The Equality Act and Religious Freedom Exemptions

This afternoon the Church of Jesus Christ of Latter-day Saints issued a statement opposing the proposed federal “Equality Act.”

BACKGROUND ON THE EQUALITY ACT

I read the entire Equality Act this afternoon.  The Equality Act’s principal purpose is to amend the Civil Rights Act of 1964, and other federal civil rights provisions, to clarify that sex discrimination includes sexual orientation/gender identity discrimination.  This effort is timely.  Whether “discrimination on the basis of failure to conform with gender stereotypes” constitutes “sex discrimination”  is a question courts have wrestled with for decades.  The U.S. Supreme Court last month agreed to decide it.  Like legislatures often do, Congress is trying to solve any ambiguity surrounding the interpretation with explicit clarification.

While on the subject of sex-discrimination-related-problems, the Equality Act also:

  • expands protections against pregnancy discrimination;
  • clarifies that “retail establishments” and “places of public accommodation” include online shops, transportation providers, and other professional services; and
  • forbids application of the federal Religious Freedom Restoration Act as a defense to sex / LGBTQ+ discrimination.

REACTION TO THE CHURCH’S STATEMENT

With that background, I have four major disputes with this afternoon’s statement.

First, the statement’s timing is odd.  The Church appears to have issued it today because the Equality Act bill cleared House committees last Friday and is likely to now proceed to a vote before the full House of Representatives.  However, the Bill will likely die in the Republican-controlled Senate. I’m not sure why the Church thought it was wise to expend precious political capitol weighing in at all, much less right now before a Democratic-controlled House.

Second, the statement unnecessarily qualifies LGBT rights The Church’s statement supports “fair” and “appropriate” access to public accommodations, “reasonable” non-discrimination measures, and “basic” civil rights for the LGBT community.  This minimizing language makes it clear the Church views the LGBT community as somehow “less-than” even in secular American life.  As evidence, contrast the statement’s qualifiers with the Church’s descriptions on religious freedom, which label religious rights (including in public accommodations) as “fundamental,” “essential,” “inviolate,” and “universal.”  Notably, while the Church has acknowledged that limited restrictions on religious freedom are appropriate in order to protect “life, property, health, or safety” the Church ranks efforts to combat discrimination in a different class, dubbing them “as an excuse for abridging religious freedom.”

If the Church is aiming for a “balanced” and “fairness for all” resolution to conflict between the LGBT community and conservative religious practice, it should engage in respectful dialogue by assigning the civil rights interests at stake equivalent rhetorical weight.

Third, the statement kindles the very conflict it condemns.  The Church’s statement frames the Equality Act as part of an “ongoing conflict between religious liberty and LGBT rights” that is “poisoning,” “eroding,” “devastating,” and “destroying” religious freedom while “polarizing” and “sharpening” divisions in society.  There is no need for that verbiage.  If the Church’s goal is to support a “balanced,” “fairness for all,” “compromise” approach, it should lead by proposing “balanced,” “fairness for all,” “compromise” solutions without invective.

The Church knows how to do this: it’s exactly what the Church applauded and explained with the March 2015 anti-discrimination legislation in Utah.  (That legislation is not perfect, but it does reflect a good-faith compromise focused on exempting religious-mission institutions and small businesses from anti-discrimination provisions that were being issued throughout the state.)

Fourth, the statement misstates what the Equality Act does. 

The Equality Act largely represents a statutory formalization and clarification of existing law.  The majority of courts agree that civil rights legislation banning sex discrimination applies to various forms of LGBT discrimination.  Both the Constitution and most federal civil rights laws already contain explicit religious exemptions to their provisions — and these religious exemptions have been endorsed and robustly applied by the U.S. Supreme Court — starting in an 1987 employment case won by the Church!  The U.S. Department of Education has never denied a religious exemption, including exemptions claimed by BYU to discriminate in admissions, housing, hiring, student discipline, etc. on the basis of sex, gender, dress code, chastity, marital status, pregnancy, birth control use, and other actions not in accordance with the BYU Honor Code and teachings of the Church.

The Equality Act affects none of that.  The Church’s statement that “the Equality Act provides no protections for religious freedom” is a mischaracterization of what the Equality Act does.  The Equality Act doesn’t need to provide express protections for religious freedom because those protections already exist within the exact same sections of the civil rights laws the Equality Act proposes to amend.

For simplicity sake, I roughly annotated the Church’s primary paragraph of concerns with the core legal provisions that currently protect them.

IMG-3496

Separately, the Church’s statement condemns the Equality Act’s “Religious Freedom Restoration Act” carve-out, characterizing it as a “repeal” of “long-standing religious rights.”  This isn’t accurate.  RFRA is a religious bonus that has existed for only 25 years.  RFRA is not a U.S. Constitutional requirement.  The debates surrounding RFRA’s passage did not seriously contemplate its application to suits between private parties as a way to override the anti-discrimination provisions of the Civil Rights Act.  Moreover, the majority of scholars to have considered the question agree that attempts to apply RFRA to discrimination cases will fail, because legislation to combat invidious discrimination constitutes a compelling governmental interest sufficient to override RFRA’s religious protections.

(The complicated interplay of RFRA and the First Amendment’s religion clauses and how their interpretations may change before a re-energized conservative Supreme Court are outside the scope of this post.  But for a primer, here’s something I wrote on the Indiana RFRA debate in 2015.)

In short, the Equality Act provides an easier path for LGBT individuals to prevail in their discrimination cases, but it’s not changing the status quo with respect to religious institutions much at all.  Of course, the Church’s opposition may be grounded in the anticipation that the status quo is about to change.  The Church may anticipate that a re-energized conservative Supreme Court is poised to curtail LGBT civil rights progress, and as such the Equality Act would operate to block a robust victory for religion over the LGBT community.  If that’s the calculus, however, that doesn’t feel like a sincere “compromise” position.

