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Both religious people and LGBT people experience discrimination in our society. Neither is acceptable.

The Equal Employment Opportunity Commission publicizes statistics on discrimination complaints by protected category which show that there are real instances of discrimination. The data, shown here, on how these complaints are disposed of show that they are similar to discrimination based on religion. Most are found to have no reasonable cause for concluding there was discrimination, but a small yet significant number are found to result in discrimination. Others are settled formally or informally.

Fairness for All fights for laws that make sure that everyone can pursue the American dream on equal footing, without being disadvantaged by hurdles in the workplace, the marketplace, or in housing. Where faith, sexual orientation, or gender identity aren’t relevant, they shouldn’t be roadblocks to success—not in one’s work as an accountant, not at the grocery store, and not while searching for an apartment. So long as people are denied full participation in society, there will be a need for laws that ensure mutual respect and access to the American dream. Arguing that laws need only be passed when society reaches a discrimination breaking point is no solace to those who experience discrimination today—one person fired from her job for who she loves is one too many, just as one religious business owner forced out of business for her beliefs is one too many.

Some argue there is no need for new religious liberty protections in states that don’t have LGBT nondiscrimination laws. They contend the marketplace will police discrimination because so many Americans believe that gay and trans persons should not be treated differently just because they are gay or trans. But America is far from being of one mind about this. Recall the Tennessee hardware store owner who, after Obergefell v. Hodges, the Supreme Court opinion nationalizing same-sex marriage, proudly posted a "No Gays Allowed" sign in his store front.

Opponents of LGBT protections also contend that barring discrimination against LGBT persons in the law will create a legal conflict, exposing them to risk. They contend, in essence, that they’ll be better off when others are left unprotected. This thinking not only ignores the very real discrimination experienced by the LGBT community, but it also ignores their own need for religious liberty protections teed up by pre-existing laws written without marriage in mind. For example, Obergefell has combined with older SOGI laws to raise real questions, and uncertainty, about whether religious organizations and individual believers can step aside from performing or assisting marriages for religious reasons, with impunity. When states legislated around marriage, they gave religious traditionalists certainty in their laws about such matters.

Opponents of protections for all also ignore the parts of their faith tradition that emphasize justice for all persons and that urge love for those, even persons with whom we might disagree.

In states that do not now have non-discrimination laws, opponents of such laws point to a lack of proof of the need for them. Such proof is hard to come by when the very civil rights commissions tasked with making sure that Americans are not penalized on account of their race or sex do not presently have enforcement authority for sexual orientation or gender identity. But some states have begun to investigate claims as a form of sex discrimination. And they have uncovered wrongs like that in Maitland v. Aveda, where instructors at an Ohio beauty school allegedly harassed a young many by, telling him that “Jewish faggots” were not welcome at the school and he was removed from the class. Just as it is wrong to fire a person for being Jewish, it is wrong to fire a person for being gay. Both are irrelevant to one’s capacity to be a cosmetologist.

Combining protections for people of faith with protections for sexual minorities is not only the right and decent thing to do; it delivers more protections for religious believers and institutions than stand-alone measures can deliver.

See what scholars are saying:

“It is no secret that religious liberty can be a divisive issue. Precisely because of that, discussions about the issue should be informed by concrete data. Although it can be tempting to build a narrative about religious liberty based on a small number of high profile cases—such as Hobby Lobby and Little Sisters of the Poor—those cases are not the whole story. The whole story is more complex—and more interesting. It is a story of prisoners and asylum seekers, employees and Ten Commandments monuments, Muslims and nonbelievers. It is a story of a relatively small number of cases, brought predominantly on behalf of non-Christian religious minorities, meeting limited success.” Luke Goodrich & Rachel Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353 (2018)

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Although culturally, gay, lesbian, and transgender people have become more accepted in our society, acceptance is not universal, nor has it reached a point to eradicate discrimination. The Equal Employment Opportunity Commission publicizes statistics on discrimination complaints which show that there are real instances of discrimination. The data, shown here, demonstrates how these complaints are disposed of: many are found to have no reasonable cause for concluding there was discrimination, but a small yet significant number are found to result in discrimination. Others are settled formally or informally.

See what scholars are saying:

“In thirty states or just under, a significant majority of states, LGBT individuals have no statewide protection against private businesses denying them service or employment . . . . But new statutes are very unlikely to pass in reddish states and in Congress unless they include exemptions for religious organizations.” Thomas C. Berg, Religious Freedom and Nondiscrimination, 50 Loyola U. Chi. L.J. (forthcoming 2019).

“Religious conservatives . . . face a ticking demographic time bomb. Not only do most Americans now support same-sex marriage rights, but each successive generation supports them more strongly . . . . If conservatives refuse gay-rights laws and exemptions now, they will likely be stuck later with gay-rights laws and no exemptions.” Thomas C. Berg, Religious Freedom and Nondiscrimination, 50 Loyola U. Chi. L.J. (forthcoming 2019).

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Despite claims that religious accommodations will be eroded by secularization or liberal politics, history shows us that religious accommodations, granted in state and federal statutes, including those in the 1964 Civil Rights Act, endure.

Fairness for All legislation offers another unique advantage: a locking mechanism known as a non-severability provision that deters judicial challenges. Utah’s Fairness for All legislation is a good example; it has not been challenged by anyone since it was enacted in 2015. That should be no surprise: under its non-severability provision, if one part of the law is struck, the entire law falls, including LGBT protections, so it’s in everyone’s self interest to make an agreement and move on.

