Tonight, after a long absence, I am firing up the blog to address two nondiscrimination ordinances on tomorrow's work session agenda.
The ordinances were previously discussed in a November work session and will be discussed once more tomorrow. On Tuesday night at 7:10, they will become the subject of a public hearing. Later that evening, they will proceed to the council's regular agenda for discussion and action.
The ordinances may be viewed in their entirety at the following links.EmploymentHousing
Many questions have been raised, which I now answer, begging forgiveness from those who prefer short posts.What are the ordinances in question?
The two ordinances, which mirror those passed in Salt Lake City and endorsed by the Church of Jesus Christ of Latter-day Saints, make it punishable as a civil matter for businesses with more than fifteen (15) employees or landlords with more than four (4) units to make hiring and firing decisions or deny housing based on sexual orientation or gender identity.What do the ordinances do?
They provide a way for someone who feels they have been discriminated against in rent or employment (such as being evicted or fired), because of their sexual orientation or gender identity, to submit a complaint to the city. The city arbitrates between the complainant and the landlord or employee. If the complaint is found to be valid, and no resolution is reached, a fine is imposed. The fine would be $500 to $1000, depending on the size of the organization.Are there exemptions?
Yes. Landlords with fewer than four (4) rentals, employers with fewer than fifteen (15) employees, and religious organizations are exempt. This provides protection to landlords or families who may just rent out part of their house, or small businesses who cannot afford the time and effort of an arbitration process. It allows churches and other expressive associations (for example, the Boy Scouts of America) to make hiring decisions consistent with their values.What don't the ordinances do?
They do not address the issue of gay marriage. They do not allow for lewd or harassing behavior. They do not create a protected class.I have been told by the Sutherland Institute that these ordinances do create a protected class, and that they raise other constitutional challenges.
I disagree with the Sutherland Institute. I see no constitutional violations.
To quote from the text of both ordinances: "This chapter does not create a private cause of action, nor does it create any right or remedy that is the same or substantially equivalent to the remedies provided under federal or state law. This chapter does not create any special rights or privileges which would not be available to all of the City's citizens, because every person has a sexual orientation and a gender identity."In other words, this legislation creates no protection that isn't available to all.
Elsewhere, the Sutherland Institute has argued that the ordinances violate the freedom of speech and, by extension, the freedom of association. Again, I disagree, for two reasons. First, religious institutions and expressive associations have been carefully exempted from the ordinances. Second, I look to these ordinances to protect religious freedom by granting two basic human rights to people of all beliefs, even those whose beliefs and practices differ from my own.Is there a need for this in American Fork? Will these ordinances result in an expensive and burdensome caseload for the City and the taxpayer?
I address these two seemingly unrelated questions together, because their answers seem to contradict each other.
Yes, there is a need in American Fork. Statistics provided by Equality Utah suggest that four percent of the population at large is gay, lesbian, or transgender. This by itself suggests a significant LGBT population in American Fork. I have been lobbied by constituents asking for protection. I have reviewed anecdotes submitted by the gay community of numerous acts of employment and housing discrimination, all taking place within Utah County.
What I have found most personally persuasive are the funerals I have attended -- including one in American Fork -- of gays who have taken their own lives. Yes, there is a need.
However, the need does not translate to a burdensome caseload. In the eleven Utah cities where similar statutes have been adopted, the caseload has averaged one every two years.Will this create undue hardship for employers and landlords?
Again, with an average caseload of one every two years, this should not create unwieldy or expensive burdens. The terms of the ordinances are quite gentle, favoring conciliation, with prosecution sought only as a measure of last resort.Most nondiscrimination laws are enacted at the State and Federal levels. Why is American Fork considering this legislation?
The Utah State Legislature made a decision not
to address the issue, preferring to leave it in the hands of local governments. The city council is addressing the issue at this time because constituents have requested it.Don't you see this as out of step with Utah's values?
According to a 2011 poll
, 71 percent of Utahns approve of these measures.The Sutherland Institute gave other reasons to oppose the ordinances.
The Sutherland Institute said, "Policies that give legal protection to such ambiguous, self-defined concepts as 'perceived sexual orientation and gender identity,' without equally strong protections of an individual's sincerely-held religious beliefs, have in practice eroded religious liberty."
A reading of the ordinances shows that the concept is clearly defined and religion is carefully protected.
The Sutherland Institute said, "Creating a legal mandate of non-discrimination singling out 'sexual orientation' and 'gender identity' for special protection would have unintended consequences for employers like forcing them to choose between getting tagged as 'discriminatory' by the city or being sued by customers, without solving any real social problem."
