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Utah LGBT Rights Bill A Trojan Horse For Religious Right’s Agenda

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There were both cheers and tears as many in the Utah LGBTQ community celebrated the passage of a workplace and housing nondiscrimination law in the conservative Utah legislature. But behind closed doors, I suspect it’s actually the leaders of the Religious Right who are cheering the hardest.

As someone who began as an activist in the Utah LGBTQ community, and fought for years alongside countless others for full workplace and housing protections, I was overjoyed at the possibility that 2015 might finally be the year we stepped closer to equality. Too many LGBTQ Utahns, myself included, have faced that discrimination firsthand. But once the legislation was unveiled, my heart sank. While there is much to be happy with in the legislation, and the protections it offers to some of the most vulnerable citizens in the Beehive State, the law also contains a tiny Trojan Horse individual religious exemptions clause. 

The Utah bill is being called a “model” to be used in states around the nation, but we must be forewarned. The individual religious exemption in the law, as small and seemingly noninvasive as it is, could put the civil liberties of everyone at stake for decades to come.

Religious freedom is important, and as a principle has existed since before the writing of the U.S. Constitution. The 13 original colonies were a fractured bunch of near-theocracies, with various Christian sects dominating different colonies—to the detriment of anyone not a member of the particular sect in power locally. Thanks to the wisdom of Thomas Jefferson and James Madison, the principle of religious freedom in the Constitution set in motion of the disestablishment of the state churches, and the advantages they held in the public sphere. Jefferson’s famous Virginia Statute for Religious Freedom, which predated the Constitution and was the first such law to be enacted in the world, said one’s beliefs or non-beliefs cannot “enhance, diminish, or impact” one’s “civil capacity.” Individuals were shielded from the tyranny of churches who had previously sought to force them to adhere to their beliefs, and religions were shielded from governments elevating one religion over another. 

It has taken us a long time to make it work and, in truth, we are still working on it. 

But the Religious Right has launched a campaign to redefine the meaning of religious liberty, stripping away those protections and once again giving religions the power to circumscribe the rights of individual conscience. 

This coalition, led by right-wing groups such as Alliance Defending Freedom (formerly known as Alliance Defense Fund), the Becket Fund for Religious Liberty, and Liberty Counsel, is systematically working the courts and state legislatures to enact religious exemptions—essentially a right of religious institutions and individuals to decide which laws they will or will not follow.

In practical terms, this could play out as a business owner invoking faith to deny service to a LGBTQ couple, or refusing to hire Jewish employees. Or a man refusing to promote women to managerial positions because he doesn’t believe men should be subservient to women. We cannot allow such freedom of conscience to become a legal sanction for these and other forms of discrimination.

One of the Religious Right leaders heavily involved in this campaign is Dallin H. Oaks, one of the Church of Jesus Christ of Latter Day Saints’ (Mormon) senior leaders and member of their Quorum of 12 Apostles. The Mormon church frequently finds itself at odds with members of other faiths who don’t believe it to be a true Christian religion. However, unlike some of his brethren in the all-male leadership, Oaks is deeply involved in the work with the Religious Right. He sits on the board of the international culture warring organization World Congress of Families. He received the 2013 “Canterbury Medal” for his “defense of religious liberty” from the Becket Fund. In speeches before conservative groups, Oaks frequently extols the benefits of individuals being able to using their faith as an excuse to dodge pesky civil rights laws.

That’s why, when just a few weeks ago Oaks held a press conference to announce that he and the Mormon church were ready to endorse a statewide nondiscrimination law for LGBTQ people if only the leaders of the local LGBTQ community would sit down and negotiate a “compromise,” many were suspicious.

Oaks was up front about what he was looking for. He and other leaders of the Mormon church enumerated the religious exemptions they wanted included with a nondiscrimination law, including a right for government and health care workers to deny service to LGBTQ people.

SB296, the bill that resulted from those negotiations, was hailed by equality groups and the Mormon church as a “historic compromise” of nondiscrimination and religious freedom. The bill does indeed ban workplace and housing discrimination against LGBTQ people in Utah. But buried underneath those important protections, is a small clause guaranteeing the right of individuals to express faith-based anti-LGBTQ views at work.

It’s a small exemption. Seemingly inconsequential in comparison to the benefits the new law could bring. Viewed purely as a standalone piece of legislation, SB296 does a lot more good than bad and it’s unsurprising to see so many social justice-minded people supporting it.

But the equality movement cannot survive if we view legislation through a short-term and narrow lens. To do so is to ignore the context of the long-term consequences of the Religious Right’s national agenda—which only needs to get a foot in the door to get the ball rolling. 

Oaks’ goal with the nondiscrimination law was not to pass full individual religious exemptions all at once. To use the analogy of the unfortunate amphibian, the frog will jump out of the pot if put directly into boiling water. But turn the heat up slowly, and the frog cooked to death. For the LGBTQ community to endorse the Religious Right’s corrupt redefined version of religious freedom, even in this one seemingly minor way, opens the door for the expansion of religious exemptions in both breadth and number. 

