I don’t have a lot of time this morning, but I did want to take some time to comment on Senator Ben McAdams’s proposal for a statewide anti-discrimination law modeled on the Salt Lake City ordinances passed in 2010.  The law would make it unlawful to discriminate in employment of housing on the basis of a person’s sexual orientation or gender identity.

Nationwide, we have various laws — such as Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Fair Housing Act and others — that prohibit discrimination based on certain criteria.  In Utah, we have the Utah Anti-Discrimination Act, which substantially duplicates Title VII and provides a state level remedy against discrimination in employment as well.  But though these laws protect Utah’s citizens from discrimination based on their race, color, national origin, gender, religion, and age, they do not prohibit discrimination in employment or housing based on a person’s sexual orientation or gender identity.

Although Senator McAdams’s bill is not yet available for review, we can surmise what it may look like based on the Salt Lake City ordinances themselves, as well as legislation proposed in previous sessions.  And if it reflects these prior proposals it will be designed carefully balance the rights of religious groups with the individual rights of same sex and transgendered persons.  The Salt Lake City ordinances are very cautious — they do not create a private right of action for affected persons, but do allow for injunctive relief and limited financial penalties against discriminating employers/housing providers.  We’ll have to see whether Senator McAdams’s bill goes a bit farther.

Aside from the broader argument that private property rights should entitle individuals to discriminate as they see fit, I hear two primary arguments against proposals like Senator McAdams’s, neither of which I believe have merit, and to which I respond briefly below.

Government Shouldn’t Legislate When There’s No Demonstrated Need

The first argument I hear advanced against non-discrimination ordinances is that there is no need for another separate statewide anti-discrimination law because there is no evidence that discrimination based on sexual orientation or gender identity is a problem.  Here’s a brief articulation of this argument, taken from the blog of a former member of the American Fork City Council about American Fork’s consideration of similar ordinances:

My Position: I cannot support both Non-Discrimination ordinances as written or amended. Nor will I vote in favor of a non-binding Resolution.

My Reasoning: (In no particular order. It is further non-exclusive. Please excuse repetitive arguments made in previous meetings).

No demonstrative need. (There has not been a documented case of discrimination in housing or employment in American Fork).Note: This fact was acknowledged in a November Work Meeting. Nothing has been submitted since. As a proponent of limited government; if there is no need, don’t legislate.

. . .

As an attorney, I get calls on a regular (though infrequent) basis from people who wonder what their rights are as a victim of discrimination or harassment based on their sexual orientation (or people calling on behalf of friends and family).  I tell them that, unless they live or work within the municipal boundaries of a city that has passed a non-discrimination ordinance (e.g., Salt Lake City or Ogden), they are essentially out of luck.  It is, in my opinion, disingenuous to claim there is no need for an anti-discrimination ordinance, based on the absence of documented reports of discrimination, when there is currently no legal remedy for this type of discrimination for the vast majority of Utahns.

But I think there is a more fundamental problem with this first argument.  And that is that Senator McAdams’s proposal is at least as much about creating a remedy as solving a problem.  There may be a widespread problem in Utah with discrimination based on sexual orientation and gender identity, or there may not be.  But there should be a remedy for people adversely affected when it happens.

Furthering the Gay Rights Agenda

The second argument I hear advanced against non-discrimination ordinances is that they are simply a tool for furthering the gay rights agenda, the ultimate goal of which is nationwide gay marriage.  Here’s a snippet from the blog of Representative Jeremy Peterson:

[A] survey shows overwhelming support for an anti-discriminatory law.  I think this reflects my perception.  Everyone thinks it’s the law already because that is how people already behave.

Also, to put further support behind this bill and others that are sure to follow, the survey asks if Utah is perceived as being fair and respectful of gay and transgendered folks.  What is interesting about this is that it does not ask if Utah is fair and respectful but asks if other people think it is perceived as such.  So the question is like me asking: What do you think your sister thinks about you? Not: What do you think of yourself.  Interesting way to ask the question.  Anyway, the majority say we don’t think others perceive us well.  Is this just more of the usual Utah-peculiar-people-self-conciousness?  I bet that this score would be high regardless of the subject matter.  You could ask: Do you think outsiders think Utahn’s are strange?  Of course we think they do.  Perhaps we should keep that in mind while interpreting these survey results.

I will let you review the rest of the survey.  But one thing is certain, expect to see more legislation to push forward the agenda of the gay and lesbian community.  Clearly, encouraged by these survey results, the LGBT community feels that now is the time to strike to push their own agenda forward.   For instance, today’s Salt Lake Tribune reports about an openly gay Democratic colleague of mine who is pushing for insurance benefits for cohabitating adults of any sexual orientation.  I am not especially excited about this particular measure.

Of course, the ultimate prize is to somehow conquer public opinion and legalize same-sex marriages at the Federal level. Like any experienced Cajun chef knows, you don’t throw a frog in a boiling pot.  Frogs are best cooked slowly and warmed to boiling degree by degree.  For the LGBT community, that is done one state and one statute at a time.

To the extent the gay and lesbian community has an agenda, it’s simply to obtain the equal treatment under the law that they believe they are entitled to.  Independent of whether this somehow leads to the statutory or constitutional legalization of same sex marriage, outlawing discrimination against same sex individuals in their employment and housing is a victory in and of itself; it’s more than just a component part of a “nefarious” frog-killing strategy.

Now, to be fair to Representative Peterson, it appears that despite his view of how Senator McAdams’s proposal fits into the broader context of the gay rights movement, he is leaning toward supporting a statewide anti-discrimination law because he believes it’s already consistent with the beliefs and practices of the majority of Utahns.  But the problem with his post is that it suggests that people who are opposed to same sex marriage should also be skeptical of a law that prevents and employer from firing someone because they are gay, or a landlord from evicting a gay tenant because he or she doesn’t want them in an apartment complex.  Of course everyone is going to have their own opinions on the propriety or constitutionality of laws prohibiting same sex marriage.  That debate can continue, but it shouldn’t be the focus of the debate over Senator McAdams’s proposal, and the strong feelings that exist regarding traditional marriage shouldn’t cloud our consideration of a bill that seems, to me, anyway, to be a no-brainer.