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Houston's angry debate over gay rights can be avoided. Here's how.

LGBT Americans are looking for more protections, and so are religious conservatives. The challenge, legal experts say, is to find a way out of all-or-nothing politics. Utah might show one way.

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    Rita Palomarez, left, and Linda Rodriguez pray during an election watch party attended by opponents of the Houston Equal Rights Ordinance on Tuesday in Houston. The ordinance that would have established nondiscrimination protections for gay and transgender people in Houston did not pass.
    Brett Coomer/Houston Chronicle via AP
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When Houston voters rejected the city’s antidiscrimination ordinance by a resounding margin on Tuesday, America’s bitter and ongoing divisions over same-sex marriage and religious freedom were once again laid bare.

Despite this year’s dramatic US Supreme Court ruling that declared same-sex marriage a fundamental right, 31 states, most of them deeply red and conservative, do not include specific protections for lesbian, gay, bisexual, and transgender Americans. Meanwhile, many religious conservatives feel under siege and want their own protections to follow the teachings of their faith amid changing times.

The result has been a legal and cultural disjuncture in many parts of the country. It has produced political landscapes fraught with anger and frustration for supporters on both sides of the so-called culture war. One of the most critical challenges for the country right now, many legal experts say, is to find a way out of all-or-nothing politics and then organize the public sphere in a way so the two sides can live together.

Houston was seen as a bellwether for many of those seeking to expand LGBT protections throughout the rest of the country. So the repeal of its antidiscrimination ordinance – passed in May to protect 15 groups of people from discrimination, including older residents, military veterans, and the religiously affiliated – came as a blow to advocates. More than 60 percent of voters rejected the law.

Yet the stormy political process this year in Houston, the nation’s fourth largest city in the nation’s largest conservative state, can be instructive as such battles loom in other parts of the country, some observers say. And to show that the process does not have to end in bitterness, some are pointing to the “Utah compromise,” in which a conservative state earlier this year passed protections for LGBT people.

“There are ways to do this,” says Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta. “You get people of good faith on both sides to sit down and have a conversation, instead of everybody running to say anti this or anti that, and bifurcating the country again. People need to take other people’s concerns seriously, and not immediately label them as either anti-religion or anti-equality.”

“I think Houston is actually a really good example of what we’ve done wrong,” he adds. “Houston’s not an intolerant city. They elected a lesbian mayor three times. And I think it’s very unfortunate that they’re now being labeled this way.”

'Too quick to draw these lines'

For Mr. Goldfeder, who has worked on drafting Religious Freedom Restoration Act legislation in Georgia, mutual protections are necessary for both sides. “These aren’t binary categories,” he says. “Yet people are too quick to draw these lines – sometimes for media attention, sometimes for political gain – but it ends up hurting the country, I think. It ends up not showing us the way forward.”

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For many religious conservatives, however, the Supreme Court’s same-sex marriage ruling in June presented an ominous threat to living out their faith. In that light, Tuesday’s decisive result in Houston was for many an important victory for religious freedom.

"This is a national game changer," Jonathan Saenz, president of Texas Values and an opponent of the antidiscrimination ordinance, told the Associated Press. The repeal was "a massive victory for common sense, safety, and religious freedom."

But many supporters of the measure, which included President Obama, Hillary Clinton, and a coalition of Houston business leaders, are furious at the tactic used to defeat the measure.

Focusing on a simple and successful message, “No Men in Women’s Bathrooms,” a coalition of pastors and social conservatives seized on one aspect of the law – a broad and somewhat vague definition of who can be considered legally transgender – and made the issue about predatory heterosexual men who might dress as women and attack young girls in bathrooms.

Such scare tactics are often parts of American political campaigns. In this case, advocates say, the campaign distorted the meaning of being transgender.

In Houston, challenges from the start

Still, the process involving the ordinance was fraught from the very start. Last year, during the debates leading up to the passage of the antidiscrimination bill, Houston Mayor Annise Parker, who is openly gay, issued subpoenas for the sermons of five pastors who opposed the legislation.

Mayor Parker’s efforts caused a furor, sparking fears of a government witch hunt for people with “politically incorrect views.” She soon dropped the subpoenas.

Many conservatives still point to the chilling effects of the case of former Mozilla CEO Brendan Eich, who was forced to resign his position last year after it was revealed he contributed $1,000 to California’s successful Proposition 8 initiative in 2008. That measure, which enshrined marriage as only between a man and a woman, was declared unconstitutional by federal court in 2010.

Smarting from such incidents, religious conservatives seized the opportunity to attack the Houston ordinance for its relatively vague definitions of transgender people.

“If there’s a lesson from Houston, it’s that we will not have progress on gay rights if it is set up as just religious communities being in tension with gay and transgender people,” says Robin Fretwell Wilson, a law professor at the University of Illinois in Champaign and an expert on the legal issues surrounding religious liberty and same-sex marriage. “When that happens, when it goes down that way, I think it’s going to be really hard to have progress on things we can actually have progress on, constructively.”

The 'Utah compromise'

Professor Wilson and others cite as a constructive example the process by which Utah passed protections for LGBT people. She was deeply involved in the process, in which Mormon leaders backed new protections, while carving out similar protections for religious people opposed to same-sex marriage.

She faults the Houston ordinance for its broad definition of being transgender, and she notes that the Utah compromise used clinical definitions and required that a person must have been transitioning for six months before falling under the “bathroom” provisions.

“I think there would be a lot fewer clashes if there were more Utahs out there, where people just got down and worked things out, and came to mutual accommodations,” says William Eskridge, a professor at Yale Law School in New Haven, Conn., who has been a supporter of same-sex marriage for 25 years – one of the first constitutional scholars to do so.

“The important thing about the Utah statute, however – it never would have gotten anywhere if there had not been a lot of appreciation, particularly by the Mormons and conservative Republicans, that LGBT people are part of the community,” Professor Eskridge continues. As the country moves forward with same-sex marriage as a constitutional right, finding good manners and even permitting those with religious objections to find a space to opt out could be a good idea, he suggests.

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