The following is a response to a United Nations’ “Call for Input to a Thematic Report: Freedom of Religion or Belief (FoRB) and Sexual Orientation and Gender Identity (SOGI).” Victor Madrigal-Borloz, UN Independent Expert on protection against violence and discrimination based on SOGI, issued the call to inform his June 2023 report to the UN Human Rights Council on the right to FoRB in relation to SOGI.
Principal author of this response is W. Cole Durham, Jr., founding director of the International Center for Law and Religion Studies (ICLRS). Contributors include Alexander Dushku, shareholder at Kirton McConkie; Scott E. Isaacson, shareholder at Kirton McConkie and ICLRS senior fellow; Denise Posse Lindberg, Utah senior district judge (Third District Court, inactive) and ICLRS senior fellow; and David H. Moore, former UN Human Rights Committee member and current associate director of the ICLRS and Sterling and Eleanor Colton Endowed Chair for Law and Religion at Brigham Young University’s J. Reuben Clark Law School. This Response reflects the personal views of the author and contributors and not necessarily those of their employers or sponsoring institutions.
Tensions regarding competing claims for freedom of religion or belief (FoRB) and sexual orientation and gender identity (SOGI) rights have been central to “culture wars” for many years. Addressing this tension in the context of a thematic report for the United Nations calls for particular wisdom and balance. A holistic approach sensitive to the countervailing considerations is particularly vital in this area. In many parts of the world, resentment of LGBT+ agendas takes the form of general disenchantment with the international human rights movement. On the other hand, FoRB claims in certain quarters are read as masks for bigotry. Such polarized and polarizing positions are both excessive and surely mark a failure of discourse and a deeper failure to apprehend the reciprocal claims to human dignity involved.
Varied views of the issues involved extend along an extremely wide spectrum, but the diversity includes the kind of deep difference that constitutes the ultimate challenge to pluralism. Behind the deep differences, however, lies the fundamental reality that all the individuals who hold the varying views have dignity. In the words of Article 1 of the Universal Declaration of Human Rights (UDHR), “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Moreover, as stated in the preamble of the UDHR, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
Not surprisingly, opposed camps in clashes over FoRB and SOGI rights attempt to capture the concept of dignity and deploy it unilaterally in support of their different views. They view the struggle between FoRB and SOGI rights as a zero-sum game played on a slippery slope where each side seeks domination for its views and each fears that giving an inch will result in an unavoidable slide into submission to the other side. Fear is the underlying dynamic behind the tension—fear felt by both majorities and minorities.
The outcome of these polarized debates should not be assessed as a political calculus about which sides are likely to command ultimate political dominance due to shifting beliefs and changing demography. The reality is that deep differences, held by people with equal claims to dignity, persist, and the ultimate question of justice is not which group will prevail but how the dignity and rights of everyone can be optimized. Stable peace must be anchored in pluralism in which the fears of all are minimized by maximizing protections for all.
As recognized by the Punta del Este Declaration on Human Dignity for Everyone Everywhere, the concept of dignity has several dynamic features that point toward solutions. First, the “inherent dignity of all people . . . is the foundational principle and the key objective or goal of human rights, as well as an invaluable criterion for evaluating laws, policies, and government actions.” Second, inherent dignity has an inner momentum that can help “generate agreement and a common understanding.” Third, because the status of dignity is shared by everyone, it cannot be invoked without recognizing the reciprocal obligations it imposes on everyone. No single viewpoint in culture war disputes can make unilateral claims for dignity-based protection of its positions. Rather, the dynamic of dignity requires all to respect the dignity of others. Fourth, as a political ideal, dignity is a conception with an upward trajectory: it points toward higher conceptions of a common life. It energizes creative, productive, and stable pluralism. Dignity for all is a constant reminder that human rights are universal, inalienable, indivisible, interdependent and interrelated.
Historically, institutions of religious liberty have the world’s best track record in reconciling deep difference and achieving stable pluralism and peace. While counter-intuitive to those who assumed that social homogeneity was the foundation for peace, religious liberty has turned out to be one of modernity’s most important axioms for good and just governance. The key to peace is not coercing compliance with a particular religion, ideology, or world view, but securing the right to be protected against illegitimate coercion from those holding divergent views. Protection of the right to FoRB helps quell worries that one’s dignity and core concerns will be violated. This key, with its insistence on protecting pluralism, needs to be remembered when dealing with today’s prime examples of deep difference. Doing so simultaneously respects both the underlying insights drawn from the lessons of implementing FoRB and the demands of dignity.
