Meeting in the middle on religious and LGBTQ rights

by Jonathan Rauch in "Deseret News"

It’s not every day that an atheist witnesses a miracle, but I saw one more than five years ago in Salt Lake City.

On March 4, 2015, at a downtown press conference, a group including LGBTQ leaders, representatives of The Church of Jesus Christ of Latter-day Saints and mostly conservative legislators announced they had forged a groundbreaking agreement. A new state law, which would become a model around the nation, extended an array of nondiscrimination protections to lesbian, gay, bisexual and transgender Utahns. The Utah Compromise, as it was called, struck a careful balance. It ensured that certain religious prerogatives, such as allowing religious colleges to limit married-student housing to opposite-sex couples, would be accommodated. With bipartisan support, the proposal became law.

In disbelief, I nearly rubbed my eyes when I read the news.

After all, just a few years before, the LGBTQ and Latter-day Saint communities had been at odds in 2008 over California’s ballot proposition banning same-sex marriage. The disagreements felt more like enmity at times as the debate over defining marriage was channeled into a zero-sum political contest. Within the gay community, including for me personally, the passage of Proposition 8 felt crushing.

Yet by March 2015, just seven years later, everything looked much different.

Local LGBTQ advocates and the church realized there had to be a better way forward. Quietly and cautiously, they began meeting to find common ground. It wasn’t easy, but as time went on the two sides found it: Whatever their conflicting view of marriage, no one should lose a home or a job just for being a member of a sexual minority. In 2009, the church had raised eyebrows in secular circles by throwing its support behind Salt Lake City’s ban on anti-gay discrimination in housing and employment. That provided a foothold, and the two sides decided to deepen it and begin the climb toward cooperation. Building trust and learning to communicate took years, but the efforts came to fruition with the dramatic announcement of SB296, the 2015 Utah Antidiscrimination and Religious Freedom Amendments.

The bargain made national headlines. Immediately, people wondered if the success could be replicated in other states, or even in Congress. No one thought it would be easy. For years, LGBTQ civil rights and religious liberty had been on a collision course. Sexual minorities want the same assurances of access to jobs, housing, schools and commercial establishments that other historically marginalized minorities routinely receive. People of faith already enjoy many of those same protections and sometimes take them for granted. But even today, in most states, sexual minorities lack important anti-discrimination guarantees, except when it comes to employment (which the Supreme Court covered in its historic 2020 Bostock v. Clayton County decision, extending workplace anti-discrimination protections to LGBTQ people).

But religious organizations and faith-based nonprofits have their own worries. They fear being forced by law to provide services to same-sex weddings, open religious schools’ married-student housing to same-sex couples, place adoptive children with same-sex parents and take other steps that violate their religious teachings. They worry that religious nonprofits will lose access to the tax code’s important deduction for charitable giving. They worry that law and secular culture will gradually squeeze them out of civic life by treating their beliefs and religious practices as illegal, immoral or both.

Until now, that disagreement has caused deadlock at the national level. Recently, however, something has stirred. There might — just might — be a shot at negotiating an end to the hostilities. Utah has something to teach the country after all.

I am not the most obvious candidate to make the case for a truce in the gay-religious culture war. When it comes to being an outsider in American life, I won the trifecta: I am an atheistic homosexual Jew. Or a Jewish homosexual atheist. Whichever way you stack the labels, I never felt I had a choice about any of them. I was Jewish, that I knew. But from a young age I also knew I couldn’t believe in God, even if I tried (and I did try in my early teens). I also knew I was attracted to my own sex, and my increasingly desperate efforts to suppress that reality were unavailing. It was clear I would be a misfit, despised from many directions, and so I compensated by rejecting the faith traditions that seemed to reject me. “Of course,” the young version of me would say, “no one should be able to discriminate because of silly superstitions! Of course, no fair and enlightened society tolerates bigotry, with or without biblical proof-texts.”

In those days, I saw little reason to show empathy toward faith traditions that in many cases denounced me as abhorrent. Born in 1960, a very different time, I grew up in a world where homosexuals were regarded as mentally ill. They could not work for the federal government, could not serve in the military, could not even get a security clearance to work as a government contractor. Entrapped by police departments’ morals squads, gay people whose arrests were written up in the newspaper would lose their jobs and become pariahs the next day.

