Examining Religious Exemptions to LGBT Protections

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By Ephrat Livni, Esq. on February 01, 2016 11:58 AM

Compromise is often the only solution. Extremes rarely lead to agreement. You can try to get your way and likely fail, or you can concede a bit in order to advance your interests. It is generally accepted that by compromising, we make incremental progress, and that's a good thing.

But when do we make so many exceptions to a rule that it becomes irrelevant? Is that what's happening to new and proposed LGBT legal protections around the country, as Think Progress reports? Are provisions for religious institutions undermining the very cause these laws are mean to protect, including LGBT people's rights to nondiscriminatory hiring?

Looking to Utah

The state of Utah last year advanced legal protections for its LGBT citizens that included unprecedented religious carve-outs, reportedly. The compromise solution put Utah ahead of 28 states that have no such protections. But it also raises questions about how much compromise is too much.

Does making allowances for LGBT discrimination for religious reasons ultimately undermine the very purpose of the legislation? And what influence will the Utah exceptions have on the kind of laws passed around the nation?

Some LGBT rights activists have expressed concern about using Utah as an example, saying the religious exceptions to legal protections for LGBT citizens there are dangerous. Using Utah as precedent will lead to deceptive legislation nationwide, they argue, and they warn that we should be wary of one person in particular, who was instrumental to the passage of the Utah law, and is promoting similar leglislation elsewhere.

"At the forefront of this push is Robin Fretwell Wilson, a law professor at the University of Illinois ... 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," writes Think Progress. But Wilson could help to de-claw any laws that do pass, making it okay for religious organizations to discriminate.

So What Does This Mean?

The Utah law, for example, does not consider religious organizations employers, thus allowing discrimination to continue in such institutions despite new civil rights protections. What this means is that in theory Utah employers can't discriminate, but in practice it's allowed in some places, perhaps the places most likely to object to hiring LGBT workers.

That is a bitter irony for those who need protection from discrimination and fought for new laws in Utah. It is also as a reminder to the rest of us that, although compromise is good, sometimes nothing is won without sticking to your guns.

Consult With Counsel

If you are an employer concerned about hiring and other policies in your place of business, consult with counsel. An employment attorney can help with labor law and a business lawyer can advise you on keeping commercial operations legal and profitable.

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