On Tuesday, Representative LaVar Christensen (Republican – Draper) introduced HB 322 – Religious Liberty Recognition and Protection Act – which is meant to both protect individual religious liberties, but apparently not the rights of the LGBT community – something that flies counter to the wishes of legislative leadership.

This is the third bill to be introduced this session covering these two topics, the others being SB 100 – Antidiscrimination Amendments sponsored by Senator Steve Urquhart (Republican – St. George) as well as HB 66 – Marriage Modifications and HJR 5 – Proposal to Amend Utah Constitution – Protection of Religious Rights, both of which are sponsored by Representative Jacob Andregg (Republican – Lehi).

How Christensen’s bill differs from two others is the areas they cover. Andregg’s legislation protects clergy and elected officials from opting out of marrying couples whose lifestyle are counter to their religious beliefs. Christensen’s bill does not cover this issue directly, instead it protects anyone from being forced to provide services or to comply with policies that go against their “sincerely held religious beliefs.”

Christensen’s bill provides very strict and limited exceptions to this law for public health and safety, as well as compelling state interest and where no other options are available.

It should be noted that these types of protections have already been well established by the Supreme Court.

Finally, Christensen’s language is very thorough and seems to this reader to provide an out for individuals to, in fact, discriminate based on housing and employment, that “a recognized exemption to otherwise generally applicable laws and a valid defense to claims of discrimination by others.”

At what point does a protection supersede the exception and vice versa? There is no clear line and will most likely became the subject of litigation in Utah’s courts. If a Catholic homeowner refuses to rent to a lesbian woman, is the homeowner exempt? What if it’s the only house in her price range? The language is not clear.

This runs counter to Urquhart’s bill that specifically includes language regarding sexual orientation and gender identity as being specifically protected from discrimination in housing and employment. SB 100 would clarify that discrimination will not be allowed under the law, and there is little room for interpretation on this fact. If a gay man loses his job specifically because of his sexual orientation, it would be illegal under Urquhart’s bill.

HB 322, on the other hand, places the rights of religious liberty above all else – especially if Utah law isn’t updated to recognize sexual orientation or gender identity, and will create troublesome ambiguity for the courts.

Indeed, the first language change in his bill states: “All individuals are entitled to fair access to employment opportunities in the state. Such opportunities are vital to the health and well being of all people. The laws of the state shall be fairly applied in balanced recognition and protection of all affected interests.” The bill later includes language protecting housing, however the vague nature of the bill’s language provides wiggle room and interpretation that may result in lawsuits on both sides. What qualifies as “fairly applied?” How can you measure “balanced recognition and protection?” Will these claims of “affected interest” be redressed in the courts? Once again, the language is not clear.

Vague and somewhat redundant, Christensen’s bill provides a gold mine for litigators.

What this bill does have going for it is that it fits the half of the requirements Republican leadership are looking for in light of recent statements by the LDS Church. However, it falls well short of the second requirement most Republican leaders have been calling for – a nondiscrimination aspect that protects those in the LGBT community.

Currently, however, the bill is sloppy and will be divisive for members, probably resulting in horse trading and needless amendments. The fate of the legislation is unknown, as lawmakers have signaled that they want guarantees for the LGBT community as well. By running this legislation without antidiscrimination aspects mixed in, there is a real possibility that no protections for the LGBT community will make it through the legislative process, creating heartburn for many on the hill.

Expect a wide range of possibilities for HB 322 – nothing is certain with this one. As it stands right now, however, it will most likely cause more problems than solutions for the state.

To contact Representative Christensen, click here or call 801-808-5105.

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