Religious leaders, even those who disapproved of homosexuality, could have preached compassion and toleration, but they very often did the opposite. All I had to do was turn on the radio to hear some preacher dispatching people like me to eternal damnation. During the AIDS epidemic, religious people commonly turned their backs, saying we had only ourselves to blame. Was that, I wondered, what Jesus would have done? I was angry at America’s religious community, and I had reason to be.

So why am I one of the gay world’s more outspoken proponents of a bargain that would allow the faithful to discriminate against LGBTQ people in certain ways and in certain circumstances?

Partly because I’m a First Amendment nut. I am a true believer in free speech, the cornerstone of any society that is free and fact-based. And the First Amendment coequally enshrines religious freedom. They belong together, as the Founding Fathers realized: Expressive freedom and religious freedom are the twin pillars of freedom of conscience, America’s raison d’être since English Protestants arrived in North America to escape persecution back home.

Having spent my first 25 years as a closeted homosexual, trying to be someone I wasn’t, I understand the agony of living inauthentically and denying who you are — and I believe that in the LGBTQ rights struggle we are fighting for all Americans to live as their truest selves. Obviously, conflicts will arise over competing moral standards, but if we can accommodate others’ consciences and lifestyles at a reasonable cost to ourselves, we should. Morally as well as politically, it is in everyone’s interest to share the country. Political theorists call that arrangement pluralism, and there is simply no other way a diverse democracy can function.

Of course, when we talk about making reasonable accommodations, that nice four-syllable word, “reasonable,” covers a multitude of complex and contentious policy choices. Progressive, secular gays may simply never agree with conservative, religious straights on what is reasonable in many aspects of law and policy. Striking a balance we can all live with is hard work.

But there is another reason, besides pluralism, why both sides should do that work. It goes to the very foundation of our democracy — and to the heart of our most important, yet also most misunderstood, constitutional concept.

While reporting this article, I asked a number of Utahns about SB296, the 2015 compromise legislation, and several said something that surprised me. In effect, they commented, “Please don’t call it a compromise.” Stuart Adams, a Republican state senator who was instrumental in forging the agreement (and who today is the president of the Utah Senate), said he didn’t like the term. “My deep-seated religious beliefs are not compromisable,” he said. “We didn’t compromise. We found a way forward where each entity was given additional rights and protections, but no one’s core values were compromised.” Troy Williams, the executive director of Equality Utah, the state’s main LGBTQ organization, told me he avoids the C-word, too: “I’ve always used the phrase ‘collaboration.’ We get around the table and we work together on something. There’s an idea that if you’re compromising on something you’re giving up on your values or you’re not standing with integrity in your beliefs. I don’t think we did any of that.”

In recent years, Americans have adopted the notion that to compromise is to settle for less than is really fair, or to sacrifice integrity for some transactional gain. The most famous tale about compromise in our culture is the biblical story of King Solomon’s suggestion of splitting a baby in two. The point of the story is that the baby’s real mother proved her integrity by refusing to compromise. Americans still support compromise in the abstract, but less so on actual issues. Their unwillingness to vote for politicians who choose negotiating over moral combat has been a long-term cost of the culture wars.

Sometimes it is wrong to compromise on who you are or what you believe. Having lived in the closet, I certainly know what an inauthentic life can feel like. Even so, making compromise into a four-letter word dangerously misconstrues what compromise really is — and why James Madison and his colleagues placed compromise at the very heart of our remarkable system.

The Constitution does many things, but at bottom it is a mechanism to force negotiation. No actor in politics can do very much unilaterally. Congress, the president and the courts can all check and balance each other, as can the federal government, the states and even local authorities like school boards. On its surface, this all seems perversely cumbersome. Why all the veto points, when a monarchy seems so much simpler and more efficient?

Partly to guard against tyranny, of course. But Madison had a bigger idea in mind, too. In our politics, compromise is the balance wheel providing both stability and dynamism, both caution and innovation, both contestation and cooperation.

The reason is that, as any experienced negotiator knows, sitting across the table gives people information and understanding about the other side. Often it builds relationships, and sometimes even friendships. In healthier times, when Congress was less burdened with extreme partisanship, committee chairs and ranking members commonly developed close working relationships even while pursuing their very different agendas. They didn’t necessarily agree, but they understood each other and knew how to disagree.

