Why Idaho’s ‘Add the Words’ LGBT compromise stalled

A year ago, the decadelong campaign to write protections into Idaho’s human rights law based on a person’s sexual orientation or gender identity staggered through a three-day House committee hearing and then died on a party-line vote. The Capitol was the scene of protests, blocked doors and acts of civil disobedience.

Two months ago, as the current session began, legislative leaders said a compromise was in the works. That seemed to call timeout on the Statehouse protests, and mass arrests, of previous years.

But then last week, the Senate President Pro Tem, Brent Hill told reporters the compromise had hit a wall, probably for the year. He called it the greatest disappointment of the session, which is now some three weeks from adjourning.

What gives? Didn’t Utah pass its own compromise bill last year, balancing LGBT rights with safeguards for religious freedom? And didn’t last year’s Supreme Court ruling in favor of same-sex marriage, though not quite on point, pretty much resolve the lingering questions anyway?

Yes and no, respectively. In fact, taken together, the two events might have made things more complicated for Idaho, a state trying to reconcile unstoppable social change with old-time religion and ideology.

“You kind of have to embrace the idea that change is inevitable and you can manage it, or you can try to deny it,” said Sen. Grant Burgoyne, a civil rights lawyer involved in compromise discussions. “If you try to deny it, you’ll lose.”

Where things stand

There’s been a core group of senators looking at the issue: Republicans Hill, Majority Leader Bart Davis of Idaho Falls, Curt McKenzie of Nampa and Steven Thayn of Emmett; and Boise Democrats Burgoyne and Cherie Buckner-Webb. No one from the House? That’s not exactly an oversight. To win support there, someone from the more conservative ranks of the Republican majority needs to step up. So far, no one has.

To succeed in Idaho’s Legislature, a bill needs to do three things: enact LGBT protections, address religious concerns and win the votes to pass. The deadlock, which extends well beyond the senators at the table, rests on competing constitutional principles. Broadly speaking, the religious camp focuses on the First Amendment free exercise of religion. The LGBT-rights camp hones in on the Fourth Amendment right to privacy and 14th Amendment equal-protection clause.

Those in the latter camp say that sufficient religious freedom protections already exist in state and federal law, so just add the darn words. Burgoyne is in that category. He favors a law that “protects people in their own religious beliefs, without allowing them to essentially export their religious views onto other people.” In other words, practice your faith freely unless it ruins someone else’s day.

Utah, Supreme Court

The Utah compromise approved last March banned discrimination against lesbian, gay, bisexual and transgender people in housing and employment. It exempted certain religious organizations — that was the compromise. But it also sidestepped the question of discrimination in public accommodation — renting a hotel room, eating in a restaurant or buying a wedding cake. That’s why some LGBT rights advocates disliked it.

That omission is being addressed in Utah, or rather, it was. State Sen. Jim Dabakis of Salt Lake City, who sponsored last year’s compromise, this year introduced a bill to address the public accommodation question. But he pulled the bill last week, saying it “wasn’t the right moment.”

Adding here, omitting there?

Whether, and how, to take up the public accommodation question is one issue for Idaho. But there’s another that plays to the concerns of the free-exercise-of-religion camp: What does “exercise” mean, constitutionally speaking? Their concerns were stoked, rightly or not, by the majority opinion in the Supreme Court ruling on same-sex marriage.

That opinion from Justice Anthony Kennedy mentions, in passing, the right to “advocate” and “teach” religion. The dissent from Chief Justice John Roberts chastises it for failing to assert a right to “exercise” religion, saying the omission “creates serious questions about religious liberty.” If you run with this view, the matter is now potentially unsettled law.

Does Idaho, in its Add the Words debate, need to address that, too? The answer lies in the compromise that has not been reached. Work on it continues, even as the session moves to a close. LGBT advocates, so vocal and prominent in past sessions, have been patient, and quiet, for the time being.

“It is really easy to sit and write an editorial or a column or a letter to the editor, or even an email that says, ‘Here is the right solution,’ ” said Davis, also a lawyer. “But now I’ve got to make that work in the courtroom, where words really matter, and that language has been harder to find and to crochet than perhaps what our collective hearts agree on.”

This story was originally published March 5, 2016 at 11:22 PM with the headline "Why Idaho’s ‘Add the Words’ LGBT compromise stalled."