Last year, Utah was the only state that advanced statewide nondiscrimination protections for LGBT people, leaving behind 28 states that still offer no such protections. Utah’s legislation, however, included some rather unprecedented “religious liberty” carveouts, which many conservatives have since suggested should serve as a model for other states, particularly those wrestling against the Supreme Court’s marriage equality ruling.
At the forefront of this push is Robin Fretwell Wilson, a law professor at the University of Illinois who actually helped craft the Utah bill. She has been touring the country, sharing her ideas with state lawmakers as well as the press at every opportunity, purporting to support passage of LGBT protections. “The hot spots right now are going to be the purpleish states — the ones where, when you eyeball them, you say, why the hell didn’t you already have a non-discrimination protection in the law?” she told The Atlantic this month.
But Wilson’s motivations don’t seem to be what’s best for LGBT people. In fact, at every turn, she promotes opportunities to water down these bills with exemptions that enable the various forms of discrimination they’re supposed to prevent. At other times, she is prepared to strip out whole provisions to make the rest easier to pass. For example, she has recommended that Indiana pass protections for employment and housing while leaving public accommodations alone. “Can’t we fix the two things that are easiest to agree on,” she offered the Indianapolis Star last October, “and leave the harder one for later?”
Her starting place is compromise. As she told the Georgia Voice after being asked about the many pro-discrimination “religious liberty” bills being considered there, “My basic position is that both sides have to take something off the table here.” Wilson champions her victory in Utah as the perfect example. “If it can happen in Utah, the single most conservative state in America, it can happen in Georgia.”
What Made Utah Unique
What makes Wilson’s supposed support for LGBT protections appear duplicitous is the way she ignores the unique circumstances that led to Utah’s bill. Rose Saxe, Senior Staff Attorney for the ACLU’s LGBT & AIDS Project, explained to ThinkProgress that “Utah is a really unique situation. Each state has their own existing backdrop of exemptions, and Utah already had extraordinarily broad religious exemptions in their laws. When adding LGBT protections, they came with those existing exemptions.”
“For example, religious organizations in Utah are entirely exempt from the definition of ’employer,’ and that is very unusual. That is not the way most states’ laws operate, because that means religious organizations can discriminate based on race or sex without any liability at all,” she explained. It would still be a violation under federal discrimination law, but only if the organization has more than 15 employees.
The underlying principle that led LGBT groups to agree to the “Utah Compromise” was that “sexual orientation” and “gender identity” protections would not be treated any differently than for the other categories like race and sex. Utah is the only state where the religious exemptions for all nondiscrimination laws are so broad, so the context would not be the same elsewhere. By agreeing to the kinds of religious exemptions Wilson champions in any other state, LGBT groups would have to agree to receive less protection under the law than other vulnerable groups, including religious identities.
“What we’re seeing now is a demand to treat discrimination against LGBT people differently,” Saxe explained, “to upend that careful balance and to single one deeply vulnerable community out for discrimination.” This includes letting businesses choose to discriminate based on their beliefs about marriage or about transgender people. “That idea, that businesses should get to refuse service, is completely anathema to our public accommodations principles, that once a business opens its doors to the public, it doesn’t get to pick and choose who they serve.” States are increasingly considering such provisions, which Saxe called “a very dangerous and novel path that we’re seeing surface.”
By off-setting this balance, “it suggests that LGBT discrimination is less important or less worthy of government interventions,” which creates “a hierarchy of which kinds of discrimination the government considers more important.” This communicates to business owners that anti-LGBT discrimination just isn’t as bad.
Unsurprisingly, Saxe thus finds it incredibly problematic that Utah’s law did not include public accommodations and that Wilson is advocating to other states like Indiana that they should leave them out. She highlighted how a lot of the outcry over Indiana’s Religious Freedom Restoration Act (RFRA) last year, as an example, was centered around concerns that the law would allow businesses to refuse service to LGBT people — and the public’s rejection of that idea. “Passing a bill that wouldn’t address public accommodations in a place like Indiana would just make no sense.” She noted that the bills Republicans are advancing in Indiana actually include religious exemptions that far exceed those in the Utah legislation.
