David Rodeback's Blog

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Tuesday, February 11, 2014
People Get Arrested, the Opposition Reasons Poorly, and There's Something Governor Herbert Could Do to Help

I assert my religious freedom as constituting the right to worship as I please, while respecting others' legitimate rights; the right to preach whatever gospel I embrace; and immunity from being forced to worship in the manner of the state's or majority's choosing. Despite my personal religious views on sexual morality, this freedom is completely compatible with the presence of gays in my workplace and my apartment building.

I've spilled a great deal of virtual ink lately on the related subjects of same-sex marriage, non-discrimination in housing and employment, and the small but loud fraction of Utah Mormons who think it's proper to enforce all of God's commandments in secular law. I won't rehash that today. (You can find it here.) Nor will I belabor the point that I am unfit for the Utah Legislature. Instead, let's look at two items in yesterday's newspapers. To be ecumenical, we'll take one piece from the Salt Lake Tribune and one from the Deseret News. Then I'll describe something Governor Gary Herbert could to relieve a difficult situation.

It Didn't Help

Yesterday, the Utah State Police arrested 13 protestors at the Utah State Capitol. The charges were typical protestor misdemeanors, disorderly conduct and disturbing a public meeting. If they persisted in blocking the entrance to a meeting long enough to get arrested, we may safely assume that they intended and expected to be arrested. It was an act of civil disobedience in protest of the Utah Senate's refusal to consider SB 100, a bill to outlaw discrimination in housing and employment on the basis of sexual orientation and gender identity.

Remember how, just last week, Republican leadership was saying that they needed to postpone consideration of any legislation bearing on gay and lesbian issues, for fear that some Republican legislators would say stupid, bigoted things (my words), which would negatively influence Utah's court appeal in the matter of same-sex marriage? I suspect that was just the most convenient excuse for most, but in any case I have two lingering questions for these sages.

First, did they think nothing would happen, if they themselves did nothing, despite majority opinion in favor of such legislation? If so, it was a ridiculous expectation.

Second, would dogmatic bigots saying bigoted things in a legislative debate, where cooler heads and better minds could publicly rebut them, really be worse than the message they chose to send? It's a very clear message to the nation, when a legislature which not only refuses to consider reasonable legislation supported by most Utahns, but also decides its fate in a closed meeting. (Is the latter even legal under GRAMA?) We may as well put it up in neon lights now: the Utah state government is willfully dysfunctional in these matters. We're fairly begging federal judges to step in and save us from ourselves.

Arresting people may be necessary, but it only makes the problem worse.

Flawed Reasoning

Local libertarian author Connor Boyack's op/ed in the Deseret News illustrates the flaws in some popular arguments against SB 100 and similar legislation. He helpfully advocates the flawed arguments more clearly than most, as we would expect from a seasoned writer.

Boyack argues that the anti-discrimination proposal violates property rights. He cites numerous cases in other states, in which business owners are being prosecuted for refusing to photograph, host, or provide flowers or wedding cakes for same-sex marriages. I would cite economic freedom, not property rights, but I agree with Boyack that they are improper and unjust.

I'm pleased that he at least avoids arguing that imposing one's religion on others by force of law is a proper expression of religious freedom. We hear that one a lot here in Utah County.

Boyack begins with the idea that a property owner -- including a business owner -- has the right to do business or not with whomever she chooses. Then he moves quickly and hypothetically to the extreme toward which breaching that right tends: a situation in which customers would be prosecuted for failing to patronize businesses run by gays and lesbians. He's not saying we're there yet, just that the tendency is in that direction.

The most obvious flaw in his reasoning about the present proposal is that the legislation has nothing to do with such relative minutiae as photography and wedding venues. It deals with matters far more fundamental than wedding cakes: lodging and employment.

Less obvious, perhaps, but more essential, is the other major flaw in his reasoning. He says, "Individuals either have property rights or they do not. It is not logical to claim that individuals have such rights so long as they use their property . . . in ways that are socially acceptable and approved by others."

On the contrary, it is perfectly logical to argue this, within some reasonable limits. None of our inalienable rights is absolute. If my property rights were absolute, my neighbors' property rights would be severely diminished. I would have the absolute right to conduct any business or activity on my property I wanted, but let's be gentle and say any legal activity. I could locate a paper mill or a small cattle feed lot at the very edge of my neighbor's lawn. Quality of life and property values in the neighborhood would plunge.

No, in society we agree to balance our property rights against others' property rights. This limits everyone's rights, but we understand that this is necessary to preserve those rights. Reasonable zoning and nuisance laws reflect this sort of protective balance.

Furthermore, we must weigh property rights against other rights, such as the right to life. If my property rights as a shopkeeper were absolute -- if they trumped others' rights to life and due process of law -- I would be justified in shooting a six-year-old in the back of the head as he left my store in the act of shoplifting a 49-cent candy bar (my property).

We could have a fruitful discussion of all this, if we could turn down the heat and frame the question reasonably. As for me . . .

My assessment of the matter with the wedding cakes is that the LGBT customers' economic rights do not outweigh the baker's economic freedom. I don't much care whether the baker is motivated by religious beliefs or something else, even if it's a random, foolish stereotype. If he were the proprietor of the only grocery store within 100 miiles and were refusing to let gays buy any groceries, I would take a different view.

My assessment of the housing and employment matters is that they involve substantial threats to rights which outweigh the landlord's or employer's economic freedom. They do not trump proper religious freedom, so we reasonably exempt the home and relevant advocacy organizations. But they do trump the perverted religious freedom which asserts its right to force people with whom you disagree to live and work in some community or workplace other than your own.

I assert my religious freedom as constituting the right to worship as I please, while respecting others' legitimate rights; the right to preach whatever gospel I embrace; and immunity from being forced to worship in the manner of the state's or majority's choosing. Despite my personal religious views on sexual morality, this freedom is completely compatible with the presence of gays in my workplace and my apartment building.

Please Mention This to the Governor

I propose a compromise. It involves taking the other side's concern for influencing the court appeal seriously, even if it's really just a handy excuse for many of them. I can imagine this compromise being within the repertoire of the same wise governor who helped us in an indirectly related situation two years ago. The Utah Legislature was determined to force exploration of human reproductive biology out of the public school classroom and into the hallways and parking lots, where it is limited to ad hoc laboratory experiments. Governor Gary Herbert vetoed the legislation, thus solidifying the otherwise lukewarm support of this Republican state delegate.

Here's what Governor Herbert could do today. He could state publicly and for the record that he will call the Utah Legislature into a special session to consider SB 110, just as soon as the court appeals are resolved. Then, of course, he would have to keep his promise.

It would be an admirable act of leadership. It wouldn't thrill some legislators, but it would send a message to the federal judiciary that, yes, Utah is capable of governing itself in difficult matters.

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