Of course, religious liberty rights are not unlimited. As amply recognized under international law, there are carefully described conditions under which religious claims must give way to other fundamental rights and paramount concerns. Limitations on FoRB must comply with the rule of law and be necessary and proportionate to legitimate interests in public health, safety, order, morals, and the fundamental rights of others. See, e.g., International Covenant on Civil and Political Rights art. 18(3). The challenge, of course, is determining precisely when these narrow limitations come into play, particularly where FoRB and SOGI rights appear to collide.
As a general rule, FoRB does not justify physical violence, except perhaps in defensive settings. More generally, FoRB claims need to be carefully weighed when other fundamental rights are at stake. But the balancing must be sensitive, given the fundamentality of FoRB rights themselves. Moreover, what can be said of violence cannot automatically be extended to the notion of discrimination. There is a profound difference between invidious discrimination and legitimate differentiation. Having “discriminating taste,” for example, is generally viewed as a positive trait. In fact, many fundamental rights, including FoRB, assure individuals the right to make differentiations in their religious beliefs, the opinions they express, those with whom they choose to associate, the structuring of their private sphere, the selection of property to acquire, and so on, through a broad panorama of life choices. Every piece of legislation and every judicial decision makes distinctions. The question is not whether differentiations are made but whether the differentiations are reasonable and justifiable.
Moreover, discrimination against a person on the basis of religion is as much a violation of dignity and human rights as SOGI discrimination. History and current experience are replete with examples of persecution on the basis of both religious and SOGI characteristics. Neither of these species of discrimination is entitled to automatic priority protection vis-à-vis the other.
Practical experience in finding livable solutions to FoRB/SOGI tensions presupposes that those with different views come together to discuss actual needs with civility and good faith. The reality that such stores of good faith are available is attested by discussions occurring in many forums, such as the finding at the beginning of the recently enacted Respect for Marriage Act in the United States: “Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”
To identify workable and livable solutions, it is helpful to distinguish three broad types of social spaces where accommodations must be worked out. First, in genuinely public spaces, LGBT+ nondiscrimination norms should generally prevail, subject to some narrow exceptions predicated on particularly salient needs. Second, in private and sacred spaces, which are zones of family, faith, and individual-identity formation, personal and religious autonomy should generally prevail. Protections in this area need to extend not only to individual autonomy but also to the autonomy of religious institutions, including religious organizations per se as well as religiously affiliated educational, healthcare, and other charitable institutions. Third, in hybrid spaces, where public interests intersect with private or sacred interests, both nondiscrimination norms and autonomy norms should have legitimate but not absolute sway. See Alexander Dushku, The Case for Creative Pluralism in Adoption and Foster Care, 131 Yale L.J.F. 261–62 (2021). The third domain is where the most difficult judgments must be made, but by paying attention to concrete needs as opposed to ideological positions, creative pluralism can find workable solutions.
The so-called “Utah Compromise” exemplified this approach. Robin Fretwell Wilson’s table summarizing “Utah’s Pivotal Bargain” shows that Utah’s 2015 legislation provided somewhat broader protections for LGBT+ groups than even many of the “blue” (liberal) states, but at the same time it afforded broad protection to FoRB rights.[1] The Act [2] protected many of the most central concerns for LGBT+ groups such as protection from employment and housing discrimination and assurance of workplace accommodations for transgender individuals. At the same time it assured that neither clergy nor religious organizations would be required to offer wedding contrary to their beliefs, either themselves or in affiliated buildings. LGBT+ and religious individuals were also protected from job discrimination for expressive conduct outside the workplace (e.g., teaching in a religious context or participating in a pride parade). The legislation solved a number of practical problems. For example, it provides that the state is obligated to make access to same-sex marriage available. However, where particular individuals object to performing or licensing such marriages, the state can respect their conscientious positions, so long as it finds alternative personnel who are willing to provide the relevant services.
The Utah Compromise was criticized by those holding opposing beliefs at both conservative and liberal ends of the political spectrum. However, it has been remarkably effective at reducing polarization on FoRB/SOGI issues. While often described as a compromise, a prominent Yale LGBT+ leader has suggested that the law should be referred to as Utah’s “Statute of Principles,” since it was principled on both sides. See William Eskridge, Jr., Mediating LGBTQ Equality and Religious Liberty Clashes: The Role of Statutory Principles, Eighth Annual Joseph Smith Lecture at the University of Virginia (22 Sept. 2022). Significantly, little if any litigation has challenged the Utah legislation, and in fact, subsequent survey data shows that by 2019, Utah’s population was tied for second place in the nation regarding highest state-level support for LGBT+ nondiscrimination protections. See Daniel Greenberg et al., Americans Show Broad Support for LGBT Nondiscrimination Protections, PRRI (12 Mar. 2019). What this demonstrates is that even when legislation does not address all contested issues, polarization levels can be substantially reduced by addressing concrete concerns.