Simply by being required to interact and do business, the parties to a negotiation develop the civic habits of peaceful coexistence — and they unlearn the habits of domination and distrust. That was what happened in Utah. “To me the process here may be even more important than the legislation,” Williams told me. “When I sit down with folks, I’ll never see them as an enemy or opponent. I’ll see them as future ally, even if we’re not there yet.”

In successful negotiations, a compromise rarely looks like merely splitting the difference. Finding a resolution requires not just arithmetic but creativity. When negotiators hit a snag, they look for workarounds and innovations. They might expand the scope of the deal or reshuffle its elements, throw in some sweeteners, recruit new allies or seek mediators. Sometimes they wind up inventing an approach no one had even thought of before. The U.S. Constitution was born that way. When it was clear revising the Articles of Confederation would fail, the framers tossed them out and started from scratch. If two children cannot agree on whether to play checkers or cards, they might agree to ride bikes instead, or even invent their own hybrid game using checkers and cards. They get creative.

We saw such creativity in Utah. To sweeten the deal, the negotiators developed innovative provisions barring workers from being fired or punished for speaking their mind outside the workplace on political or religious topics. That gave both sides — LGBTQ and religious — a valuable new conscience protection.

Far from being an unfortunate necessity, then, compromise is our political order’s method of constantly learning, adapting and innovating. It is also the way our system accommodates differences while getting enough buy-in to form a governing consensus. If compromise fails, our Constitution and country fail.

So here is a plea from one atheistic Jewish homosexual. Stop apologizing for doing what the Constitution demands. Compromise is the nation’s most powerful force for progress and social conciliation. It is not only creative but often transformative. When I asked Equality Utah’s Williams to name the downsides of SB296 from the point of view of Utah’s LGBTQ community, he couldn’t think of a single one. “The culture has changed here in Utah,” he said. “In every possible way, Utah is now a safer and more welcoming state for the LGBTQ community.” When I asked if the same change would have happened without SB296, he replied with a firm no. “It changed the dynamic forever in the Legislature. I’ve watched so many legislators open up their hearts in this process.” And that openness was a two-way street.

With apologies to King Solomon, that is not splitting a baby.

After the Utah compromise, hopes that it would be widely replicated were quickly dashed. Some observers concluded that unusual conditions in Utah — the powerful role of the church, the structure of the state’s preexisting discrimination laws and maybe some special Utah magic — made such a deal difficult to pull off beyond Utah’s borders. Still, a few years ago, a center-right LGBTQ advocacy group called the American Unity Fund joined with a coalition of conservative faith groups — including such heavy hitters as the Council for Christian Colleges and Universities, the Seventh-day Adventists, the National Association of Evangelicals, and, yes, once again, The Church of Jesus Christ of Latter-day Saints — to quietly hammer out a model federal civil rights bill combining the same two essential ingredients from Utah’s success: anti-discrimination protections coupled with specific religious exemptions. Introduced in the last Congress and again in February by Rep. Chris Stewart, R-Utah, the Fairness for All Act, as it is called, attracted more brickbats than bouquets. Many progressive LGBTQ and civil liberties groups wanted the anti-discrimination protections without any exceptions; many conservative religious groups opposed anti-discrimination measures altogether.

But the climate seemed to improve this spring. It began to look as if the Senate might be able to negotiate a deal. Maybe, just maybe, elements of the Fairness for All Act and the Equality Act — an uncompromising civil rights bill passed by the House — could be creatively combined to get the job done.

Any such deal would be a long shot, but it seems like a shot worth taking. Making a pact on nondiscrimination and religious exemptions would strengthen and clarify the rights of both sides. But equally important, a successful negotiation could reverse the spiral of mistrust and hostility that has characterized relations between LGBTQ Americans and conservative religious denominations for so many bitter and polarized years. That goodwill would do more to prevent real-world discrimination than any mere statute could accomplish.

The biggest gains of all, though, would accrue to the whole country. An agreement could show America what SB296 showed Utah: Even when we disagree on our core beliefs about faith and identity and justice, we can still share the country. We can still reverse spirals of polarization. We might even replenish respect for America’s longest four-letter word: compromise.

Jonathan Rauch is a senior fellow at the Brookings Institution and the author of “The Constitution of Knowledge: A Defense of Truth.”

This story appears in the May issue of Deseret Magazine.