A CONSTRUCTIVE PROPOSAL

I appreciate the Church’s concerns that protections for LGBT individuals may impinge upon their religious liberty.  I think those concerns are overstated, but I respect the Church’s First Amendment right to advocate for that position.  If it’s going to weigh in at all, I believe the Church could have issued a better-crafted statement to achieve its “balanced,” “compromising” goals.

I suggest that next time this topic arises, the Church may want to consider issuing something like the following statement instead:

“Just as the Church of Jesus Christ of Latter-day Saints modeled in 2015 before the Utah Legislature, the Church supports federal legislation which extends full civil rights to LGBT individuals, including by protecting them from discrimination in housing, employment, and public accommodations.  However, the Church cannot support the Equality Act as drafted because in the process of clarifying LGBT rights, it may have muddied long-standing protections for religious exercise contained in those same civil rights statutes.  The Church has proposed limited amendments to the Equality Act which would clarify that the exemptions for small businesses and religious institutions present throughout the federal civil rights code apply with equal force to the new LGBT provisions.  The Church urges concerned individuals to support these compromise amendments by contacting their representatives.”

 

 

 

Comments

  1. Thank you for doing this work.

  2. Jason K. says:

    I am so grateful to count a First-Amendment lawyer among my friends. Thanks for this analysis.

  3. Angela C says:

    Brava! Now where’s that Muller Report debrief?

  4. Carolyn says:

    It’s a lot harder to analyze 430 pages than 5!

  5. I suspect the statement was meant more as a dog whistle than as a serious legal statement.

  6. Even as a PR move this doesn’t seem to promise much of a return for the Church’s interests. Legally it doesn’t seem that useful since the Constitution has guaranteed Religious freedom for over two hundred years and various laws and rulings (Amos) have clearly supported the right of religious organizations to maintain their own discriminatory rules within their congregations and employment in their organizations. So, what is to be gained here?

  7. Good work as always, Carolyn. I think your strongest point is the odd timing with an awkward statement. There doesn’t seem to be a strategy or plan. (I say that knowing there is a contingent who believe everything the Church does is right and correct in the moment. Because The Church.)

    On the other hand, I don’t see any reason the Church should say something “reasonable” or what a good lawyer would say, or even pay any attention to lawyers. In my opinion, the Church should stick with religious principles or go all out political (meaning all about effect, impact). Lawyering comes a distant third. The problem is that from your analysis the Church has failed on all three.

  8. The Church of Jesus Christ of Latter-day Saints wants “fair and balanced” solutions of the Fox News variety.

  9. Roger Hansen says:

    The Church spends way too much on legal consultants, and is being poorly served by its PR department and consultants. Where is their Washington lobbyist in all this? The law firm seems to be running up billable hours. It’s time for full financial disclosure, and for Prez Oaks to step aside on the freedom of religion issue.

  10. With all due respect, the protections provided by RFRA are “longstanding.” RFRA was enacted in order to restore the legal regime to its state prior to Employment Division v. Smith. The protections provided under the First Amendment prior to Smith were far more settled than the application of the Civil Rights act to sexual orientation today.

  11. Carolyn says:

    That’s an overstatement. The protections provided under the First Amendment’s Free Exercise Claude prior to Smith almost exclusively concerned (a) unemployment benefits and (b) conscientious objectors. Everyone else — tax exemptions, social security exemptions, right to not salute the flag exemptions, Sunday-closing exemptions — resoundingly lost. Whole papers have been written on how “strict scrutiny” in the free exercise clause in 1990 didn’t mean anything anywhere near what “strict scrutiny” in free speech and racial classifications did.

  12. Carolyn says:

    Also: my broader point is that RFRA as applied to LGBT discrimination hasn’t really been tested yet. We’re getting there, and academia is debating it, and it’s sat at the center of some state RFRA debates, but the courts have largely avoided it thus far. So to say a RFRA provision that almost no court has applied in the LGBT context is long-standing legal authority in that context is also an overstatement.

  13. Michael H. says:

    You’re right: the timing here is very strange. A good lobbyist — one who’s not in it only to lead the client along and collect another paycheck — would have pointed out the futility of the Equality Act (save as a messaging tool) with a Republican Senate, and would have advocated for silence or entering the field from a constructive, consensus-building direction, seeking to get involved early, open dialogue with the (liberal/Democratic) framers of the bill, and thus influence the final product through fostering good will.

    Instead, the Church’s official statement strikes me as more akin in tone to the periodic indignant Facebook posts about some off-the-wall bill that some random state legislator merely introduced last week.

  14. Carolyn,

    Perhaps you are just much quicker to discount the importance of the language of both RFRA and cases like Wisconsin v Yoder. Prior to Smith, religious practitioners could find comfort in the following language: “The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” The fact that such language was limited in its application is certainly relevant, but I don’t think that much affects how scholars and the public in general understood the Free Exercise Clause prior to Smith.

    I guess I’m uncomfortable with the notion that you can’t claim that rights *truly* existed unless they were tested in court. Prior to Smith, people understood their rights as outlined in cases like Verner and Yoder. RFRA was intended to restore the pre-Smith understanding. The Equality Act substantially alters that understanding as applied to certain situations. I’m as interested as the next guy in whether those understandings would play out in litigation, but I don’t think untested legal theories undermine the Church’s statement.

  15. David Day says:

    Thanks Carolyn. Related question on RFRA. I noted that in the Hobby Lobby case SCOTUS reached a result under the RFRA and therefore did not get to the First Amendment claims. I guess I’m skeptical that there’s going to be a large swath of cases where a First Amendment defense will be insufficient but a RFRA defense would win. In other words, it seems like the fact that RFRA is being removed as a defense in the Equality Act is unlikely to make much of a practical difference on the ground. Is that your sense as well?

