LGBT rights and judicial overreach: How GOP lawmaker sees landmark ruling
For the first time, a federal appeals court ruled this week that civil rights law applies to LGBT Americans. A Utah senator calls the decision judicial overreach – at the same time that he's traveling nationwide to expand those rights.
| NEW YORK
When a federal court in Chicago expanded the definition of “sex discrimination” this week, ruling for the first time that federal civil rights protections extended to lesbian, gay, bisexual, and transgender Americans in the workplace, conservatives like state Sen. J. Stuart Adams of Utah felt this was yet another example of judicial overreach.
The Republican majority whip in the Utah Senate, Senator Adams maintains a traditional “originalist” position: words in a text should mean what they were first intended to mean. And it seems clear to him that when passing the landmark 1964 Civil Rights Act, which protects individuals from discrimination on the basis of race, color, national origin, sex, and religion, Congress did not intend to include sexual orientation.
Yet the Utah senator, a conservative Christian, has also become one of the most vocal Republican advocates for expanding civil rights protections for LGBT citizens. For more than a year, he has been traveling across the country trying to convince other lawmakers to explore a “Fairness for All” concept, which encourages LGBT advocates, lawmakers, and other groups to sit down together with a spirit of mutual concern and respect, rooted in a desire to transcend the nation’s bitter divisions.
“I don’t necessarily want to criticize this ruling,” says Adams, noting that he respects the judiciary’s right and obligation to interpret the law. “But it’s important to find a statutory solution before those rulings are made. In a pluralistic society, where there are so many different views, and with same-sex marriage and religious conscience both needing to be protected, there’s a better way to do it, in my mind.
“If you're able to legislate rather than litigate, I think you get to a better place when you need the ability to find common ground,” he continues, describing his own unlikely journey from a religious conservative resisting any LGBT “special rights” to an advocate urging others to expand them.
His efforts, however, stand within the crosshairs of some of the most bitter political debates still raging in the country. Conflicting views over judicial interpretation – evident in the Senate’s rancorous confirmation of Judge Neil Gorsuch to the Supreme Court Friday, as well as ongoing battles over “bathroom bills” – continue to widen divisions in a country deeply polarized on a number of partisan issues.
Indeed, when the Supreme Court declared marriage to be a fundamental right for same-sex couples in 2015, it left unresolved important questions about discrimination and the scope of the nation’s civil rights laws.
Only 20 states and the District of Columbia currently ban discrimination based on sexual orientation or gender identity. Three other states offer partial civil rights protections.
For many liberals, the ruling expanding the definition of discrimination on the basis of sex, handed down by the 7th Circuit in Chicago this week, was historic.
“In many cities and states across the country, lesbian and gay workers are being fired because of who they love,” said Greg Nevins, director of the employment fairness program for the Lambda Legal, the advocacy group representing the plaintiff in the court’s decision, in a statement. “This decision is a game-changer for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: It is against the law to discriminate on the basis of sexual orientation.”
Such federal rulings are essential for the cause of minorities, many liberals say. Like those that struck down segregation and expanded civil rights protections in the 1950s and 1960s, judicial action is often necessary in the face of legislative inaction or outright indifference to unequal treatment and discrimination in parts of the country. This was the case, many believe, in the Supreme Court ruling that legalized same-sex marriage.
As a purely legal decision, scholars note that the 7th Circuit’s decision represented a crystal-clear clash of opposing ideas of how to interpret a legal text, with opinions penned by some of the most astute legal minds in the country.
“What’s so remarkable about this decision is that we saw a triadic debate of gargantuan proportions,” says William Eskridge, a professor at Yale Law School. The majority decision was written by Justice Diane Wood, a Clinton nominee, and joined by two Reagan appointees, Justices Frank Easterbrook and Richard Posner – all three considered among the nation’s leading judges.
“It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’” wrote Justice Wood in her majority decision. “The effort to do so has led to confusing and contradictory results.”
In her dissent, Justice Diane Sykes, on President’s Trump’s short list for a potential Supreme Court nominee, presented the classic defense of judicial restraint in a case she described as “momentous.”
“The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion,” Judge Sykes wrote. This method, however, is not “faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges.”
Utah Senator Adams's journey
But though he shares Sykes’s point of view in many ways, Adams has undergone a transformative journey precipitated by the kinds of court decisions that still make him uneasy.
It was a journey that many other religious conservatives traveled in 2015, when Utah, reddest of the red and one of the most religiously fervent states in the union, became the only Republican-led state among the 23 to provide explicit legal protections for LGBT residents.
It began when a federal judge threw out the state’s constitutional ban on same-sex marriage, forcing the conservative state to allow LGBT people to marry.
“I stood locked arms with my colleagues as we passed that constitutional amendment,” Adams recalls. “The thought process in my mind was that, things that I held very dear to me – family, sexuality, my religious beliefs – these were something that were, in my mind, some of the more significant things in my life, if not the most significant things.”
“But I had somebody challenging that, so I thought it was best to restrict other people’s ability to have rights in order to protect my own,” he continues. “I actually thought I was protecting my own rights.”
He and others sat down with members of the LGBT community in Utah. He listened to stories they shared of feeling like outcasts and second-class citizens. It changed the tenor of the discussion, he says, and he, too, mostly felt listened to and respected when expressing his own concerns about religious liberty.
“Then, after going through this process, and I kind of thought about it, the light went on,” he says. “I am a Christian and I believe in the New Testament and loving your neighbor and ... trying to be compassionate and tolerant and follow Christian principles.”
The “Fairness for All” concept, he says, offered a way to extend rights to the LGBT community while also extending more protections for the religious community.
“Now I’m living my religion,” he says. “I’m being more compassionate and tolerant, and I’m getting respect back from the other side.”
Utah now includes protections for its LGBT citizens in its housing and employment civil rights laws. It also added certain exemptions to religious institutions and even to government clerks who do not wish to participate in same-sex marriages, with the condition that every government office provide immediate service for same-sex couples. The law did not, however, cover the thorny issue of public accommodations, such as wedding vendors.
'My religious beliefs are not compromisable'
The legislation was hailed as the “Utah Compromise,” but Adams doesn’t like the term. “My religious beliefs are not compromisable,” he says, “and we didn’t force anyone to change any doctrine or beliefs – we protected religious organizations to maintain those doctrines and beliefs.” And he still believes that marriage should be between a man and a woman.
Even scholars like Professor Eskridge, who advocated for same-sex marriage for 25 years, applauds the efforts of legislators like Adams.
“The Utah process was so good because it did what you should be doing: getting business groups and LGBT groups and religious groups together to craft antidiscrimination laws with appropriate religious exemptions and allowances,” he says. “And that should indeed best be done legislatively.”
Adams continues to work with scholars like Robin Fretwell Wilson, a law professor at the University of Illinois and director of its Family Law and Policy Program. Together they are working with other state legislators, trying to forge a path forward.
“If you go just by court decisions, or attempt to resolve those issues without changing the relative protections for all people who live in that community,” she says, “the incentive for state legislators to stick their necks out and try to find a way for everybody to live together peacefully has gone down dramatically.”