The ordinance protects proceedings as confidential and, in my view, solves a real social problem, as I have already discussed.
The Sutherland Institute said, "These non-discrimination ordinances will impose substantial costs on business in the city through the threat of litigation, training, fines, etc."
Litigation and fines are listed as a course of last resort. In practice, the caseload in Utah cities has been small, and all have been resolved through conciliation.Have these ordinances been given adequate time for public discussion?
Yes. As I stated at the onset, these ordinances will have been discussed in two work sessions and one hearing before the council's vote. In American Fork, the usual practice is for an ordinance to be discussed only once in a work session prior to deliberation and vote.You mentioned the LDS Church. Is that appropriate in a government setting?
First and foremost, I value the separation of church and state. I represent a pluralist constituency, and my record will show that I vote to protect that diversity. As I am elected by the people, I must answer to the people, not to the church.
On the other hand, as we are learning from the media frenzy surrounding Mitt Romney, religious values do shape beliefs, and they can't always be separated from political discussion. I am a devout, conservative Mormon, as are at least half of my constituents. We share a commitment to sexual purity, and the LDS church is one of the last remaining champions of this standard. It is nearly impossible to address this issue without some discussion of the values of those I represent.Do you think a vote will change the morality of homosexual behavior?
The ordinances in question will not make homosexual behavior moral or immoral. They will determine how the law treats gays who have been discriminated against in matters of employment and housing.What are your personal views on the subject of nondiscrimination?
I understand that it can be difficult for many to accept or discuss homosexuality. Heterosexuals find it repugnant, and Mormons in particular are committed to a standard of sexual purity. I don't expect these ordinances to change any of this.
However, when I consider how I must treat my homosexual neighbors, I find myself influenced by the example of Jesus when He reached out to the lepers, who were the outcasts of His day. I remember His complete and total forgiveness of the woman caught in adultery.
I therefore find myself in complete agreement with the LDS Church in the statement
it made before the Salt Lake city council. The occasion was the passage of the two ordinances on which American Fork's are patterned. The date was November 10, 2009. I quote in part:
In drafting these ordinances, the city has granted common-sense rights that should be available to everyone, while safeguarding the crucial rights of religious organizations, for example, in their hiring of people whose lives are in harmony with their tenets, or when providing housing for their university students and others that preserve religious requirements.
The Church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage. They are also entirely consistent with the Church’s prior position on these matters. The Church remains unequivocally committed to defending the bedrock foundation of marriage between a man and a woman.
I represent a church that believes in human dignity, in treating others with respect even when we disagree – in fact, especially when we disagree. The Church’s past statements are on the public record for all to see. In these comments and in our actions, we try to follow what Jesus Christ taught.
I have witnessed first-hand the fear that homosexuals live with when it comes to employment, and I have seen how it interferes with their ability to earn a living wage.
Twenty years ago, I worked as the assistant manager at a bookstore in upstate New York. We had a vacancy to fill, and the manager came to me with a question. He had just interviewed an excellent candidate, but he had only one reservation. The candidate was gay. Knowing my religious background, he asked me: Would I be willing to work with a gay man?
This was the early 1990s, and gays were not "out" in the mainstream to the extent that they are today. I had never confronted the issue before, but I could see no reason why a gay man couldn't sell books. I had myself, as a Mormon, been on the receiving end of discrimination, and couldn't bring myself to join the delivery end. I told the manager to make the hire; I would have no problem.
He was the best hire we ever made. He was honest and hard-working. He was great with the customers. He took a real interest in the books. As for his being gay, he never did or said anything even remotely inappropriate.
I was shocked when he came to me six weeks later and announced he would be leaving. "Please," I said, "Don't go. Why are you leaving?"
I was shocked again when he confided in me that he was gay. "Once the manager finds out I'm gay, I'll be fired," he explained. "And I think he's catching on."
I protested. I tried to explain how the manager was already aware, that it hadn't affected the hiring decision, that we hadn't mentioned it to the other employees, that he was the best worker we had ever had. To no avail. His fear of being fired was palpable, and he couldn't live with it. "Federal anti-discrimination laws protect you as a woman," he said. "They do not protect me."
I watched him, after that, light from job to job in the mall, never staying in one place very long. I have wondered whether his fear of discrimination hurt him more than any actual discrimination. As I have considered this case, and others like it, I have come to believe that the mere existence of a protective law on the books will give people like him a better chance at making a decent living.