BYU conference explores what’s next for religious freedom

From Deseret News, Monday July 6 2015 6:40 pm MDT, updated July 7 12:45 am

PROVO — Utah lawmakers struck a compromise between anti-discrimination and religious freedom earlier this year, but left the sticky matter of public accommodations for another day. 

It is one of many issues that could arise in the near future as the tension between often competing rights continues to mount in Utah and across the country.

Cole Durham, director of the BYU International Center for Law and Religious Studies, said he would be surprised if the state didn’t address whether businesses can discriminate or refuse service based on sexual orientation, such as bakers, florists and photographers declining to work for same-sex weddings on religious grounds.

“Figuring out how to sort it out, how to draw sensitive lines, I think, is going to be important. I don’t know if people have an answer on how to do it,” he said.

That question was among those discussed Monday on the first day of a three-day conference the center is hosting to explore religious freedom issues under the title “Fairness for All.” Presentations and panel discussions addressed cultural, political and legal trends and the impact of the U.S. Supreme Court’s decision legalizing same-sex marriage.

The Utah Legislature earlier this year passed laws to protect LGBT people from discrimination in housing and employment and provide reasonable workplace accommodations for transgender individuals.

The legislation bans employers from disciplining or firing a person for expressing religious, moral and political beliefs, including convictions about marriage, family and sexuality, on and off the job. It exempts churches and their affiliates, such as religious schools, associations and societies.

But the lawmakers did not tackle public accommodations.

Durham said there is a sense that when people enter into commerce they should not discriminate, but the mere fact that they open a business doesn’t mean they have to give up their rights of conscience.

Utah Senate Majority Whip Stuart Adams, R-Layton, who spearheaded the religious liberties and anti-discrimination laws, said lawmakers might not be ready for that debate.

“I’m still tired from the last legislative session,” he said. “To say we’re going to take that on, I’m not there yet.”

If it does come up, Adams said, he wants to figure out how to address it in a way that protects everyone.

During his presentation, Matthew Richards, a lawyer with Salt Lake firm Kirton McConkie, listed religious freedom questions that have or will come up in the courts:

• Will parents be able to ensure religious values aren’t undermined in schools?

• Will people be able to maintain their religious identities in the workplace and be reasonably accommodated when work and religious duties conflict?

• Will churches and schools that affirm traditional marriage be able to keep their tax-exempt status?

• Will religious schools be able to maintain their values and still have the ability to participate in federal educational and research programs?

Americans enjoy a high degree of religious freedom that needs to be preserved, Richards said.

Durham said he sees accreditation for religious schools becoming a more immediate issue than pulling tax-exempt status for churches, though he said it’s hard to predict.

“It’s theoretically possible, but I think it’s going to be politically a long ways off,” he said, adding that he had said the Supreme Court decisionmaking same-sex marriage a fundamental right would be a long way off, too.

But University of Illinois law professor Robin Fretwell Wilson said when the solicitor general of the United States raises it, “you should pay attention.”

At oral arguments in the just-decided Supreme Court case on same-sex marriage, Solicitor General Donald Verrilli told the justices that the tax-exempt status for churches would be an issue for later.

In his speech at the conference, Bill Atkin, associate general counsel for The Church of Jesus Christ of Latter-day Saints, said secularism is the biggest challenge to religious freedom.

Some wrongly equate acting on religion with establishing religion, he said. They advocate the exclusion of religious beliefs and values from the public square and assert that religion impedes human progress, he said.

Religious freedom has been described as slowly and dangerously eroding, but Atkin said it’s not slow anymore.

“I think you’re going to see a rapid development in the erosion of religious freedoms,” he said.

Atkin said the Supreme Court decision legalizing same-sex marriage isn’t the end of the discussion, but the beginning.

Quin Monson, a BYU political science professor, said people should be wary of dramatic claims about attitudes toward religious freedom because there’s not much data on the subject.

“It hasn’t been a big issue until the last few years and especially the last few months,” he said.

Monson also said that it’s tempting to say threats to religious liberty come exclusively from the left but research shows that isn’t true.

“It’s not that the left hates religion and right loves religion. It’s more complicated than that,” he said.

PHOTO:  Sen. Stuart Adams, R-Layton, speaks during a session on “Working With State and Local Governments on Religious Freedom Issues” during the BYU law school conference on religious rreedom, “Fairness For All,” with Michael Purdy of LDS Church Public Affairs, left, and Robin Fretwell Wilson, professor at University of Illinois College of Law, July 6, 2015, in Provo.  By Tom Smart, Deseret News