And as if to confirm this suspicion as quickly as possible, within two hours of the “compromise” SB296 passing the Utah legislature, conservatives in the Utah House of Representatives had also passed two other bills that had not been part of the negotiations: one granting county clerks the right to refuse to perform any marriage they opposed on religious grounds, and the other paving the way for full individual religious exemptions in the public marketplace. 

It’s a victory for the Right not only in the success of imposing their agenda into law, but in winning the larger PR battle at a critical moment in time. 

As I discussed in Resisting the Rainbow: Right-Wing Responses to LGBTQ Gains, the Mormon church has only ever given in to pressure by the LGBTQ community when its back is against the wall in a public relations battle. After months of heavy protesting over their involvement in California’s Prop 8, they endorsed a municipal nondiscrimination law in Salt Lake City in 2009. In 2010, after 2nd-in-command Mormon leader Boyd K. Packer claimed that there was no way God would allow people to be born gay, protests around the church’s headquarters garnered international attention and prompted Packer’s comments to be officially stricken from the church’s records.  

So why did the Mormon church unexpectedly come to the table? Could it be a delayed response to their highly-publicized excommunication of faithful feminist members for asking for a public discussion about why the patriarchal church does not allow female leadership? Unlikely, that was months ago and the discussion has largely died down.

A more plausible explanation is the forthcoming World Congress of Families (WCF) event scheduled for Salt Lake City in October. The international coalition of U.S. culture warriors held a conference last year in Moscow—their name was removed just before the conference started to prevent negative publicity over the situation in Ukraine—where attendees unanimously voted to urge their home countries—like the United States—to pass laws modeled on the Russian anti-LGBTQ law. (That law criminalizes any positive speech about LGBTQ people under the guise of protecting children from “propaganda.”) 

WCF attendees and other U.S. conservatives, such as Rick Warren, Sharon Slater, Brian Brown and others, are known around the world for their work in exporting the culture wars abroad, which has resulted in outcomes like the “kill the gays” bill in Uganda.

Dallin H. Oaks is a member of the WCF board of directors. 

Thanks to Oaks’ work in helping to pass the “compromise” legislation, the WCF and the Religious Right’s goal of codifying their redefined version of religious freedom into law has taken a giant step forward. Once Pandora’s Box is opened, there’s no shutting it.

 

Eric Ethington is a journalist, activist, and researcher. Originally from Utah, he now works in Boston for a social justice think tank. His writing, advocacy work, and research have been featured on MSNBC, CNN, Fox News, CNBC, the New York Times, The Guardian, and The Public Eye magazine. Follow him on Twitter @EricEthington. 

Image: Gov. Gary Herbert signing SB296 into law. Photo by Salt Lake City Council Member Erin Mendenhall via Twitter

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News

‘Assassination of Political Rivals as an Official Act’: AOC Warns Take Trump ‘Seriously’

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April 25, 2024

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Democratic U.S. Rep. Alexandria Ocasio-Cortez is responding to Thursday’s U.S. Supreme Court hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was a U.S. president, and she delivered a strong warning in response.

Trump’s attorney argued before the nation’s highest court that the ex-president could have ordered the assassination of a political rival and not face criminal prosecution unless he was first impeached by the House of Representatives and then convicted by the Senate.

But even then, Trump attorney John Sauer argued, if assassinating his political rival were done as an “official act,” he would be automatically immune from all prosecution.

Justice Sonia Sotomayor, presenting the hypothetical, expressed, “there are some things that are so fundamentally evil that they have to be protected against.”

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“If the president decides that his rival is a corrupt person, and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?” she asked.

“It would depend on the hypothetical, but we can see that could well be an official act,” Trump attorney Sauer quickly replied.

Sauer later claimed that if a president ordered the U.S. military to wage a coup, he could also be immune from prosecution, again, if it were an “official act.”

The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and an expert on Russia, nuclear weapons, and national security affairs, was quick to poke a large hole in that hypothetical.

“If the president suspends the Senate, you can’t prosecute him because it’s not an official act until the Senate impeaches …. Uh oh,” he declared.

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U.S. Rep. Alexandria Ocasio-Cortez blasted the Trump team.

“The assassination of political rivals as an official act,” the New York Democrat wrote.

“Understand what the Trump team is arguing for here. Take it seriously and at face value,” she said, issuing a warning: “This is not a game.”

Marc Elias, who has been an attorney to top Democrats and the Democratic National Committee, remarked, “I am in shock that a lawyer stood in the U.S Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”

CNN legal analyst Norm Eisen, a former U.S. Ambassador and White House Special Counsel for Ethics and Government Reform under President Barack Obama, boiled it down: “Trump is seeking dictatorial powers.”

Watch the video above or at this link.

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Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

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11 hours ago

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April 25, 2024

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Legal experts appeared somewhat pleased during the first half of the Supreme Court’s historic hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was the President of the United States, as the justice appeared unwilling to accept that claim, but were stunned later when the right-wing justices questioned the U.S. Dept. of Justice’s attorney. Many experts are suggesting the ex-president may have won at least a part of the day, and some are expressing concern about the future of American democracy.

“Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6,” Axios reports. “A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.”