  16. Carolyn says:

    DSC: I think the best evidence of the Church’s understanding is Amos itself. To my knowledge they didn’t brief that as a Free Exercise case. They briefed it as an eligible for a Title VII exemption, and that exemption doesn’t violate the Establishment Clause case. If the universal legal and public understanding of the Free Exercise Clause in 1987 was that it overrode the Civil Rights Act of it’s own accord, you’d think that position would have been raised?

    (SCOTUS probably would have decided on constitutional avoidance grounds anyway, but still – it would have been raised.)

    (If it was raised and I’m wrong on this, feel free to correct me. I haven’t read the Amos briefs in a few years.)

  17. Carolyn says:

    David: it’s a bit more nuanced than that, I think. RFRA is generally seen as stronger than the First Amendment. That plus constitutional avoidance means courts decide on RFRA grounds alone where possible.

    So if a RFRA defense is removed, that will elevate the First Amendment analysis. The First Amendment is likely to be marginally less successful than a RFRA claim because there are options to argue that lesser scrutiny (rational basis) applies.

    But at the end of the day, what’s most likely is a conservative Supreme Court will overrule or abrogate or narrow Smith, apply First Amendment strict scrutiny to a LGBT vs. conservative Christian case anyway, and reach the same result as they would have under RFRA if it applied.

  18. The Equality Act is based upon several obvious fallacies and will open up many new avenues for litigation. Just ask the Masterpiece Bake Shop about what sham discrimination suits can do to an individual business.
    If truth in advertising was applied to this bill, it should be named the (Not Very) Civil Rights Lawyers Full Employment Act.

  19. el oso: what obvious fallacies?

  20. One of the worst is the assumption that poor health and lower life expectancy for transsexuals is due to discrimination. No mention of unnatural hormone treatments or mutilating surgery having a negative impact.

  21. Re RFRA, I think many (maybe most?) believed that strict scrutiny was the framework generally before Smith, though Carolyn’s point that in practice it was easier to find compelling interests in free exercise cases than in other cases is well taken.

    But the point I come back to is that even if the pre-Smith projections were mostly illusory, Smith was the result of conservative culture war anxiety about minority religions enjoying religious freedom exemptions to drug laws. At the time, conservatives didn’t imagine that their right to discriminate on the basis of sexual orientation would ever be challenged, so the idea that they would need the strict scrutiny framework to claim religious freedom protection for that right just didn’t even occur to them. But Removing that protection for minority religions removed it for everyone. This is much more a case of conservatives reaping what they sowed in the 1980s and 90s than of lgbt rights encroaching on religious rights.

    The reality is that many states already explicitly recognize sexual orientation as a prohibited basis of discrimination, and many of them already have RFRA-type state statutory or conditional rules, and I could be wrong, but I think we’ll see an emerging consensus that ending sexual orientation discrimination is a compelling state interest such that I don’t think keeping RFRA protection would even do much, in the long run, other than bear a symbolic it rhetorical value.

    Imo, lgbt rights are here to stay, and only going to get stronger. If our goal is to preserve religous freedom, the more we frame it as in irreconcilable conflict with lgbt non-discrimination, the more we’ll hurt ourselves in the long run. The smarter move is to affirm lgbt rights while affirming religious freedom alongside them.

  22. I don’t think this is reactive to the Equality Act per se, more that it’s reactive to the negative reaction of members to the reversal of the Pox, taking the first indirect opportunity to strongly state their political and theological stand. Nothing has changed, they are saying, even though you may worried after the reversal

  23. oso, is that even necessary? Can’t we recognize that discrimination on the basis of gender identity (regardless of hormone or surgical treatments) is itself wrong without specific evidence of lower life expectancy? I guarantee that life expectancy is not changing anybody’s mind on this issue.

  24. Carolyn,

    I don’t think a failure to bring up the Free Exercise Clause in Amos (if that is in fact the case; I haven’t read the briefs) means much at all for the reasons you pointed out to David. The statutory defense (Section 702) would have been stronger, and if it were unconstitutional on Establishment grounds, it is unlikely any court would paradoxically save it on Free Exercise grounds. So if the statute clearly does what the Constitution maybe does, but with clearer language, it seems like a waste of ink and paper to brief the issue.

  25. David Day says:

    Jared, you are completely right.

    Carolyn, you expressed what I was trying to say but did it better. I understand and agree that the 1A would be marginally less successful than RFRA, but practically I also agree that its far more likely that a conservative court does as you predict, which results in no practical difference.

    EmJen, I really really hope you are wrong.

  26. GEOFF -AUS says:

    I realise this is the church responding to a proposed US law. In Australia we are in the last week of a federal election. We vote on Saturday and have compulsory voting.
    Our conservative party have been in power for 6 years. During this time there was a vote on gay marriage. Althought the official church did not get involved, many local members were very vocal, and this was noted by the extreme right of this party,. They were used to stack branches, meaning they selected candidates who were more likely to be homophobic, anti muslim, and racist. During the election10 of these candidates have been disendorsed after homophobic stuff was found on their social media. So a conservative party finds it unacceptable to have said anything anti gay. Anyone repeating church policy is not acceptable to our most conservative party that is likely to form government.
    Religions generally have lost credibility, by not dealing with internal sexual abuse, and by attempting to enforce their beliefs on others.
    The church doing what it is so that it can continue to discriminate, just won’t convince many people out in the wicked world.
    The solution is to stop discriminating against gays and women too. The longer it takes the less credibility the leadership retains.

  27. A Turtle Named Mack says:

    Thanks for this, Carolyn. Re the timing, I’m not sure the Church was trying to maximize its influence on the legal process, but was mostly interested in sending a public message. This is a Church administration that just can’t resist an opportunity to remind everyone that they view LGBT persons as less worthy individuals. Perhaps they knew this bill wasn’t going anywhere after it passed the House, and didn’t want to miss the opportunity to make a statement. They just can’t help themselves.

  28. “This is a Church administration that just can’t resist an opportunity to remind everyone that they view LGBT persons as less worthy individuals.”

