Human Rights for All: From Culture War to Not a War at All

Perhaps the most tragic aspect of the culture war is that it leads us to believe that we have to pick between important human rights. This is simply not true. All human rights deserve dignity. Carefully constructed laws can mesh rights that are often seen as in conflict with one another. We write as two people who, in the months before the U.S. Supreme Court’s 2015 landmark same-sex marriage decision, Obergefell v. Hodges, sensed that something larger than even the ability to marry was at stake. Americans needed a new script for how to live together as one people, despite our deepest differences.

One of us in 2015 was the Senate Majority Whip to the Utah Senate and is now the Senate president; the other is a religious liberty scholar at the University of Illinois. Together, we helped bring into existence something many believed impossible: the protection of LGBT persons by an overwhelmingly conservative, republican legislature.

Despite skepticism, Utah gave the full LGBT community more protections from discrimination than New York had extended at that time, while protecting the ability of those who believe in traditional marriage to authentically be themselves in public and private. Utah proved in concrete terms that guaranteeing the inherent dignity of LGBT persons did not have to wash out the religious character of faith-based communities or individuals. Utah’s groundbreaking legislation took the heat out of a fraught debate about what same-sex marriage would mean for everyone else. The device: Utah married protections for sexual minorities with protections for people of faith, taking these communities out of positions of conflict.

Culture War Struggles Feel Existential When We Are in Them

Seven years past Obergefell, the culture war struggles over same-sex marriage and its impact on the institution of marriage have subsided. In the years before Obergefell, a steady drumbeat of stories hammered or discounted fears about whether same-sex marriage would “redefine marriage.” Ironically, the news wave broke almost immediately after Obergefell, as Figure 1 shows.

Despite fears, Americans continue to embrace marriage. Although marriage rates continue to dip, as they have steadily since the mid-1980s, Americans overwhelmingly organize their families within marriage. Much like an actual war, as the old front over same-sex marriage closed, new fronts opened over LGBT rights. Utah avoided ruptures over same-sex marriage and created new protections for the LGBT community by appealing to a common desire: the ability to fully and authentically be oneself, in public and private.

Utah’s Appeal to Basic Human Rights for All

America as “the great melting pot” is truer than ever.

America remains a deeply religious country. Americans are more likely to incorporate worship services and prayer into their weekly lives and more strongly value faith, making the United States the “most devout” Western democracy. The First Amendment protects free exercise of religion. But it is this long history of protection and widespread benefit that make us take our religious rights for granted.

Many Americans see LGBT rights as the civil rights movement of their lifetimes. Many have a loved one, coworker, or friend who is gay, bringing the need to protect LGBT persons from discrimination into sharp focus. It is not preordained that faith and LGBT communities are at odds with each other. In fact, many individuals are members of both. And many in the faith community have been key allies in protecting the LGBT community, just as many in the LGBT community have been key allies in protecting people of faith. Some who championed the Utah Compromise found support in their own theology, emphasizing that Christians are called to love people. Others seized on identity of interests: just as religious people cannot and do not shed their convictions when they leave home, neither do LGBT persons. Utah’s approach represents the best of the American tradition: live and let live.

One consequence of an increasingly plural America is that we encounter differences more often. As a people, we have to strive to make room for each other, even when our interests would appear to collide. Americans overwhelmingly support nondiscrimination protections. In fact, most Americans think it is already illegal to discriminate against people based on who they love or how they self-identify.

Like LGBT persons, members of the faith community fear being marginalized for their beliefs. Both want security and the ability to leave the culture wars aside. (Religious Freedom, LGBT Rights, and the Prospects for Common Ground, Eskridge and Wilson, eds., 2018).

On this scaffold of mutual respect, Utah built a new script for peaceful coexistence. On some questions, Utah enacted novel two-way-street or “parity” protections. For example, Utah’s laws assured each community that it could speak about marriage, faith, and sexuality in the open and at work—not just in the privacy of their homes—so long as the speech was non-harassing. Utah provided that lawful, non-harassing speech about an employee’s religious, moral, or political beliefs, whether expressed inside or outside the workplace, cannot be the basis for taking action against an employee.

 Utah averted other predictable clashes. Someone would need to be available to solemnize relationships, a service never before provided by the state. Taxpayer-paid employees might decline to facilitate a same-sex marriage for religious reasons. To avoid chokepoints on the path to services, Utah rejected the usual win-lose outcomes. Instead, Utah created a new, agile structure. Each county clerk’s office must designate a willing celebrant in the office, or it could outsource the function to persons in the community, including judges, religious authorities, or other elected officials. This expanded choice of options to fulfill a new governmental duty meant that individual employees of the clerk’s office could “step off” without harm to the public. Same-sex and heterosexual couples both receive seamless access to marriage; no one is treated differently. Utah lawmakers began from a capacious understanding of human rights and the belief that religious dissenters to same-sex marriage and those seeking to marry want the same thing: to be themselves in their homes, in their families, in their workplaces, and in the public square. By sheer force of goodwill, the Utah legislature has ensured that one person’s rights need not come at the expense of another’s.

