters of law, government, or politics in a free society. Our American and Christian principles require us to tolerate and respect the free choice of people who think and choose as we would not, even when their choices and lifestyles offend our most deeply-held principles.

Opposed, Part IV: Not Needed Here?

A final argument declares that this legislation may be needed in Salt Lake City, Park City, or even Provo, but not in [insert your city here] -- because the housing and employment discrimination it would prohibit doesn't, can't, or won't happen here, for one reason or another.

I know people in American Fork who say, based on their own experience, that we need these ordinances. Even a few of these are enough to convince me. I don't need to take a poll. (If I did take a poll, I'd expect results similar to those of a Dan Jones poll showing that a large majority of Utah County residents favor the legislation we're discussing.)

Count Me In

I urge the American Fork City Council, my city's elected lawmakers, to ignore delaying tactics and procedural distractions, even if they originate with staff or other officials; to give freedom greater weight than dogma; to resist zealous but cynical arguments which pervert the freedoms they pretend to advance; and to pass these two carefully crafted ordinances without delay.

Come to think of it, the Utah Legislature could measurably improve my opinion of it in one stroke, by adopting such legislation statewide. I'm not holding my breath; legislative leaders and the governor have already passed the buck to the cities.

On December 13, the buck is scheduled to stop at American Fork's historic City Hall.

David Rodeback comments (12/8/2011):

Though a political conservative, I routinely read intelligent commentary on the left; for example, long-time readers have seen me refer to something in The New Republic over and over again. In Utah, far to the right of my own solidly conservative Republican views, there is the self-styled "conservative public policy think tank," the Sutherland Institute. They are not even remotely in The New Republic's league, but this is Utah, and one does want at least to keep an eye on the far right. So I'm on their mailing list.

They sent out a mass e-mail early last evening with this subject line: "URGENT: AF City to discuss "Gay Rights" Ordinences [sic]." It urges recipients to contact the mayor of American Fork and the city council, to urge them not to pass these ordinances. As an alternative, the e-mail suggests a useless non-binding resolution:

If the city council would like to show their support for city residents who identify as "gay," "lesbian" or "transgendered," we recommend they address the issue with a non-binding resolution rather than a full-fledged law with a compliance mechanism.

I disagree. Let's not go to all the effort of crafting legislation and passing it, if it's not going to do anything. My elected representatives have real work to do.

I do agree that it's important to make my views known to my elected city officials. I did that yesterday morning, delivering a letter and a copy of this blog post to all six of them. I thanked the city councilors who have patiently worked to push this onto the agenda and get it passed, and I urged the other councilors, whose positions I do not yet know (not so much the mayor, who votes only to break a tie), to vote in favor of the proposed ordinances.

I wonder if the Sutherland Institute sent the e-mail statewide, or just to people on their list who live in American Fork. I would hate to think that my elected officials are bombarded today by so much communication from people they don't represent that it will be more difficult for them to respond to those whom they do represent. That would hardly be a blow struck for good government, would it?

Sutherland's stated objections to these ordinances are as follows (from the e-mail):

  • "Policies that give legal protection to such ambiguous, self-defined concepts as 'perceived sexual orientation and gender identity,' without equally strong protections of an individual's sincerely-held religious beliefs, have in practice eroded religious liberty."
  • "Creating a legal mandate of non-discrimination singling out 'sexual orientation" and 'gender identity' for special protection would have unintended consequences for employers like forcing them to choose between getting tagged as 'discriminatory" by the city or being sued by customers, without solving any real social problem (current non-discrimination ordinances in cities and counties across Utah have produced exactly zero instances of substantiated discrimination based on 'sexual orientation' or 'gender identity').
  • These non-discrimination ordinances will impose substantial costs on business in the city through the threat of litigation, training, fines, etc.

I've already explained my views on the nature, protection, and perversion of religious freedom (see "Opposed, Part I: Tyranny Is (Not) Freedom" above), as they relate to these ordinances and related arguments. But perhaps you'll permit one more comment on that subject.

I've read the ordinances carefully -- three times -- and believe their protections for religious liberty to be ample. There is no threat in them to any religious organization or other "expressive association"; these are explicitly exempt from the proposed laws. There is no threat of any kind, and no protection needed against such a threat, to any individual's religious beliefs, with one noteworthy exception. If those beliefs include the conviction -- indefensible under the US Constitution -- that people with whom one disagrees ought to be banished from one's city, then I suppose there's a threat -- a necessary, desirable threat. But where legitimate freedoms of religion and association are concerned, this legislation proposes to protect individuals from people who think their own understanding of God's commandments should be sufficient grounds to keep those who disagree from living or working in their city.

As to the second and third bullet points, they are directly contradictory. Either there will be few if any complaints, as in the second bullet point, or there will be substantial costs to the City to handle complaints, as in the third bullet point. As it happens, the experience of Utah cities who already have such laws is that there are very few (notably, not exactly zero) complaints.

The second bullet also suggests that the proposed legislation would single out a group for special protection. Presumably, they mean gays. But, as the ordinances themselves say, everyone has a gender identity and a sexual orientation. I'm not gay, but here's how this legislation would protect me:

  • Prospective employers could not base a decision not to hire me on the fact that I'm straight, and they prefer gays.
  • Prospective employers who refuse to hire gays could not base their decision not to hire me on their (false) perception that I am gay.
  • If I wanted to rent an apartment, prospective landlords couldn't turn me away for either of these reasons.

Very small businesses and landlords with less than four rental units in the city are exempt from these proposed laws, by the way. So if grandma wants to rent her (presumably legal) basement apartment to that charming gay couple, because she thinks they'll take better care of it, instead of those other folks who might not, she'll still be free to do so. She's also perfectly free not to, if she thinks having them under her roof would creep her out.

If you want to learn the thinking of someone who actually gets to vote on these measures next week, MFCC (for newcomers, that's My Favorite City Councilor) posted a discussion of these ordinances and her own views at her blog last night.

If you want to read the proposed ordinances, they are here (but probably still subject to some tweaking): employment and housing.

All of this is one guy's opinion. What do you think?

Previous Post          Printer-Friendly Version          Next Post


Bookmark and Share