    I don’t think that’s true. That’s certainly the message that is taken, and church PR ought to know that, but I don’t think the leaders making an authorizing such statements actually subjectively intend to say that LGBT are less worthy individuals. I believe they see it as a depersonalized, abstract, doctrinal point. The effect, to be sure, sends a pretty hurtful message to real life individuals in the real world, but I really don’t think that’s the motivation. I think its fair to criticize statements like this for being indifferent to the way they hurt LGBT people, but I really don’t think they’re motivated by an affirmative desire to hurt LGBT people.

  29. ”The effect, to be sure, sends a pretty hurtful message to real life individuals in the real world, but I really don’t think that’s the motivation. I think its fair to criticize statements like this for being indifferent to the way they hurt LGBT people, but I really don’t think they’re motivated by an affirmative desire to hurt LGBT people.”

    I don’t really see this as much less worse option. We, as a people, like to define ourselves by putting others down even though it’s not necessarily consciously done.

    Case in point, the last Sunday school lesson had our class debating whether or not the Holy Ghost was available to the old testament prophets or while Christ was on the Earth. It devolved into a debate whether or not people outside the church had access to the Holy Ghost. This went on and on and I just sat there marveling how no one understood that what we were doing was measuring our own access to spiritual power against others. It made me sad that we would do so so callously.

    But again I don’t think anyone knew they were doing that. Measuring our rightness by pointing out the wrongness of others.

  30. A Turtle Named Mack says:

    I think that’s fair, Jared, and I’ll concede that they “see it as a depersonalized, abstract, doctrinal point”. Rather than intentionally attempting to marginalize LGBT people, they may be consistently indifferent to those effects. Can’t decide which is worse, I guess. I do think it’s obvious that, even with the most recent “rescinding” of the pox, they seem to go out of their way to remind everyone that the Church does not approve of LGBT persons. And this may just be another opportunity to twist the knife, so to speak. At some point, you do have to wonder whether it’s personal, though. They just can’t resist, and so while this appears to be a clumsy and ill-timed legal statement, the reasons for the statement may go well beyond the legal implications.

  31. el oso – It may surprise you to learn that transgender people are threatened, physically injured, and discriminated against even without any “unnatural hormone treatments or mutilating surgery”. Sometimes all it takes is other people finding out for families, employment, and life to be endangered.

  32. Yeah, I hear you guys. Some people say that indifference is worse than hate. I’m not sure where I come down on that, but I do think its important to be accurate about what I think are the subjective motivations of church leaders on this, and to at least read their statements charitably.

  33. FWIW, I don’t think it’s really debatable that the church views gay marriages as “less than” homosexual marriages. And while I agree that the church doesn’t affirmatively think gay people as individuals are “less than” straight members, you don’t have to have an axe to grind to see how opposing a bill that would make it illegal to discriminate against lgbt people is not exactly a reassuring message. The statement calls for “fairness” but the bottom line is that “fairness” in this context means letting people discriminate against lgbt people if they have a religious objection to homosexuality. It’s not much of a stretch to say that that portrays the rights of lgbt people not to be discriminated as less important than the rights of religious people to discriminate against gay people.

  34. I personally dislike how churches in the US feel that they deserve exemptions from laws for their sub-institutions which compete with other non-religious based institutions. I don’t think that anyone is arguing that church’s should be forced to have pastors (or other employees who are employed for the purpose of ministry services) which don’t meet that church’s standards. The fight is happening over employment issues where the churches don’t need to be. If a church wants to fund a hospital, that hospital needs to follow the rules of other hospitals. If a church wants to fund a school, that school needs to follow the rules of other schools. Etc, etc, etc.
    I don’t think that it’s religious discrimination to say that all hospitals, schools, sports leagues, whatever, need to follow certain rules, if they’re to be in society.
    Thanks for this post. It helped point out how lopsided the adjective language was in the church’s statement, which I didn’t consciously pick up on when reading it.

  35. violadiva says:

    Brilliant.

  36. The Church is almost certainly worried due to hirings not technically ecclesiastic such as BYU temple recommend requirements or similar requirements for hirings at the Church Office building, the history department or so forth. It’d be helpful for someone more up on legal precedence to speak to whether that is or isn’t a legitimate worry. I recognize that some, perhaps most here at BCC would love to get rid of such requirements for students and employees. But that seems a separate issue and one more conservative members (including I suspect most of the apostles) are unlikely to share.

  37. Jeremiah S says:

    This unnecessary statement by the Church seems to be at cross-purposes with recent rhetoric about our LGBT brothers and sisters. On a personal note: President Oaks specifically gave one major reason for discontinuing the Church’s terrible November 5 Policy–to simmer down bad feelings between parties in this discussion. But being told that I should only have “basic” rights–it enrages me. Would you just meekly accept the offer of only “basic” or abridged rights for yourself and your family? I would bet that many of you would choose this as a hill to die on, and take the Church’s statement very personally.

  38. Lily Darais says:

    Thank you, Carolyn. I almost didn’t read the post because I am trying not to get too riled up about church issues after having recently stepped away from my membership. But I saw your name and read it in spite of myself. Your explanations were so helpful and your tone is perfect. I hope someone high up reads this post and takes your article into consideration going forward.

  39. Thanks for the helpful analysis.

  40. Carolyn says:

    @Clark: Temple recommend requirements for “secular” Church employment is literally the Title VII case the Church took to the Supreme Court 30 years ago and won.

    Happy reading! https://scholar.google.com/scholar_case?case=18010264432732834038&q=corporation+of+the+presiding+bishop+v+amos&hl=en&as_sdt=20006

    The Equality Act would affect 0% of that. It’s amending Title VII to encompass a broader definition of sex discrimination. It’s not amending Title VII to eliminate the exemption that already exists that religious institutions are permitted to discriminate in hiring on the basis of religious belief.