Much Work to Be Done

One of the great triumphs of life in America has been the promise that Americans will be evaluated fairly in things like hiring, housing, and access to public places. Across America, people are protected from exclusion from public places because of national origin, religion, sex, and race. This national consensus is simple: it is unfair to treat people differently based on irrelevant characteristics. Federal law enforces this promise of fair treatment across parts of the economy, and some state laws reach farther.

However, more than one in two Americans, in more than half of U.S. states, can nonetheless be denied a job or a place to live based on who they love or how they identify their gender.

In Defense of Partial Answers

Americans like to swing for the fences, enamored with legislation that covers every possible wrinkle. However, omnibus legislation can make finding consensus more difficult. Utah’s landmark legislation covered only housing and hiring. It did not reach public accommodations because no underlying municipality had done so, meaning that state lawmakers could not benefit from their experiences.

Laws giving partial answers can prime people to live together as a community. In a nationwide study by the Public Religion Research Institute, a greater fraction of Utahans supported nondiscrimination protections for LGBT Americans than in any other state, except one. Not making the perfect the enemy of the good often paves the way for even more profound recognition of rights. Since protecting the LGBT community from discrimination in housing and hiring, Utah has enacted sweeping hate speech laws, repealed a law prohibiting “promotion” of homosexuality in schools, and banned gay conversion therapy, one of the most conservative states to do so.

The Role of Legislatures

In culture-war matters, litigation often dominates. Lawsuits percolate for years, only to yield answers that govern a narrow fact pattern and give certainty only to the named litigant. Masterpiece Cakeshop erased the sanction imposed on Colorado baker Jack Phillips for refusing to bake a wedding cake for a same-sex couple, yet Phillips has faced later lawsuits. That the Supreme Court would decide the case discouraged state lawmakers from sorting out how same-sex couples could be treated with dignity without imperiling the livelihoods of small mom-and-pop wedding vendors.

This brings us to the complicated relationship between federal and state law. In Bostock v. Clayton County, the U.S. Supreme Court interpreted Title VII’s protection against sex discrimination in employment to include sexual orientation and gender identity. At first blush, one might think Bostock moots the need for Congress or state legislatures to bolster protections for LGBT persons. But Title VII’s foundational protections extend only to businesses that employ 15 or more employees.

Small businesses make up 65.6 percent of all U.S. businesses establishments, employing over 17.4 million Americans. Workers who remain outside of Title VII represent a lot of states’ workforces. Even after President Joe Biden’s executive order applying Bostock to all federal agencies, LGBT people are left outside core protections of federal law governing public places. Our federal civil rights public accommodations law, Title II, dates to 1965. It prohibits discrimination on the basis of race, religion, and national origin—but not sex. And because it does not speak to sex, it cannot be used to solve many questions facing us. This places a premium on states’ acting for the general welfare.

American leaders have a penchant for executive orders, which are contingent by their very nature and can change from administration to administration. People who were protected suddenly find themselves unprotected. This is as true for those on the “right” as it is on the “left.” Administrative whiplash is bad for the nation. It lends itself to a feeling that rights come from power as opposed to the inherent worth of persons. Momentous decisions should command respect from more than just the Americans who voted for the last administration.

The vacuum left by federal law means that states can do the all-important work of passing laws that fit their unique populations. Utah’s laws are different from Texas’s, which are different from New Hampshire’s. And while the states can learn from each other, having tailored state approaches is baked into our Constitutional design. 

A Call to Act “Today, and Each Day”

As fractured as America seems, there is a will for closing our divides, especially among tomorrow’s leaders. College students across America call on us to embrace our differences and act out of tolerance “today, and each day.” They know that “in times when diversity is ‘canceled,’ . . . shar[ing] [our] humanity become[s] even more invaluable to maintain a tolerant democracy” (Shiloh Bentacourt).

These students teach us that if we are to move from a culture war to not-a-war-at-all, our laws have to “mov[e] past merely recognizing the existence of opposing viewpoints towards . . . how we might be able to compromise” (Kyle Jorstad). They envision a society in which all of us are “acceptant, kind, and empathetic,” leaving room for others to be who they are (Marquis Fulgam).

Conclusion

Culture wars are stoked by conflict. Rather than asking how we can live together as one people, they ask which right should win. But it is not self-evident that we have to chose one right above another. States can protect the rights of all people. Utah’s leadership in ensuring that one person’s rights need not come at the expense of others sets a critical example for policymakers and advocates around the globe. By crafting laws that recognize the inherent dignity of all people and protect each person’s right to be fully themselves, we can achieve human rights for all.