See what scholars are saying:

“This Article tests the claim that bargains reached over LGBT rights will be fleeting. It shows, to the contrary, that the bargains reached around marriage equality have proven stable since enactment, as have decades-old exemptions to racial nondiscrimination laws, known as the “Mrs. Murphy” exemptions. These settled compromises have endured—notwithstanding dramatically shifting views about the underlying civil right—propped up by a balancing of competing interests and concerns over take-backs. Interest groups also protect settled gains. Consequently, there is no reason to believe that bargains over LGBT rights will be any more ephemeral than those struck over race.” Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights, 95 Boston Univ. L. Rev. 951 (2015).

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The Fairness for All Initiative aims to draft laws that provide clear, reliable protections and duties for everyone. Some claim that laws protecting along the basis of gender identity are inherently unstable because what constitutes gender identity is itself unstable. It is not so. For example, Utah, which through Fairness for All legislation protects against discrimination along the basis of gender identity, addressed concerns that gay or transgender persons could bring frivolous employment discrimination claims by creating a careful definition of gender identity. In Utah's law, “gender identity” is defined according to the Diagnostic and Statistical Manual (DSM-5), a clinical publication, and can be shown by providing evidence, including, but not limited to, medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person's core identity, and not being asserted for an improper purpose. By anchoring to the DSM-5, Utah’s law does not stand on the shifting sands of a scientific organization’s treatment of a medical diagnosis, this alone builds in a fixedness.

See what scholars are saying:

“A legislator quickly learns – as do students of the law – that definitions do a lot of the important work in statutes and policy making generally. One definition would prove especially thorny and central to reaching an accord between religious stakeholders, the LGBT community, social conservatives, and employers and landlords: the definition of gender identity. We believed a medically objective definition was needed to provide as much clarity about when duties and protections were triggered as possible. We agreed on the following definition for gender identity drawn from the medical community: “‘Gender identity’ has the meaning provided in the [American Psychiatric Association’s] Diagnostic and Statistical Manual (DSM-5). A person’s gender identity can be shown by providing evidence, including, but not limited to, medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person’s core identity, and not being asserted for an improper purpose.” The condition must continue and be treated for at least six months. By requiring documentation, employers and landlords receive an important safeguard against fraudulent claims. Transgender renters and employees gain valuable protections against discrimination in employment and housing. Some might dismiss the clarity we built in as an unwarranted burden, having to provide a doctor’s note. We adapted the documentation requirement from Connecticut and other states with a longer history of protecting transgendered individuals. Like Justice Louis Brandeis’s laboratories of experimentation, we sought consciously to benefit from the experience of legislators across the country about what works.” Sen. J. Stuart Adams, Taking Colliding Trains Off a Collision Path: Lessons from the Utah Compromise for Civil Society, in The Contested Place of Religion in Family Law (Robin Fretwell Wilson ed., Cambridge Univ. Press. 2018)

“To address the concern that gay or transgender persons would bring frivolous employment discrimination claims, the Utah Legislature took care with definitions. For example, “gender identity” is defined according to the Diagnostic and Statistical Manual (DSM-5) and can be demonstrated by a doctor’s note or consistent and uniform assertion of the gender identity, among other modes of proof.This clear-cut definition provides Utah businesses with obvious notice of when nondiscrimination duties attach as to a transgender employee. For the transgender worker, the clear-cut definition gives clear-cut assurance that they are protected and cannot legally be treated differently as a worker just because they are transgender.” Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, Univ. Conn. L. Rev. (forthcoming 2019).

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Although religious bigots do exist, the grand majority of religious people practice their religion because of their sincerely-held beliefs, not because they want to hurt other people. For example, a religious florist happily provided flowers to her friend, a gay man, for years, but because of her beliefs about marriage, declined to provide flowers for his same-sex wedding ceremony.

See what scholars are saying:

“Lawmakers should not conflate duties placed on regulated businesses, however broadly defined, to serve all people with a duty on any individual, even the owner, to provide a religiously infused service. These are legally distinct. As Olson intimated shortly after Obergefell, they are morally distinct, too. The primary thrust of public accommodations laws is that no one who comes into a shop is told to get out, no one is sent down the street. That overarching goal can be accomplished by regulating the business, not every person in it. Pushing this distinction expressly into law would go a long way towards ensuring that sorely needed protections for the LGBT community do not come at the expense of shop owners’ livelihoods.” Robin Fretwell Wilson, Bathrooms and Bakers: How Sharing the Public Square Is the Key to a Truce in the Culture Wars, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds. Cambridge Univ. Press, 2018).

“Such “civil rights” simplism, if I can call it that, fails to generate just or stable resolutions to the controversies. More generally, and more troublingly, such simplisms do great damage to the fabric of our society and our civil discourse.” Steven D. Smith, Against 'Civil Rights' Simplism: How Not to Accommodate Competing Legal Commitments, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds. Cambridge Univ. Press, 2018).

