Utah gays and Mormon leaders cut a deal to protect the rights of both. Can they show religious conservatives a way forward?

Members of Mormons Building Bridges march during the Utah Gay Pride Parade, in Salt Lake City. (AP Photo/Rick Bowmer)

WASHINGTON — In 2010, Jonathan Rauch — a longtime advocate of same-sex marriage who is also part of the D.C. conservative policy world — issued a warning to the gay community.

After decades in which gay rights drew support from only a minority of the country, Rauch argued, there was now an emerging majority in favor of them. As the public increasingly moved into alignment with gay leaders on questions from same-sex marriage to military service, he said, the gay community should move away from the combative, confrontational style of its outsider years and adopt a more tolerant attitude toward opponents whose views were now in the minority.

“We need to allow some discrimination and relinquish the ‘zero tolerance’ mind-set,” Rauch wrote. “Paradoxical but true: We need to give our opponents the time and space they need to let us win.”

Rauch pointed to the then-recent example of a bakery in Indianapolis that had refused to bake rainbow cupcakes for a gay college group event — a decision backed by the city at that time — as instructive. It would be “positively dangerous,” Rauch wrote, for LGBT advocates to push for the bakery to lose its city-owned space.

A lot has changed in the five years that followed — in the gay community, in public opinion, and in the tactics that religious conservatives are taking to defend their now-minority views.

“A lot of what I wrote in 2010 is now out of date, unfortunately,” Rauch told Yahoo News. “It is no longer possible to get gay people to look on religious-liberty exemptions with anything other than extreme suspicion. That is because conservative legal groups and others have weaponized these laws. … They now have the specific purpose of opting out of gay weddings or gay pride or other gay-affirming events.”

Advocate Jonathan Rauch (http://jonathanrauch.com)

As demonstrated by the recent controversies in Indiana and Arkansas over attempts to put in place religious-freedom statutes, religious conservatives have a real problem on their hands. As they scramble to enact similar laws around the country, those laws are being seen as discriminatory, and so these groups have lost the support of the most conciliatory gay rights thought leaders, such as Rauch — not to mention the nation as a whole.

Conservatives are angry over the characterization of the Indiana law, in particular, as an anti-gay bill. Family Research Council president Tony Perkins referred to the coverage as “media malpractice,” pointing to the fact that Religious Freedom Restoration Act (RFRA) laws have never been used to discriminate against gays.

But the context of the new law made it appear targeted at gays, Rauch wrote in Time magazine during the uproar. First of all, he noted, there are no protections in Indiana law against discriminating against gays to begin with, so adding an RFRA law to an already lopsided legal environment looked like piling on. Second, the Christian leaders photographed with Indiana Gov. Mike Pence when he signed the bill are perceived to be hostile to legal protections for gays and lesbians. And third, the Indiana statute was written so that it looked like a direct response to a 2014 case in New Mexico where a same-sex couple brought suit against a photographer who refused to photograph their wedding. The language in the Indiana law ensured that a court could not deny a religious-freedom-exemption request on the grounds that the New Mexico Supreme Court did.

The conservatives argued repeatedly, however, that the differences between the Indiana law and the federal RFRA — promoted by Senate Democrats in 1993 and signed by former President Bill Clinton — were minor and that the basic thrust of all RFRA laws was the same.

“RFRA simply allows religious people to challenge government activities that encroach on their beliefs. They have to show that the government action substantially burdens a religious belief that they sincerely hold. And if they prove all that, it falls to the government to show that the challenged action is justified as the least restrictive means of furthering a compelling governmental interest,” Mollie Hemingway wrote in the Federalist. “Having a RFRA doesn’t mean that you know which side wins, it just sets the terms of the debate.”

Virginia law professor Douglas Laycock agreed with conservatives. “The main thing is this charge that it’s a license to discriminate. That’s the principal allegation, and it’s based on nothing in real experience,” he told Vox.

But Laycock also said that conservatives fueled concerns by making claims about what the law would do that were not accurate.

“You’ve got Republican legislators fueling the fire by saying when the bill was under consideration that this would protect Christians against gay rights. They either don’t know what they’re talking about, don’t know what the bills have actually done, or they’re just pandering to the base and promising things they can’t deliver,” Laycock said. “There’s blame to go around here, but neither side is talking much about what these bills have actually done in practice.”

Little of that mattered in the Indiana debate, which conservatives lost as Pence backtracked on the law in the face of overwhelming pressure from corporations and even from other states. That’s left religious conservatives facing an existential question: Where do they go from here?

Some think that a recent compromise reached in Utah and signed into law last month offers a way forward. The Utah Legislature worked with advocacy groups from the gay community and with the Mormon Church to reach a deal. Churches in the state, along with affiliated institutions such as Brigham Young University, would retain rights of conscience to hire and fire and employ based on their beliefs. But LGBT people were also given protected-class status in housing and employment, though small businesses with fewer than 10 employees and places of lodging with four or fewer units were exempted from these nondiscrimination clauses, according to one of the bill’s chief sponsors, state Sen. Stuart Adams, a conservative member of the Mormon Church.

On the issue of same-sex marriage, which has been legal in Utah since the end of 2013, the Legislature said that county clerks could opt out of performing a gay ceremony but must arrange for someone else to do it in their place so that a gay couple would not be discriminated against by the government. The Utah law also protects county clerks from being fired or punished by the government for opting out of performing a gay wedding, Adams said.