Other states that have tried this separation tactic have struggled to actually pass the missing pieces later, even those known for being quite liberal. Massachusetts is still stalled on public accommodation protections for transgender people, and in New York, Gov. Andrew Cuomo (D) had to use his executive power to create the protections because the legislation could never pass the state Senate. Maryland is one of the only states that successfully added transgender protections after originally passing a bill that left certain provisions behind.
A Trojan Horse
Wilson’s past advocacy reinforces the notion that her latest support for LGBT protections are actually a Trojan-horse tactic. When the Utah law first passed, Eric Ethington at Political Research Associates uncovered that Wilson has actually been extensively engaged in helping opponents of LGBT equality pass and defend their bills. This included joining other conservative scholars to defend Arizona’s RFRA bill, which Gov. Jan Brewer (R) ultimately vetoed after public outcry that foreshadowed a similar backlash in Indiana the following year.
In a 2012 New York Times op-ed, Wilson endorsed religious exemptions that require states to continue funding organizations that discriminate, such as adoption agencies and other subsidized public services. “Without such protections,” she wrote, “groups that hew to their religious beliefs about marriage would be at risk of losing government contracts and benefits and would be subject to lawsuits from private citizens.” New York’s marriage equality law, which was under consideration at the time, “can advance one civil right without simultaneously eroding another.”
Like that op-ed, much of Wilson’s writing prior to last year focused on marriage equality legislation and the way that “religious liberty” carveouts were helping state legislatures advance those bills. In 2014, she published a thorough report in the Case Western Reserve Law Review entitled, “Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections,” in which she insisted that more significant exemptions were necessary for those who might object to marriage equality. She decried the religious accommodations that appeared in bills like New York’s, like assurances that ministers would not have to officiate same-sex marriages, calling them “meager,” “hollow,” and “purely symbolic” because clergy do not even require such protection under the First Amendment.
Instead, Wilson insisted that protections for religious groups are “crucial” because they “have faced both lawsuits and penalty by the government.” She bemoaned, for example, how the Salvation Army lost $3.5 million in social service contracts with San Francisco because it refused to provide benefits to employees’ same-sex partners. She similarly mourned how Catholic Charities has lost government funding in various states for not providing adoption services to same-sex couples.
“It is abundantly clear that existing religious liberty protections do not go far enough to protect individuals outside religious organizations,” she wrote. “Legislators have largely ignored the plight of judges, government employees, and those in the wedding industry who cannot assist with a same-sex marriage because of a ‘relationship with Jesus Christ’ — or for any other sincerely held religious reason.” She went on to call it a “cruel choice” to have to choose between “your livelihood or your conscience.”
As she’s doing now with nondiscrimination protections, Wilson’s primary argument for religious liberty exemptions in marriage equality bills was that it would help accelerate access to marriage equality. Acknowledging the Supreme Court could rule for marriage equality by 2015 (as it ultimately did), she still advocated that “bargaining for marriage equality supporters delivers a concrete gain now for real families clamoring to marry.” She even predicted the current climate of anti-LGBT bills, noting, “Ironically, the chances of enacting religious liberty protections on the heels of a Supreme Court decision may be greater in 2016 than if the Court’s decision comes later,” adding that “the bargaining may shift to sorely needed nondiscrimination protections, rather than disappearing entirely.”
But Wilson’s bargain simply doesn’t fit for these bills like it may have in the marriage equality compromises she espoused. Because exemptions in nondiscrimination bills actually directly contradict the intention of the legislation by allowing for discrimination, the same argument doesn’t sound as accommodating. The “Utah Compromise” worked because LGBT people didn’t actually have to compromise; they just secured access to the same weak protections consistent with other protected groups. By peddling that plan elsewhere, Wilson is effectively asserting that if LGBT people are asking to be protected from discrimination in all spaces, they’re actually asking for too much.