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RFRAs operate to police needless burdens on religious belief or practice by governments. In some states, RFRAs supplement state constitutional protections for religious free exercise. In others, RFRA adds protections not available under state constitutions. RFRAs do this by providing courts with a multi-stage balancing mechanism that weighs the government’s purposes behind a law with the burden placed upon a person’s religion by that law. Thus, each case decided in the courts under RFRA comes out differently. Often, the religious claimant doesn’t leave with a religious accommodation. In fact, when it comes to laws that protect against sexual orientation and gender identity discrimination, courts across the country have decided that RFRA doesn’t permit a religious accommodation. The only court that held RFRA allowed for a religious accommodation from a SOGI nondiscrimination law was overturned on appeal. In that case, Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., a Michigan funeral home operator contended the federal RFRA entitled him to an accommodation from the ban on sex discrimination under the federal employment nondiscrimination law, Title VII of the Civil Rights Act of 1964, which the Equal Employment Opportunity Commission interprets to also ban discrimination on the basis of gender identity. The dispute centered on whether the funeral home operator must allow a transgender employee to dress consistent with her gender identity; the owner contended that because he operated the funeral home according to his faith, which compelled him to serve grieving people, RFRA would absolve him of the duty. The United States Court of Appeals for the Sixth Circuit disagreed. The case has now been appealed to the Supreme Court, which has yet to take up the case. Thus, a state RFRA is not the tool some conservatives think will protect religious freedom in these areas. RFRAs are exceedingly unlikely to overcome a duty not to discriminate. This is so because avoiding discrimination is seen by the courts as a compelling interest for not extending an accommodation. Absent the kind of creative approaches that Utah developed to meld LGBT rights with religious liberty, there often exists no obviously less restrictive method to achieve the nondiscrimination law’s goal other than barring treatment based on illicit characteristics. Still, some voices in religious communities have agitated for RFRAs precisely to stall gay rights, wrongly ascribing to RFRA the ability to do so.

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Liberty is not a zero-sum game. Just because someone else is protected against unlawful discrimination, doesn’t mean that you won’t be either. Same goes for the ability to live your life openly and authentically according to your faith, sexual orientation, or gender identity. In Utah, where legislation was passed protecting both the faith and LGBT community a few years ago, the faith community has not experienced a decline in their ability to live their faith. Similarly, the additional religious freedom protections in Utah’s laws hasn’t caused the LGBT community to face more discrimination. Liberty can be a win-win.

See what the scholars are saying:

“If one takes seriously America’s professed commitment to liberty and justice for all, then we have to get past the intransigence and take the core needs of each side seriously. If we are to continue living with each other in relative peace and equality, then we must find solutions that give LGBT persons the rights to employment, housing, access to public accommodations, and marriage with as fancy a wedding as they desire, and that, to the maximum extent possible, spare conscientious objectors from violating their deeply held religious commitments. Such solutions are possible. Americans can have liberty and justice for all. What is needed to make that possibility a reality is mutual tolerance and political will.” Douglas Laycock, Liberty and Justice for All in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

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Yes, some laws have had the effect of disfavoring different views and actions. Laws that respect all groups remove nastiness from the public sphere and the marketplace, not sanction it. Poorly drafted, one-sided laws (whether drafted without same-sex marriage's effect upon the religious community in mind or whether drafted without consideration of the LGBT community) empower one group to act ugly if that group so chooses and pits disagreeing groups against each other in high-conflict zones. Fairness for All laws make it an even playing field, giving all groups access and opportunity.

See what the scholars are saying:

“If one takes seriously America’s commitment to liberty and justice for all, then we have to get past the intransigence and take the core needs of each side seriously.” Douglas Laycock, Liberty and Justice for All in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“The 2015 gay-Mormon deal in Utah demonstrated that conciliation is still politically possible and socially ennobling. The polarization and backlash and general nastiness following upon one-sided mini­ RFRAs and bathroom bills in places like Indiana and North Carolina demonstrated that the absolutist path is politically costly and socially divisive.” Jonathan Rauch, Gay Rights, Religious Liberty, and Nondiscrimination; Can a Train Wreck Be Avoided?, 4 Univ. Ill. L. Rev. 1195 (2017)

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Although religious bigots do exist, the grand majority of religious people practice their religion because of their sincerely-held beliefs, not because they want to hurt other people. For example, a religious florist happily provided flowers to her friend, a gay man, for years, but because of her beliefs about marriage, declined to provide flowers for his same-sex wedding ceremony.

See what scholars are saying:

“Specific exemptions operate differently. They run from the narrow to the broad. In the narrowest form, a specific exemption drops from the scope of statutory duties an individual or group, much as the frequent exemptions for small employers in federal legislation do. Consider, for example, Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII generally bans discrimination by covered employers on the basis of race, national origin, sex, or religion. Yet, Title VII, on the face of the statute, also exempts religious employers that want to make employment decisions consistent with their religious convictions. Title VII authorizes religious organizations to “employ employees of a particular religion.” Robin Fretwell Wilson, When Governments Insulate Dissenters from Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions, 48 UC Davis L. Rev. 728-29 (2014).

“Masterpiece Cakeshop’s signal contribution was its call for a new pluralism that leaves space for everyone. This new pluralism should assure that ‘religious beliefs can[] legitimately be carried into the public sphere or commercial domain’ ‘without subjecting gay persons to indignities when they seek goods and services in an open market.’ Laws should be crafted ‘with tolerance, without undue disrespect to sincere religious beliefs,’ while not treating LGBT persons as ‘social outcasts or as inferior in dignity and worth.’ Presumably this thick pluralism should be the hallmark not only of newer SOGI laws enacted going forward but of older SOGI laws as well.” Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, Univ. Conn. L. Rev. (forthcoming 2019).