  41. Clark,

    To add to what Carolyn said, the Equality Act almost certainly doesn’t affect that particular issue, but there are ancillary issues that the Church is concerned about. If you ever attend a religious freedom seminar that the Church is involved in, they often describe religious freedom in terms of concentric circles, where certain rights and liberties are at the core, while others are further out. The closer to the center, the higher the priority. I believe the Church’s concern in this case is a liberty that is one or two circles outside of the one addressed in Amos, which is the right of individual members to take or refuse to take certain actions that violate their conscience, a la Masterpiece Cakeshop.

    The Masterpiece example is right where the intersection of religious freedom and civil rights meet. I think both the law as it stands and public opinion clearly favor certain outcomes that are on either side of the Masterpiece line: it is wrong and should be illegal for someone to refuse services, employment, etc., based on someone’s sexual orientation without a nexus between sexual orientation, the service, and the person’s beliefs (e.g. refusing to bake a birthday cake for a gay customer). Conversely, a religious organization can clearly refuse religious services based on its own religious beliefs (e.g. a church can refuse to marry two people whose marriage the church does not support). In the middle is Masterpiece Cakeshop, where there is (at least arguably) a nexus between the service rendered and the provider’s beliefs.

    Personally, I don’t think the Equality Act would require an artist to create commissioned works that violate the artist’s beliefs, independent of RFRA. But RFRA at least potentially provides another basis to protect the Jack Philips of the world, and I think that the Equality Act’s specific attack on that defense is a cause for concern.

    Personally, I also question the wisdom of adding additional lists of public accommodations, since I just don’t see prevalent discrimination in these areas. Every additional protected class and every additional potential application foments opportunities for litigation. Laws are powerful tools that can be used both for justice and harassment. Where discrimination is widespread (such as during the Jim Crow era) and/or where discrimination results in profound harms to individuals (such as in housing and employment), we ought to legislate people into doing the right thing. Where discrimination is isolated and results in minor harm, we can typically rely on social pressure.

  42. Thank you for this article, BC. I appreciate your wise and thorough analysis. I agree with your points. The Chuch legal department and leadership has done a great disservice releasing this document. It is riddled with holesat best, and it serves no purpose but to stir up hurt and contention.

    There are so many mixed and negative messages here which demean our already vulnerable LGBTQI+ brothers and sisters. The Church has created a community of “others” and “lessers”, once again forgetting that “they” are actually US. Our sons, daughters, grandchildren, cousins, aunts/uncles, parents.

    When our very own scriptures clearly teach that “ALL are alike unto God.” Then it stands to reason that ALL deserve equal protection under the law of our land. Religion does not trump humanity. With that in mind, I am so disappointed the Church Office is not actually choosing to support and champion these measures! At the very least, staying neutral and silent is appropriate.

  43. Jared and Frank,
    Just getting back and able to respond. I agree with Jared that it is certainly not necessary to point out the potential harm that becoming transgender has when there are also many lgbt that are discriminated against in society. I was responding to the question about a logical fallacy in the Equality Act bill. I paraphrased one section of the bill and pointed out that there is a massive logical fallacy stating that one of the rationales for the bill is to improve health and well being of transgender individuals. The act of becoming transgender is a huge health risk for many of these individuals. Trying to legislatively correct a situation that was freely taken upon a person is a huge fallacy in the logic of the bill.

  44. I think everyone is missing the much bigger point here. According to the family proclamation, (and just basic hard science and DNA) gender is part of our eternal identity, not something we can simply change. And why would Satan want us to think we can do that? Because it destroys the plan of salvation. The whole point of the plan is to bring spirits from the pre-mortal existence and give them a body so they can be tested. What better way to completely stop the plan of salvation in its tracks then to encourage people to try and change their divine gender and enter relationships where offspring can’t enter the world. And what better way to ensure people can’t make holy covenants with god by having them deny God’s natural creation and mutilate their bodies/temples? By trying to normalize these actions and give them legal protections we are, in the spirit of “fairness and justice,” actually working to destroy the plan of salvation and denying God’s creation as he made it.

  45. A Turtle Named Mack says:

    Somebody needs to go back and check the “basic hard science and DNA”. It’s not so basic, the evidence doesn’t suggest what you think, and the Proclamation on the Family ignores all of it. Let’s just stop claiming scientific justification for any Church policy.

  46. Sarah, After struggling to find any declarative sentence or rhetorical question in your comment that doesn’t have something factually, logically, theologically, or attitudinally wrong in it (in my limited view, of course), I gave up and settled for appreciating your passion and commitment to what you believe to be right. Thanks for the reminder of the dangers of a reductio ad absurdum argument. Though directed at transgender issues, your reductio ad absurdum is uncannily similar to one of Dallin Oaks’ from years ago as to same-gender marriage. Without changing position on that subject, he seems to have learned not to make that particular argument. You might also be able to find one more credible, even if it does not persuade.

  47. So, Sarah, you think discriminating against lgbt people in their employment, housing, and other public accommodations is justified because you think people being gay destroys the plan of salvation? Assuming for argument’s sake that being gay actually does destroy the plan of salvation, how exactly does discrimination against lgbt people advance the plan of salvation? You think that if we mistreat gay people they’ll suddenly decide not to be gay anymore?

  48. The reasons why no one is bringing any real arguments against my original post, except insults, is because they know it to be true. So did Oaks when he made the same point and he has not backed down from his view on gay marriage if you listen to some of his more recent talks. The doctrine is simple and the purpose of the plan of salvation clear. Families can only be made one way, with a sperm and egg from a man and a women. Take away either piece and new people cannot be born and the plan of salvation is thwarted. Teach people that their gender is fluid and you teach them to deny their own divine potential and God’s creation.