In the United States, comprehensive antidiscrimination legislation is stalled. LGBT+ advocacy groups have pulled back from support for the Employment Nondiscrimination Act (ENDA), which sought to extend Title VII of the Civil Rights Act to prohibit SOGI discrimination while retaining Title VII’s exemptions for religious organizations. As the political climate has shifted, LGBT+ advocates have switched to supporting the sweeping Equality Act, which does not provide religious liberty exemptions. This legislation was passed by the House of Representatives but is unlikely to win Senate concurrence. The intermediate Fairness for All Act, modeled in several respects on the Utah Compromise, seeks to strike a balance between FoRB and SOGI concerns. (For comprehensive analysis, see Chris Stewart & Gene Schaerr, Why Conservative Religious Organizations and Believers Should Support the Fairness for All Act, 46 Notre Dame J. Legis.134 (2019)).
A “fairness for all” approach has a variety of advantages. It takes the underlying dignity concerns seriously, striving to strike a wise social balance by optimizing dignity for all, rather than assuming that current (or emerging) political might makes right. It is better at acknowledging that deep differences are here to stay and stable peace and depolarization is best achieved by taking rival concerns seriously. It does not give either FoRB or SOGI claims absolute sway but helps determine which concerns deserve the greatest deference in which contexts. It avoids disrupting traditional social structures such as tax-exempt status, accreditation of religious institutions, structuring of identity-forming institutions, diversity in provision of adoption and foster care, and countless other social institutions, while providing vital protections for SOGI rights.
As a matter of general strategy in the quest for solutions, legislative institutions are better positioned than courts to gather broad input and to reach workable compromises. Courts are typically forced to make either/or decisions, and to the extent they are interpreting constitutional texts, their decisions may freeze solutions in constitutional cement, making social adjustments difficult if not impossible. The result may be intensified polarization and controversy with little hope of resolution. Legislation is important not only because of the solutions it finds but also because of its potential for building consensus both in the legislative process and in society at large. Legislation can also help defuse polarization that leads to radicalization and resulting breaches of social peace. The point here is not to discount the importance of judicial processes but to emphasize certain inherent advantages of legislation.
Retaining the flexibility to accommodate religious differences by making reasonable exceptions to general legislation is vital. A key problem with the Equality Act proposed in the United States is that it fails to make adequate accommodations for sincerely held good-faith beliefs. Failure to make such reasonable accommodations gives undue weight to the political clout of some to the detriment of the dignity claims of others. Allowing appropriate exemptions reduces fears that such overreaching will occur. Worries sometimes cited that FoRB claims are a mask for bigotry are largely ungrounded but can be unmasked where such unsavory motivations are verified.
Leading jurisdictions have tended to favor the reasonable accommodation approach, which recognizes the importance of sensitive exemptions to general legislation. Even when reaching essentially pro–SOGI results, the U.S. Supreme Court has consistently emphasized the importance of respecting religious rights. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 672 (2015) (emphasizing that religious beliefs are honorable and deserve respect, while sustaining same-sex marriage); Bostock v. Clayton County, 140 S. Ct. 1731, 1753–54 (2020) (reaffirming religious rights in a landmark case extending SOGI protections). Similarly, the Inter-American Court of Human Rights, in a case clearly protecting lesbian rights, went out of its way to stress that freedom of conscience and religion “constitutes a transcendental element in the protection of the convictions of believers and in their way of life” and that “religious communities must be free from any arbitrary interference by the State in areas related to religious beliefs and the organizational life of the community.” Pavez Pavez v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (Ser. C) No. 449, ¶¶ 75, 84, 119 (4 Feb. 2022).
A balanced analysis of how best to address FoRB and SOGI claims should encourage a flexible approach that seeks to optimize dignity protections for all.
[1] See also chart summarizing FoRB and SOGI protections in individual states of the United States in 1 William W. Bassett, W. Cole Durham, Jr., Mark A. Goldfeder & Robert T. Smith, Religious Organizations and the Law § 6.25 (database updated Dec. 2022), Westlaw RELORGS.
[2] Comprising S.B. 296 and S.B. 297, 2015 Gen. Sess. (Utah 2015).