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The LGBT population is widespread throughout the entire United States, even in red states, comprising anywhere from two to eight percent of a state’s population.These are valued members of our communities who should be given a fair shake whether in employment or housing or in public places. The law is here to respond to injustice. Excluding people from the public square from a place to live or a way to make a living, for not reason other than their sexuality, is simply unjust.

See what the scholars are saying:

“Being told ‘just wait, it is getting better’ is cold comfort to someone treated unjustly today, as the real cases of discrimination documented below by civil rights commissions show. In this sense, justice delayed is justice denied.

Ironically, some of those who claim SOGI nondiscrimination laws are unnecessary are passionate spokespersons ‘for those who refuse to bow down before, or offer sacrifices to, the false gods of the Sexual Revolution.’ Presumably these voices would believe that one owner forced out of business by laws that do not ‘respect . . . the conscience rights’ of dissenters is one too many. As I argue elsewhere, combining protections for people of faith with protections for sexual minorities is not only the right and decent thing to do; it delivers more protections for religious believers and institutions than stand-alone measures can deliver.” Robin Fretwell Wilson, The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns, 20 Lewis & Clark L. Rev. 1373, 1392-93 (2017).

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Yes, it’s true, the courts have provided important rights for the LGBT community, like gay marriage. But court decisions often create more questions than they solve. Legislation, on the other hand, that has the benefit of multiple avenues of input, various drafts, and less of an adversarial process, can tackle bundles of questions at once, in a community-specific way. For example, when the United States Supreme Court decided that gay marriage should be legalized, it didn’t answer the question about who would do the marrying, whether churches had to do it, whether churches that didn’t would maintain their tax exempt status, how religious adoption agencies would be affected, and so on. But legislation can carefully proceed through those questions and consider them together. In Utah, many of those questions were put to rest in one legislative session.

See what scholars are saying:

“Under this engagement model, compromises can be negotiated. Daunting difficulties exist, but they can be confronted and resolved. Indeed, for people who are committed to both the liberty and equality rights of the LGBT community and to religious liberty for people of all faiths, there really is no choice but to pursue negotiated compromises, even if doing so sometimes appears to be futile.” Alan Brownstein, Choosing among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy in Religious Freedom, LGBT Rights, and the Prospects for Common Ground]3

“We cannot avoid the hard work of negotiated compromise by passing the buck to the courts.” Alan Brownstein, Choosing among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy in Religious Freedom, LGBT Rights, and the Prospects for Common Ground]6

“If there is one lesson from Utah’s experience around marriage and LGBT rights, it is this: find a statutory solution before judicial rulings are made. In a pluralistic society with differing views about the great questions facing us, there is a better way than litigation. Legislating, rather than litigating, gives us the ability to find common ground.” J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“The legislative process has the advantage of negotiation and compromise; it tempers absolutes while allowing both sides to share in the gains and losses.” J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“So what does the [Masterpiece Cakeshop] decision accomplish? As a practical matter, by denying the claims of the more absolutist partisans of religious freedom and LGBTQ rights, Masterpiece Cakeshop may open up a space for a more thoughtful examination of the interaction of LGBTQ rights and religious freedom, both of which reflect deeply felt worldviews and both of which offer strong dignity, equality and liberty claims. Masterpiece Cakeshop’s efforts to delegitimize completely hostile approaches towards both LGBTQ rights and religious freedom may empower those who seek areas where compromise is possible. This, at its best, could lead to significant protections for both LGBTQ rights and religious freedom, à la the Utah Compromise.” Elizabeth Clark, And the Winner Is . . . Pluralism?, SCOTUSblog (June 6, 2018)

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States have a duty to protect all their citizens. State RFRAs (or protective state constitutions) are not consistent in their interpretation, and, as such, require additional legislation to support the protection of the state’s religious citizens.

Take, for example, Barronelle Stutzman and her case in Washington. When she acted in response to her faith, not only were there offensive lawsuits carried out against her, but with the Washington Supreme Court’s ruling, she, and other artists, would now be required to participate in the creation of art for purposes that go against their beliefs, as it was ruled that art is not included in the freedom of speech.

Furthermore, RFRA has never been used to successfully wipe aside a non-discrimination duty under a civil rights law.

It is a province of legislature to sort out how protections for all can be meshed. Utah is a prime example of this as they passed laws that equally protected people of faith and LGBT persons.

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Although it’s appropriate to be concerned about personal privacy and sexual predators in places where we’re most vulnerable, like in bathrooms and locker rooms, there have been literally zero reported attacks by transgender people in these sorts of places. It makes you wonder, “Then what are we worried about?”

See what the scholars are saying:

“Just as bathroom-of-one’s-birth laws do little to advance public safety, they do nothing to protect religious liberty, despite claims to the contrary by some gay rights opponents. Bathroom bills are part of a larger trend to ‘treat regulation or deregulation of sexual minorities as though it were deregulation or regulation of [conservative believers’] own religious practices.’” Robin Fretwell Wilson, The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns, 20 Lewis & Clark L. Rev. 1373 (2017).