    In terms of the science, it is super simple. XX or XY. Sure there are some abnormalities in some people’s genes, but those are called medical conditions, not new genders. Whereas if you look at “modern social science” or soft science, they can be 20, 30, or even 70 different genders. And because it is not real science, they can not agree to how many made up genders there are. Truth is either absolute and a tree is a tree and a dog is a dog, or all truth is relative and anyone can decide to be whatever they want to be and only they can tell you if they are a tree or a dog. And if truth is relative then anyone can decide to be any gender, age, race, or even species they want to be. But at the end of the day, when a scientist digs up Bruce Jenner’s bones and does a DNA test, they are going to declare him a Caucasian, human, male. Because that is what his DNA says.

    And in terms of how they should be treated, all people should be treated with respect, but no one should be forced to recognize or give special treatment to others based on their personal perceptions of reality. Mentally confused men should not be able to compete in sports as women or go into locker rooms with females. They don’t get to change reality and force others to capitulate to their delusions.

    The church and doctrine cannot bend to help sinners feel better about their sins, which of course will make those who want acceptance of their actions eternally angry. But too many confuse God’s love with God’s acceptance of anything and everything. In the parable of the adulterous women Christ said, “They sins are forgiven thee” meaning there was something bad that needed forgiving in the first place. Next he said, “go and sin no more.” He didn’t say “oh go ahead and keep doing what you were doing.” His forgiveness was not acceptance of evil. But simply that, forgiveness. God doesn’t like it when we do bad things but he still loves us. But too many people say, “well God loves everyone so he must love everything about them.” Well sure he does love them, but that doesn’t mean he likes what they are doing. The LGBT community is in that boat. Demanding God accept everything you do because he loves you is barking up the wrong tree. Instead he said, “If ye love ME, [you] keep my commandments.” So yes it is on the LGBT community to change and keep Gods commandments, not for the church to change the definition of morality, truth, and accept the very behaviors which would destroy the plan of salvation itself.

  49. Sarah,
    I recommend you listen to the RadioLab Gonads episodes available in the RadioLab podcast feed. They aired starting last June. They are a good introduction to just how messy the science actually is.

  50. Impassioned BS, Sarah. I’ve shoveled enough out of the corral in the spring and in the course of law practice to feel reasonably confident, even if not certain, that I can recognize it.

    The behaviors on the part of a small minority of humans that concern you will not destroy the plan of salvation, though in current LDS doctrine it seems to take that minority out of a plan of exaltation. My earlier comment included no insults. It also included no arguments — not because I know you are right, but because I am convinced (rightly or wrongly) that no argument has a chance of persuading you that you have overstated the case. It seems presumptuous of you (and that is also not an insult) to suppose that you know that others know that you are right.

  51. Sarah, anti-discrimination laws don’t require anyone to give anybody special treatment. They require that people be treated the same as everyone else regardless of their race, religion, gender (and in some cases, orientation or family status). That’s literally the opposite of special treatment.

  52. JR- having grown up on a farm myself I appreciate your expert opinion of my BS. But as a diplomat in the foreign service (name dropping my profession as to give me some superior credibility) I also like to consider myself open to new view points and additional light and knowledge.

    Also, since my sister is gay I would also love to see a legitimate counter argument to the doctrine I have laid out (seriously). Because of my families personal circumstances I have truly studied this in depth and don’t really see any other way around the doctrine the church and scriptures has laid out.

  53. Sarah – I believe gender is immutable, and in the PotF. I believe I was, am, and will be female. I believe the gender of the body I was given is contrary to that, for some reason only God knows. We’ve had a number of people in the Church whose gender was in some way ambiguous, had one gender assigned, and were allowed to have their gender markers and privileges in the Church changed after a lengthy process that involved the First Presidency.

    Some seem to think that belief in being the wrong gender (or gay) is just a fad, a phase, or some “grass is greener” misconception. This is rarely (if ever) the case, especially for those of us clinging to the rock while others tell us it’s impossible (and still others try to knock us off). It is never undertaken without a great deal of communing with God.

    The idea that XX/XY is the differentiation is a simplistic and incomplete understanding of how we determine gender. Gender has been (and continues to be) based on a “best guess”, rather than genetics, especially when any ambiguity is involved. Even when there is no obvious ambiguity, there is variation elsewhere, in brain function, in glandular output, in appearance, in genetics still being discovered, that nailing down “you are x gender” is less than 100% accurate.

    Until someone comes up with a “spirit detector” or you see us in the afterlife, the best that can be done is to trust we are what we say we are. No one is asking for “special treatment”, but for protections against others mistreatment of us. Protection from bodily harm, in employment, in housing should be easy, but the fear is that it will lead to forcing you to change what you believe, which is absurd. We should be striving to treat all of our siblings with kindness and to protect those who need protecting not just those whose beliefs that don’t bother us.

  54. But as a diplomat in the foreign service (name dropping my profession as to give me some superior credibility)

    Depending on the argument being made, name dropping one’s profession might also undermine the credibility of the name-dropped profession, so there’s that outcome to consider too.

    At any rate, I’m a little surprised that a diplomat is taking a normative statement about how humans ought to arrange their closest relationships—the family proclamation—as containing truths that are blindingly obvious thanks to science. No doubt science can be used to inform norms, but declarations like “Families can only be made one way, with a sperm and egg from a man and a women” are hardly grounded in science of any stripe.