The most likely outcome “might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 case until after Inauguration Day in 2025.”

Slate’s Mark Joseph Stern, who covers the courts and the law, noted: “This did NOT go very well [for Special Counsel] Jack Smith’s team. Thomas, Alito, and Kavanaugh think Trump’s Jan. 6 prosecution is unconstitutional. Maybe Gorsuch too. Roberts is skeptical of the charges. Barrett is more amenable to Smith but still wants some immunity.”

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Civil rights attorney and Tufts University professor Matthew Segal, responding to Stern’s remarks, commented: “If this is true, and if Trump becomes president again, there is likely no limit to the harm he’d be willing to cause — to the country, and to specific individuals — under the aegis of this immunity.”

Noted foreign policy, national security and political affairs analyst and commentator David Rothkopf observed: “Feels like the court is leaning toward creating new immunity protections for a president. It’s amazing. We’re watching the Constitution be rewritten in front of our eyes in real time.”

“Frog in boiling water alert,” warned Ian Bassin, a former Associate White House Counsel under President Barack Obama. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”

NYU professor of law Melissa Murray responded to Bassin: “We are normalizing authoritarianism.”

Trump’s attorney, John Sauer, argued before the Supreme Court justices that if Trump had a political rival assassinated, he could only be prosecuted if he had first been impeach by the U.S. House of Representatives then convicted by the U.S. Senate.

During oral arguments Thursday, MSNBC host Chris Hayes commented on social media, “Something that drives me a little insane, I’ll admit, is that Trump’s OWN LAWYERS at his impeachment told the Senators to vote not to convict him BECAUSE he could be prosecuted if it came to that. Now they’re arguing that the only way he could be prosecuted is if they convicted.”

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Attorney and former FBI agent Asha Rangappa warned, “It’s worth highlighting that Trump’s lawyers are setting up another argument for a second Trump presidency: Criminal laws don’t apply to the President unless they specifically say so…this lays the groundwork for saying (in the future) he can’t be impeached for conduct he can’t be prosecuted for.”

But NYU and Harvard professor of law Ryan Goodman shared a different perspective.

“Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward. It’d be a travesty for Justices to delay matters further. Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.”

NYU professor of history Ruth Ben-Ghiat, an expert scholar on authoritarians, fascism, and democracy concluded, “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and and involves giving them a respected platform.”

The Nation’s justice correspondent Elie Mystal offered up a prediction: “Court doesn’t come back till May 9th which will be a decision day. But I think they won’t decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.”

Watch the video above or at this link.

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Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

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14 hours ago

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April 25, 2024

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Justices on the U.S. Supreme Court hearing Donald Trump’s claim of absolute immunity early on appeared at best skeptical, were able to get his attorney to admit personal criminal acts can be prosecuted, appeared to skewer his argument a president must be impeached and convicted before he can be criminally prosecuted, and peppered him with questions exposing what some experts see is the apparent weakness of his case.

Legal experts appeared to believe, based on the Justices’ questions and statements, Trump will lose his claim of absolute presidential immunity, and may remand the case back to the lower court that already ruled against him, but these observations came during Justices’ questioning of Trump attorney John Sauer, and before they questioned the U.S. Dept. of Justice’s Michael Dreeben.

“I can say with reasonable confidence that if you’re arguing a case in the Supreme Court of the United States and Justices Alito and Sotomayor are tag-teaming you, you are going to lose,” noted attorney George Conway, who has argued a case before the nation’s highest court and obtained a unanimous decision.

But some are also warning that the justices will delay so Special Counsel Jack Smith’s prosecution of Trump will not take place before the November election.

READ MORE: ‘To Do God Knows What’: Local Elections Official Reads Lara Trump the Riot Act

“This argument still has a ways to go,” observed UCLA professor of law Rick Hasen, one of the top election law scholars in the county. “But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).”

The Economist’s Supreme Court reporter Steven Mazie appeared to agree: “So, big picture: the (already slim) chances of Jack Smith actually getting his 2020 election-subversion case in front of a jury before the 2024 election are dwindling before our eyes.”

One of the most stunning lines of questioning came from Justice Ketanji Brown Jackson, who said, “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into Office knowing that there would be no potential penalty for committing crimes. I’m trying to understand what the disincentive is, from turning the Oval Office into, you know, the seat of criminal activity in this country.”

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She also warned, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? It’s right now the fact that we’re having this debate because, OLC [Office of Legal Counsel] has said that presidents might be prosecuted. Presidents, from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning, but once we say, ‘no criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”

“Why is it as a matter of theory,” Justice Jackson said, “and I’m hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts?”

“So,” she added later, “I guess I don’t understand why Congress in every criminal statute would have to say and the President is included. I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the President just like everyone else.”

Another critical moment came when Justice Elena Kagan asked, “If a president sells nuclear secrets to a foreign adversary, is that immune?”

Professor of law Jennifer Taub observed, “This is truly a remarkable moment. A former U.S. president is at his criminal trial in New York, while at the same time the U.S. Supreme Court is hearing his lawyer’s argument that he should be immune from prosecution in an entirely different federal criminal case.”

Watch the videos above or at this link.

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