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Liberty is not a zero-sum game. Just because someone else is protected against unlawful discrimination, doesn’t mean that you won’t be either. Same goes for the ability to live your life openly and authentically according to your faith, sexual orientation, or gender identity. In Utah, where legislation was passed protecting both the faith and LGBT community a few years ago, the faith community has not experienced a decline in their ability to live their faith. Similarly, the additional religious freedom protections in Utah’s laws hasn’t caused the LGBT community to face more discrimination. Liberty can be a win-win.

See what scholars are saying:

“If one takes seriously America’s professed commitment to liberty and justice for all, then we have to get past the intransigence and take the core needs of each side seriously. If we are to continue living with each other in relative peace and equality, then we must find solutions that give LGBT persons the rights to employment, housing, access to public accommodations, and marriage with as fancy a wedding as they desire, and that, to the maximum extent possible, spare conscientious objectors from violating their deeply held religious commitments. Such solutions are possible. Americans can have liberty and justice for all. What is needed to make that possibility a reality is mutual tolerance and political will.” Douglas Laycock, Liberty and Justice for All in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

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Religious accommodations do not operate as a blank check to frustrate government policy objectives. They are enforced as written and so are more predictable in their effects. Even RFRAs, which have been labelled as “licenses to discriminate” have not yielded large numbers of cases seeking religious exemptions under applicable law and between 45% and 50% of this small number decided in favor of the government. Through the nation’s history, the government has allowed religious exemptions even when they are at odds with core purposes, like national defense, because they have not hampered the accomplishment of those purposes.

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Civil rights laws have the noble role of molding our society so everyone can live and flourish without unnecessary hurdles. Because our society is a melting pot of religious, cultural, racial, and sexual communities, civil rights laws have to be very carefully written to take everyone into account. Often, that means the laws provide an exception so people can live their lives according to their conscience. One of the most influential civil rights laws, the Civil Rights Act of 1964, which outlaws discrimination on a number of bases, contains numerous exceptions.

No one should be singled out for disfavored treatment based on an irrelevant characteristic that is integral to the person's identity--characteristics like who one loves or the God one worships, if the person worships at all.

Private groups--like church employers--do have a stake in members, and employees, singing to the same sheet of music. Without an ability for like-minded persons with similar values to come together, America may lose the rich diversity it has now. Preventing unjust treatment while preserving our existing diversity--so that there is room for all--often can be achieved with focussed legislation, taking care not to spill over to, and inadvertently squeeze out, religious groups and commitments.

See what the scholars are saying:

“Title VII permits reasonable accommodation for a religious belief or practice where it does not cause an undue burden on the employer or co-workers.” J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

"The time-honored requirement of the Civil Rights Act — that employers seek to find reasonable solutions to accommodate employees’ . . . — is an important pillar of our country’s pluralistic workforce. . . . Regardless of whether we agree with [someone]'s beliefs, we should all be glad that the laws of our country require employers to create an accommodating workplace, and to do so in an evenhanded way that doesn’t allow targeting of some disfavored groups. Such laws protect the diversity and dignity of everyone." Stephanie Barclay, Gayle Myrick gay marriage case: Don't pick and choose which employee to accommodate, USA Today (Feb. 12, 2018)

“Moreover, even if you see religious accommodations as concessions, they are affordable concessions. Outside of religious institutions and organizations at the very core of the First Amendment, there just aren't many landlords and schools and places of business that want to discriminate, and the number is declining by the day.” Jonathan Rauch, Gay Rights, Religious Liberty, and Nondiscrimination; Can a Train Wreck Be Avoided?, 4 Univ. Ill. L. Rev. 1195 (2017)

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Both religious people and LGBT people experience discrimination in our society. Neither is acceptable.

The Equal Employment Opportunity Commission publicizes statistics on discrimination complaints by protected category which show that there are real instances of discrimination. The data, shown here, on how these complaints are disposed of show that they are similar to discrimination based on religion. Most are found to have no reasonable cause for concluding there was discrimination, but a small yet significant number are found to result in discrimination. Others are settled formally or informally. Fairness for All fights for laws that make sure that everyone can pursue the American dream on equal footing, without being disadvantaged by hurdles in the workplace, the marketplace, or in housing. Where faith, sexual orientation, or gender identity aren’t relevant, they shouldn’t be roadblocks to success--not in one’s work as an accountant, not at the grocery store, and not while searching for an apartment. So long as people are denied full participation in society, there will be a need for laws that ensure mutual respect and access to the American dream. Arguing that laws need only be passed when society reaches a discrimination breaking point is no solace to those who experience discrimination today--one person fired from her job for who she loves is one too many, just as one religious business owner forced out of business for her beliefs is one too many.

Some argue there is no need for new religious liberty protections in states that don’t have LGBT nondiscrimination laws. They contend the marketplace will police discrimination because so many Americans believe that gay and trans persons should not be treated differently just because they are gay or trans. But America is far from being of one mind about this. Recall the Tennessee hardware store owner who, after Obergefell v. Hodges, the Supreme Court opinion nationalizing same-sex marriage, proudly posted a "No Gays Allowed" sign in his store front.

Opponents of LGBT protections also contend that barring discrimination against LGBT persons in the law will create a legal conflict, exposing them to risk. They contend, in essence, that they’ll be better off when others are left unprotected. This thinking not only ignores the very real discrimination experienced by the LGBT community, but it also ignores their own need for religious liberty protections teed up by pre-existing laws written without marriage in mind. For example, Obergefell has combined with older SOGI laws to raise real questions, and uncertainty, about whether religious organizations and individual believers can step aside from performing or assisting marriages for religious reasons, with impunity. When states legislated around marriage, they gave religious traditionalists certainty in their laws about such matters. Opponents of protections for all also ignore the parts of their faith tradition that emphasize justice for all persons and that urge love for those, even persons with whom we might disagree.