Michael Otterson, the chief spokesman for the LDS church, said that Mormon leaders were reacting to the pummeling that conservatives took over the debate on religious liberty in other states, where people representing other religions sought to put in place protections for themselves without extending any rights or concessions to gays. Indiana’s RFRA debate had not yet taken place, but similar situations had popped up in Arizona and New Mexico.

As Otterson put it, unilateral campaigns by religious conservatives to pass religious-liberty bills have prompted fierce backlashes that have left conservatives in an even worse position than before. Speaking about the Indiana law, Otterson said, “Whether the law is perfectly framed or not is not for me to say. But if you don’t get your messaging right to begin with, if you can’t argue from a basis of what is fair and legitimate, if you seem to come across as pushing only one side, then you’re going to invite the retaliation of the other side that is very well organized and very well funded.”

LGBT groups executed “a shock-and-awe campaign, and they overwhelmed the argument” in Indiana, Otterson said. “We avoided that in Utah by meeting with the LGBT community and trying to find a middle ground.”

The Utah law, said Rauch, was a “significant development.”

“The Mormons have broken with the rest of the conservative Christian world,” he said. “They’ve looked at the way the world is going and said, you’re not going to get religious liberty exemptions anymore unless they’re paired with protections in law for gay people.”

Rauch said that Utah was also crucial to buying time, ironically, for the religious conservative side of this debate.

“Without Utah, we were six months to a year to a situation where [the Human Rights Council, the leading gay rights advocacy group] could no longer do that because the resistance from the grassroots would be so intense because of all the [religious liberty] bills going forward,” Rauch said. “HRC, if it makes these deals, is going to have to fend off a lot of criticism from people who say, ‘Why are you doing this? Because in five to 10 years the other side just loses.’”

Robin Fretwell Wilson, a University of Illinois law professor who worked closely with the Utah lawmakers on their compromise, agreed that religious conservatives need to move quickly to secure protections like the ones reached in Utah.

“Perhaps most urgent for the religious right is the clarity the faith community receives in the Utah Compromise. Faith communities are struggling to sustain their received traditions about marriage in a world that recognizes same-sex marriage,” Wilson said. “Twenty-two states now have sexual orientation nondiscrimination laws. Twenty-eight do not, but in those 28 are municipalities that do provide these important protections to the LGBT community.

“If care is not taken to be clear, sexual orientation protections that are about commercial services like taxis and large apartment buildings inadvertently spill over to a religious sacrament like marriage. Utah — and all the voluntary same-sex marriage states — went to great lengths in their statutes to be exceedingly clear — for example, that religious counseling that occurred before same-sex marriage can occur after, exactly as it did before,” she wrote. “People of faith need to know how to proceed in a world that recognizes same-sex marriage, and the Utah Compromise charts the way forward.”

Rauch agreed that Utah could be the model: “We need to move quickly to find one or two other states to do this.”

That may prove difficult. There are few leaders on the religious conservative side who want to recognize LGBT people as a protected class under the law on the same level as ethnic and racial minorities. Crossing that threshold would be, for many on the right, ceding the argument over whether being gay is an inborn trait rather than a lifestyle choice. And for many religious leaders, that remains a bridge too far.

Michael Wear, however, is one religious conservative in favor of a compromise approach. Wear, who was a deputy in President Obama’s White House office of faith-based initiatives and directed faith outreach in Obama’s 2012 campaign, opposed the administration’s mandate that religious institutions provide contraception to employees. Wear said that a compromise is the right thing and is also the only pragmatic way forward.

“It might have seemed to Republicans that they were playing offense by pushing RFRA legislation, but in this climate it is more like sending an all-out blitz with no safety to prevent the Hail Mary,” Wear wrote in an email. “Incredulous assurances that Republicans are not interested in discrimination are not convincing to many Americans. Republicans need to prove they are both opposed to discrimination on the basis of sexual orientation and religious identity by advancing laws that protect both.”

Wear said that “the federal Employment Non-Discrimination Act, that received the support of Democrats in the Senate and included a strong religious exemption, would be a good start.”

Russell Moore, president of the Southern Baptist Ethics and Religious Liberty Commission, has been a leading voice among evangelicals for immigration reform and has established a reputation as something of a moderate on that issue and a few others. If any religious conservative were a seemingly prime candidate for some openness to a compromise approach, he would be it. But on the question of pairing religious-liberty measures with antidiscrimination laws in various states, Moore gave little ground.

“I have yet to see antidiscrimination measures that do not seek to restrict the speech and free exercise rights of those with moral objections to sexual expression outside of conjugal marriage,” Moore said in an email. “I think the attempts to thread the needle the way Indiana did is counter-productive and leaves religious liberty in the state in worse shape than before,” he said, referring to the changes that Indiana Republicans made to the law.

Talking with conservative radio talk show host Bill Bennett last week, Moore said that Indiana Gov. Mike Pence’s decision to add clarifications to the law was “an incoherent approach,” and he suggested that Pence looked “panicked.”

“[Pence] should have stood by the law, and he should have articulated and used this as a teaching opportunity to say to the people in Indiana and around the country, here’s why religious freedom matters, and it matters for everybody,” Moore said.

Republican politicians tend to follow the lead of religious conservative leaders on issues like these. And so far, there’s little evidence that any Republican presidential hopeful has an appetite to challenge his religious supporters to seek compromise with the gay rights movement.

Louisiana Gov. Bobby Jindal was asked on NBC’s “Meet the Press” this past Sunday whether he would sign a bill in his state’s Legislature that could deny employment benefits to employees based on their sexual orientation. Jindal was noncommittal but gave no indication that this provision would disturb him.

“I want to look at the bill. I’m always in favor of defending religious liberty,” he said.