  55. Sarah, the way you state your “obvious” post makes it sound like the church should be fighting any LGBT person tooth and nail in attempts to conform them to prescribed norms; or else God’s plan will be defeated and this Earth will have been a waste. The church isn’t taking that stance. While the tone of their adjectives are a bit one sided, the church is still trying to strike what it finds to be a fair and balanced approach. Not a “my way or the highway” approach.
    As for the science of gender. It would be nice if it were as simple as XX and XY; but it’s not. Scientists have found straight men with XX chromosomes and straight women with XY chromosomes. If it weren’t for the genetic tests there are no other indications that these people have anything different about them. How can this be? Human Chromosomes contain 48 – 2000 genes (AFAIK); it’s a combination of those genes which determine gender.
    There are animal species which can switch gender based off of environmental factors. There are processes which periodically run in their bodies which can determine that it’s time to change genders. How’s that for gender being eternal. And those genes, and those processes run in human bodies as well. Multiple times a day there are genes sending signals in your body asking what gender you should be now. Now our organs are more resilient to change than fish and amphibians, so a human isn’t going to change sexual organs, but I wouldn’t be surprised if that process can cause hormone wackiness which could make one feel like they’re in the wrong body.
    Does science know why one would feel gay or transgender? No. But it’s more complicated than X and Y chromosomes and that’s it. Do we know that the genes which do determine gender are 100% consistent throughout a human’s life? No, we don’t know that. Perhaps they’re inconsistent.
    Now doctrinally I think that Latter-Day Saints are the best off when having a framework for an explanation of transgendered persons. For all of the weaknesses that God gives us in mortality, for all of the imperfections a spirit might need to endure in a temporal body, why couldn’t being in the wrong gendered body be one of them? You would have to say “The mismatch of spirit and mortal body genders is the one imperfection that God would never allow to happen. All others are game, but not this one.” Or you could think “Until revealed otherwise, it might be a possible weakness that God will have some individuals struggle through. What’s my role in assisting those in this life?”
    I don’t know how those denominations which don’t have a doctrine of eternal genders and a premortal life, can explain those real and livid experiences that people experience beyond waving their hands and saying “God works in mysterious ways.” Latter-Day Saints though, do have a framework to explain possibilities. I don’t find the idea of having legislation protecting people from discrimination as undermining God’s plan.

  56. peterllc, You got it. Being a lawyer who has had to shovel BS is not a claim of superior credibility, but of personal experience that reflects negatively on the profession or at least some of its professionals. In fact, I don’t care who thinks I’m credible or not in identifying BS.

    Sarah, truth, morality, salvation vs. exaltation, historical changes in Church doctrine (teaching), distinctions between salvation and exaltation, definition of gender, eternal nature of gender (whatever it is, e.g., for a person with XXY chromosomes and more who do not fit the Proclamation unless it meant to define them as not persons/not children of God), and the question how much of what you wrote is hyperbole all go far beyond what could be appropriately addressed here, even if I were the right person to address them. In addition to MTodd’s recommendation, for some of these issues Greg Prince has provided helpful background — on biology and on the history of LDS teachings, the latter in his recent book “Gay Rights and the Mormon Church.” On eternal gender, for fun you could also check out “Doctrines of Salvation” and JFS’ theory irreverently dubbed by others the TK smoothie doctrine. It is quite unclear to me exactly what it is, stripped of hyperbole, to which you would like to see a “legitimate counterargument” or what you think may be “legitimate.” So, not for me, not here, not now. Instead, I suggest reading Frank Pellett and MTodd’s recommendation and Greg Prince and then refine both your questions and your statements of whatever it is to which you want to see a legitimate counterargument.

  57. Frank – My questions for you are sincere, and I have pondered this for many years. What is female? What is male?

    Traditionally/historically sex and gender have meant the same thing, as they were used as classification words to distinguish the two reproductive groups within species. For humans that referred to females (XX, ovaries, uterus, vagina) and males (XY, sperm, testicles, penis). This was a useful and pragmatic etymological distinction. Most dictionaries and medical and biological journals used the sex and gender terms interchangeably. Only recently has gender transformed new sociological meanings distinct from sex, and some people define the terms dramatically different while other people still use them as the same. I have studied much of the literature on genotypes, phenotypes, and the multiple naturally occurring intersex variations of chromosomes, hormones, gonads, and genitalia. It is clear to me that there are verified cases of humans who do not fit neatly into a strict medical/biological definition of male or female, based on a physical science definition. Yet it is also clear to me that the vast majority of humans claiming to be transgender are not medically confirmed as intersex, and as such their claims are only supported by their own personal claims of their own thoughts and feelings, perceptions, and experiences. As such, I question how people are using the terms male and female. What does it mean to be female? Is it a feeling, an attitude, a belief system, a behavior, a lifestyle, a stereotype, a set of internal characteristics or traits, a set of external characteristics or traits?

    If the gender of the physical body you were given does not match the gender of your spirit/soul/mind/self, then how do you recognize, identify, or define your true identity gender? This is a since question.

    A man cannot become a woman by simply conforming to social feminine stereotypes, nor can a woman become a man by conforming to masculine stereotypes. Yet unfortunately when many transgender people come out we see this public transformation, which then in the public eye reinforces that gender is equated with physical appearance and behavioral stereotypes. But a man should still be able to be a man without conforming to masculine stereotypes and a woman should still be able to be a woman without conforming to feminine stereotypes.

    So, with all genuineness and sincerity, please help me understand what you mean by male or female. If not defined or explained by chromosomes, phenotypes, or genitalia, if not defined by socially constructed stereotypes, then how does a person define, and how is society to understand gender? Does gender have any objective meaning?

  58. Thanks for this post, Carolyn. I particularly appreciate your contrast of the words the Church uses to describe its rights versus the words it uses to describe the rights of LGBT people. It’s a depressing contrast.

  59. A common failing is to try to force a bimodal distribution into an exclusive binary. To say 45% of human beings fit a commonly understood “female” pattern in enough ways to leave nothing much to quibble about, and 45% of human beings fit a commonly understood “male” pattern in enough ways to leave nothing much to quibble about, is not at all the same as requiring every human being anywhere on the distribution to fit neatly in one or the other category. Real work on gender is very complicated and admits of fuzziness and social construct and self definition and more.

    As for scripture (and the Proclamation on the Family, what that is), I choose to be generous about absolute terns, understanding them as not a scientific or logical treatise but as story. “Eternity” and “forever” –> a very long time. “Every” –> 95%. “Always” –> almost every time, enough to bet on.