In states that do not now have non-discrimination laws, opponents of such laws point to a lack of proof of the need for them. Such proof is hard to come by when the very civil rights commissions tasked with making sure that Americans are not penalized on account of their race or sex do not presently have enforcement authority for sexual orientation or gender identity. But some states have begun to investigate claims as a form of sex discrimination. And they have uncovered wrongs like that in Maitland v. Aveda, where instructors at an Ohio beauty school allegedly harassed a young many by, telling him that “Jewish faggots” were not welcome at the school and he was removed from the class. Just as it is wrong to fire a person for being Jewish, it is wrong to fire a person for being gay. Both are irrelevant to one’s capacity to be a cosmetologist. Combining protections for people of faith with protections for sexual minorities is not only the right and decent thing to do; it delivers more protections for religious believers and institutions than stand-alone measures can deliver.

See what scholars are saying:

“It is no secret that religious liberty can be a divisive issue. Precisely because of that, discussions about the issue should be informed by concrete data. Although it can be tempting to build a narrative about religious liberty based on a small number of high profile cases—such as Hobby Lobby and Little Sisters of the Poor—those cases are not the whole story. The whole story is more complex—and more interesting. It is a story of prisoners and asylum seekers, employees and Ten Commandments monuments, Muslims and nonbelievers. It is a story of a relatively small number of cases, brought predominantly on behalf of non-Christian religious minorities, meeting limited success.” Luke Goodrich & Rachel Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353 (2018)

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Tough problems require creative solutions. The Fairness for All Initiative has proposed creative public accommodations laws that make sure everyone in the public receives service without forcing religious business owners to personally perform labors which compromise their religious beliefs. These proposed laws reject old public accommodations laws that only leave room for one community. And they fall squarely in line with what the United States Supreme Court in Masterpiece Cakeshop, the case about the Christian baker, said society must do: make space for everyone in the marketplace to live according to their convictions.

We can respect the desire to not bake a cake, for example, without turning away the public. Indeed, Baronelle Stutzman, Jack Phillips and others have long served LGBT persons for other services, but declined personally to bake the cake. It should be possible to enact laws that both have all customers treated with dignity and served by businesses on Main Street without dictating how that business staffs any particular order. This same principle animates Title VII, permitting persons who cannot personally perform a service because of deep-seated religious belief to step aside when doing so can be reasonably accommodated and causes no undue burden.

See what the scholars are saying:

"To be sure, there are some cases dealing with services or products offered in the public sphere where the government would prevail over First Amendment objections. But in the public accommodation context, the foundational government interest capable of trumping First Amendment objections . . . is the government’s interest in “removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups." When courts balance these important interests, the religious objector will not always win. But the important point is that in these balancing scenarios, the religious objector’s rights should be given some weight. The theory advanced by critics under their view of Smith would give religious objections virtually no weight at all." Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. REV 1595, 1624 (2018)

“[T]he burden on [religious business owners] outweighs the burden on individuals like [GLSO’s leaders],” who have “no difficulty finding [a substitute source for the desired service],” while business like Hands On might be forced to “abandon [their] business.” Andrew Koppelman, Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law, 88 S. Cal. L. Rev. 619, 629-30 (2015).

"Our nation is seeing a surge of "corporate conscience," where companies make decisions apart from their bottom line. This is good for all Americans. The New York Times recently described the growing "moral voice of corporate America" after a wave of companies, including Google, Airbnb, Uber, and PayPal, severed ties with white supremacist groups in response to the riots in Charlottesville. This phenomenon is not new, nor is it limited to opposing white supremacy. For years, Pfizer has refused to sell some of its drugs to state prisons because the company doesn't want them used in capital punishment. Chipotle refused to cater a Boy Scouts' Jamboree because of the scouts' then-policy about gay scout leaders. A gay coffee shop owner recently refused to serve a group of pro-life activists, ejecting them from his store. These business owners made moral choices about what they're going to support. A similar moral choice is at the heart of the Masterpiece Cakeshop case.” Stephanie Barclay, Religious Baker Who Refused to Make a Wedding Cake for Gay Couple Deserves Protection Whether You Agree with Him or Not, Philadephia Inquirer (Jan. 19, 2018).

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Masterpiece Cakeshop wasn't a huge win for one side or another. Rather, it was a win for pluralism—the concept that there is space for all of us to peacefully live together, even though we have different views. In that [case], the United States Supreme Court called the nation to do better and craft solutions “with tolerance, without undue disrespect to sincere religious beliefs,” while refusing to treat LGBT persons as “social outcasts or as inferior in dignity and worth.” That's what Fairness for All laws are all about.

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“Same-sex couples and religious dissenters make parallel claims to liberty. They each argue that a core aspect of their identity is so fundamental that it should be left to each individual, free of all nonessential regulation. Their conduct cannot be separated from their sexual orientation or their religious beliefs. Believers can no more fail to act on their understanding of God's will than all gays and lesbians can remain celibate.

“They each seek to live out their identities in public as well as in private. Same-sex couples are entitled to free access to the marketplace, but so are religious dissenters. The question is how to maximize access for both sides without requiring either to surrender core elements of their identity.” Douglas Laycock and Thomas C. Berg, “We’re lawyers who support same-sex marriage. We also support the Masterpiece Cakeshop baker.” VOX (Dec. 6, 2017).

“Regardless of one’s view of the specific holding in this case, Justice Kennedy’s serious treatment and embrace of both the religious liberty and civil rights claims in this case is encouraging for the pursuit of common ground and compromise.” Rabbi David N. Saperstein, Masterpiece Cakeshop: Impact on the Search for Common Ground in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“On hotly contested moral issues, the law should “create a society in which both sides can live their own values.” Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. Ill. L. Rev. 839, 877 (2014).

"To be sure, there are some cases dealing with services or products offered in the public sphere where the government would prevail over First Amendment objections. But in the public accommodation context, the foundational government interest capable of trumping First Amendment objections . . . is the government’s interest in “removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups." When courts balance these important interests, the religious objector will not always win. But the important point is that in these balancing scenarios, the religious objector’s rights should be given some weight. The theory advanced by critics under their view of Smith would give religious objections virtually no weight at all." Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. REV 1595, 1624 (2018)

“So what does the decision accomplish? As a practical matter, by denying the claims of the more absolutist partisans of religious freedom and LGBTQ rights, Masterpiece Cakeshop may open up a space for a more thoughtful examination of the interaction of LGBTQ rights and religious freedom, both of which reflect deeply felt worldviews and both of which offer strong dignity, equality and liberty claims. Masterpiece Cakeshop’s efforts to delegitimize completely hostile approaches towards both LGBTQ rights and religious freedom may empower those who seek areas where compromise is possible. This, at its best, could lead to significant protections for both LGBTQ rights and religious freedom, à la the Utah Compromise.

Every state debate and the national discussion will certainly be distinctive, but surely there are pressing issues on the agendas of those advocating LGBTQ rights and religious freedom that could be constructively addressed through thoughtful engagement and legislation once the bakers lose the national spotlight. The majority opinion in Masterpiece Cakeshop concludes with an exhortation that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” If Masterpiece Cakeshop encourages this kind of mutual tolerance and fosters efforts to recognize the dignity both of LGBTQ individuals and of religious conscience, then perhaps pluralism will have won the day.” Elizabeth Clark, And the Winner Is . . . Pluralism?, SCOTUSblog (June 6, 2018)

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Tough problems require creative solutions. The Fairness for All Initiative has proposed creative solutions so religious adoption agencies can follow their religious mission while at the same time, gay parents can have access to adoptions funded with public money.

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“As to religious agencies providing government-funded services, President Obama signed an executive order that maintains protections for the ability of social service providers to retain their religious character while receiving government aid (so long as religious activities like worship, education and proselytization are separated by time or location from programs funded by direct government aid). At the same time, the order embraced common-ground recommendations to provide augmented religious liberty protections for social service beneficiaries.” Rabbi David N. Saperstein, Masterpiece Cakeshop: Impact on the Search for Common Ground in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

"No court has ever ruled that way, that if you get a dime for anything you do, you essentially become the state . . . That would be a totally novel trailblazing argument that would put religious charities across the country at risk, from homeless shelters to soup kitchens." Stephanie Barclay, Why children have the most to lose in the latest battle over LGBT and religious rights, Deseret News (July 10, 2018)

“I do think there is a way forward in a way that doesn’t need to be a zero-sum game where one side needs to lose and the other wins. I really think we can find a way to say, “Hey, any loving parent that wants to foster can have a clear pathway to fostering” and at the same time faith-based groups that have been serving kids and families for decades continue to be part of the child welfare system. . . .

“I really do think that we can map out a basic agreement—which I think goes back all the way to the Constitution—where we say, “Faith-based organizations are a vital part of this—we need them to be for the sake of kids—and yet, they can retain their unique character as long as every willing parent has a path to fostering. So, we want to make sure the Jewish family does, the Muslim family, the Christian family, the atheist family—if they’re qualified. As long as they have a path. . . .

“The goal should be diversity in the public square, whether in our public discussions and debates or in our child welfare system. The more diverse partners we have, each with their own strengths and viewpoints, is really key to the greatness of the American experience.” Jedd Medefind, “Christian Foster Care Reopens Debate on Religious Freedom and Government,” On Point, WBUR (Jan. 17, 2019)

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Tough problems require creative solutions. The Fairness for All Initiative has proposed creative solutions so religious adoption agencies can follow their religious mission while at the same time, gay parents can have access to adoptions funded with public money.

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“Claims to [same-sex] marriage and to religious freedom can both rest in part on the recognition that people with practices that are unfamiliar or objectionable to others can still contribute to the common good. That approach may seem quixotic in today’s culture wars…. Yet the inconvenient fact remains that religious organizations—conservative ones as much as any—contribute substantially to serving others,” Thomas C. Berg, “Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good,” in Eskridge and Wilson, eds., Religious Freedom, LGBT Rights, and the Prospects for the Common Ground 307, 314-15 (2018).