  60. Tim – I’m glad for the questions and hope we’re not bothering the OP too much with the tangent (apologies).

    The advances that have been made in learning the less obvious differentiates for gender should be a clue that we have yet to learn all there is to learn about what variations exist and how to find them. What was once “a useful and pragmatic etymological distinction” was insufficient, leading oftentimes to shame, isolation, institutionalization, and death for those who did not conform to what was then the most advanced scientific understanding.

    LDS theology says that we bipartite creatures, a spirit clothed in imperfect substance. This leaves open the possibility that the imperfection can include what we currently understand in identifying gender. There are an incredible number of imperfections that are genetically innate, but at this time for gender and sexuality we get the cry “why would God do that?” In the past, trying to answer this question for anything led to populations being declared as lesser because of “God’s judgement”. We need to be better, applying John 9:3 – ” . . . but that the works of God should be made manifest . . . ”

    “But a man should still be able to be a man without conforming to masculine stereotypes and a woman should still be able to be a woman without conforming to feminine stereotypes.”

    This I really want to address. Yes, some transgender people seem like stereotypes, but so do some cisgender people. It’s just more obvious in transgender people because people find it jarring to see that change occour. There are transgender women who are “tomboys” and transgender men who are very effeminate. What gender you are has no bearing on what habits and affectations you have. People who say to others, “you’re so feminine, you should just become a woman” are being hurtful, not helpful (just as is saying things like “you like show tunes, you must be gay”). We cannot define other people for them.

    The only person who can determine your gender is you. If you believe in God, then the determination is between you and God. No one else has the ability or right to say otherwise. Since we have no way of even objectively defining that a person has a spirit, it would be impossible to objectively determine the gender of that spirit.

    For me, I only understood that it was even possible to be transgender about two years ago. I had grown up with the knowledge that what we looked like in the pre-existence was what we looked like now, so the times of longing to be included with the girls as a girl, the unconscious choosing of women as my role models, the dissatisfaction with how my body has grown must all have been just quirks and desires that could never be. I had a male body so I must have had a male spirit.

    But much later in life I learned about how much variation there is and how much we still don’t understand about how these bodies work and how we determine gender. I learned about those who were accepted in the Church as a different gender than they had been assigned because science at the time determined incorrectly. Most of all, I spent quite a lot of time on my knees in prayer and in the Temple. I believe my prayers to know my gender have been answered, and now know I have always been female despite the trials given me of having a male-apparent body.

    I don’t know if I will ever transition. I hope to, someday, but I’m also getting older and have my family and livelihood to consider. My wife and I know we want to be together forever, but do not know how this all will work out in the afterlife.

    In any case, this has already gone longer than the OP, which I find annoying so for which I will apologize again.

  61. Tim, Then there was the XY guy an MD friend told me about, who in addition to his male “equipment” also had a functioning pair of ovaries producing the estrogen that kept him alive after testicular cancer. And there are the guevedoces who are XY but lack any observable male genitalia until puberty, about age 12. It just doesn’t work to assume that even the XX/XY chromosomal distinction resolves the question of gender identity for everyone. And, for what it’s worth, per BBC at http://www.bbc.com/news/magazine-32037397, in 2015 “The number of children aged 10 and under who have been referred to [National Health Service} support services to help deal with transgender feelings has more than quadrupled in the [prior] six years.” Christiankimball’s approach to the Proclamation on the Family (whatever that is) is about the most generous that can be justified as to gender and its eternal nature.

  62. Sarah,
    You indicated that since your sister is gay, you would appreciate counter arguments to your currently held position, I recommend you study with an open mind how the Episcopal church has resolved these issues. Here’s a pdf with their discussion:
    http://archive.episcopalchurch.org/documents/ToSetOurHope_eng.pdf

  63. Sarah,
    Thank you for representing a viewpoint that is more grounded in reality than most here.
    When I read statements like:

    > declarations like “Families can only be made one way, with a sperm and egg from a man and a women” are hardly grounded in science of any stripe

    I feel like I have stumbled onto a group of anti-vaccers or Trump supporters. While it is true that not all babies come from a man and a women having sex, even things like invitro come still involve an egg and a sperm. Science is rarely 100% binary or without some nuance, but to say it is not grounded in science to say babies are made by an egg and sperm is absurd.

  64. George, I think you’re conflating baby-making and family-making, which it seems pretty clear is what peterllc was arguing against.

  65. (Sorry for the delay in responding)

    Dsc & Carolyn, I agree that the Church has some concern with the concentric circle issue. My sense from reading Catholic concerns, is that some of that is because of the redefinition of what a place of public accommodation is. Even if what you say is true, regarding temple recommends at BYU, that doesn’t seem to be the only issue. Rather the act amends Title VI of the Civil Rights Act so that any recipient of federal funds may not discriminate anywhere in its operations. So BYU might have a constitutional right to require a temple recommend but simultaneously be denied federal education funds. As you know that is a traditional stick the federal government uses against universities to ensure they follow such requirements. Now it may be that the decision regarding religious freedom applies there. Judging by the number of people raising the issue though this seems unclear at best. (I’m no attorney so I have no opinion here – maybe someone like Nate Oman could chime in one day)

    If there is no reason to fear, it’s unclear why the bills authors refused to add religious exemptions to make these points clear. Admittedly politics being politics and the way religions are (sometimes with justification) demonized here, that would hurt the effect with the base. Perhaps these fears are overblown (although it’s moot since this will never go through the Senate and authors knew that – this is largely political theatre). I’m not really convinced yet there is nothing to such fears though.

  66. “A religious conviction is now a second-class conviction, expected to step deferentially to the back of the secular bus, and not to get uppity about it”

  67. Mark, you may sit wherever you want on the bus. For far too long our LGBT brothers and sisters have been relegated to the back or worse, kicked off. Don’t you get uppity now that lawmakers are passing legislation making it a crime to throw our LGBT friends off the bus because our religious friends feel homosexuality is a sin.