“As to religious agencies providing government-funded services, President Obama signed an executive order that maintains protections for the ability of social service providers to retain their religious character while receiving government aid (so long as religious activities like worship, education and proselytization are separated by time or location from programs funded by direct government aid). At the same time, the order embraced common-ground recommendations to provide augmented religious liberty protections for social service beneficiaries.” Rabbi David N. Saperstein, Masterpiece Cakeshop: Impact on the Search for Religious Freedom, LGBT Rights, and the Prospects for Common Ground

"No court has ever ruled that way, that if you get a dime for anything you do, you essentially become the state . . . That would be a totally novel trailblazing argument that would put religious charities across the country at risk, from homeless shelters to soup kitchens." Stephanie Barclay, Why children have the most to lose in the latest battle over LGBT and religious rights, Deseret News (July 10, 2018)

“What the Church looks for in the wider society is not the right to dominate or rule but rather a spirit of toleration, even openness, not only to its teachings but also to its forms of worship and its faith-inspired ways of serving those in need.” Archbishop William E. Lori, The “Demands” of Faith, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

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The notion of separation of church and state is rooted in the First Amendment’s Establishment Clause. However, that clause doesn’t prohibit referencing religion in matters of government and politics. The government doesn’t have to remove religious references from the public square. It just must make sure it doesn’t give preference to a certain religion or non-religion.

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“What the Church looks for in the wider society is not the right to dominate or rule but rather a spirit of toleration, even openness, not only to its teachings but also to its forms of worship and its faith-inspired ways of serving those in need.” Archbishop William E. Lori, The “Demands” of Faith, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“ state neutrality means a strong commitment not only to LGBTQ rights, but also to religious freedom. This does, of course, not mean that religious freedom will always trump LGBTQ rights, but that legislatures and courts will look closely to find ways that continue to let religious actors participate widely in the public square in ways that still protect or at least do not significantly erode LGBTQ rights. The so-called “Utah compromise” legislation follows this approach: it mandated additional LGBTQ rights against discrimination in housing and employment at the same time as it provided protections for employees and organizations that oppose same-sex marriages. State registrars of marriages may opt out of registering same-sex marriages, but “step out” in invisible ways that respect the dignity of same-sex couples and ensure that someone is always available to perform and license same-sex marriages. From this robust civil society approach, religious freedom, in a world where state neutrality also has a commitment to LGBTQ rights, permits individuals and institutions to freely believe and manifest beliefs opposing LGBTQ rights without facing state opprobrium or withdrawal of funding. Failure to do so, indeed, would become religious discrimination. The state is instead committed to a broad public square where state power and funding is not used to advance or oppose particular religious beliefs.” Elizabeth Clark, Neutrality, Public Space, and Discrimination by Religious Organizations in the united States, Quaderni di Diritto e Politica Ecclesiastica, Apr. 1, 2018

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To the contrary, many typically Republican states have passed laws that protect the LGBT community from discrimination. Utah is one of the greatest examples, where legislators protected the LGBT community from discrimination in employment and housing.

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“The easiest thing for the Utah State Legislature to have done would have been to provide assurance to the religious community only. But we charted a new path: We gave much-needed protections to two communities often pitted against one another–people of faith and the full LGBT community. This resulted in a stable law that has brought peace, security, and respect to all Utahns.” J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“Still, we are proud to have enacted protections that outstrip those in many ‘blue’ states. Indeed, nondiscrimination norms established in the Utah Compromise shape Utah’s culture to be a more inclusive, tolerant one–even in public places.” J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“Striving for fairness for all offered Utah a way to protect the LGBT community while cementing protections for the religious community.” J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

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Having an opinion about something and discriminating against someone are two different things. People hold different, yet reasonable, opinions about marriage. LGBT nondiscrimination laws don’t enforce a certain opinion about marriage. Rather, they make sure that whatever your opinion is, you shouldn’t be discriminated against for it—not when you’re trying to get a job, not when you’re trying to rent an apartment, and not when you’re trying to hire a plumber. In Utah, just to make sure this was the case, the legislature chose to forbid discrimination based upon a viewpoint in marriage, in and outside the workplace.

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“There are hopeful signs that sorely needed protections against discrimination in public accommodations can be extended to the full LGBT community. All across the nation, LGBT advocates and people of faith are sitting down to discuss more nuanced laws that protect both communities in the areas most core to them. Sometimes legislators participate in – and mediate – these conversations. In other cases, stakeholders are meeting on their own.” Robin Fretwell Wilson, Bathrooms and Bakers: How Sharing the Public Square Is the Key to a Truce in the Culture Wars in Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds. Cambridge Univ. Press, 2018)

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Respectful dialogues are finally being had across the country. Good, sincere people, with different opinions, but with similar needs. That’s the first step towards fairness for all.

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“In a tolerant, inclusive, peaceful America, we can write new scripts that ensure that all of us can live according to those things most dear to us, without fear of repercussions.” J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“[E]ven as we wish religious freedom to be respected as a fundamental freedom, so too we should respect the fundamental freedoms and rights of others.” Archbishop William E. Lori, The “Demands” of Faith, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground

“Resuscitating such old-school notions as common ground and fairness for all, the fifth Religious Freedom Annual Review, hosted by the Brigham Young University International Center for Law and Religion Studies in Provo, Utah, gathered legal scholars, LGBT advocates, journalists, and concerned Christian, Jewish, and Muslim leaders to grapple over court cases, questions about higher education and journalistic fairness, and — surprise! — common feelings of vulnerability.” Betsy Vandenberghe, Religious-Freedom and LGBT Advocates Offer Rare Lessons in Pluralism, National Review (July 2, 2018)