Legislative Updates - 9 March 2015

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Dear Friends:

SB296, “Antidiscrimination and Religious Freedom Amendments”, has caught our attention this week as it was publicly distributed and introduced into the Senate on Wednesday, March 4th. We are concerned that SB296 may infringe on various unalienable rights, recognized by our state and national constitutions, and that it may damage various safeguards for those rights.

We therefore hope that keeping Utah Code consistent with our state and national constitutions will be at the front of each legislator’s mind as he or she reads, ponders, and deliberates upon SB296. We feel that such attention to constitutional authority and limitations is important to the maintenance of a free society. And while all may not agree on the meaning of various constitutional provisions, and what exactly are our unalienable rights, we will nevertheless venture to express some of our concerns.

Senate Bill 296 Summary

SB296, “Antidiscrimination and Religious Freedom Amendments”, sponsored by Senator Urquhart, Senator Adams, and Representative Dee, would modify definition provisions related to employment and housing discrimination, including:

• specifying that "employer" does not include “a religious society, a religious educational institution, or . . . the Boy Scouts of America or its councils, chapters, or subsidiaries”;
• defining "gender identity" to have “the meaning provided in the Diagnostic and Statistical Manual (DSM-5). A person's gender identity can be shown by providing evidence, including, but not limited to, medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person's core identity, and not being asserted for an improper purpose”; and
• defining "sexual orientation" to mean “an individual's actual or perceived orientation as heterosexual, homosexual, or bisexual.”

Furthermore, SB296 would:

• include sexual orientation and gender identity as prohibited bases for discrimination in employment;
• address the Utah Antidiscrimination Act's application to employee dress and grooming standards: “This chapter may not be interpreted to prohibit an employer from adopting reasonable dress and grooming standards not prohibited by other provisions of federal or state law, provided that the employer's dress and grooming standards afford reasonable accommodations based on gender identity to all employees”;
• address the Utah Antidiscrimination Act's application to sex-specific facilities: “This chapter may not be interpreted to prohibit an employer from adopting reasonable rules and policies that designate sex-specific facilities, including restrooms, shower facilities, and dressing facilities, provided that the employer's rules and policies adopted under this section afford reasonable accommodations based on gender identity to all employees”;
• address employee free speech in the workplace: “An employee may express the employee's religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer”;
• prohibit an employer from taking certain actions in response to certain employee speech outside the workplace: “An employer may not discharge, demote, terminate, or refuse to hire any person, or retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or expressive activity outside of the workplace regarding the person's religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer”; and
• include sexual orientation and gender identity as prohibited bases for discrimination in housing.

SB296 Bill Status and Progress

SB296:

• was publicly distributed and introduced in the Senate on Wednesday, March 4th;
• passed the Senate Business and Labor Committee 7-0 on Thursday, March 5th;
• passed the Senate 23-5 on Friday, March 6th; and
• awaits House action.

SB296 has the appearance of being on the “fast track” to passage, but, if enough representatives in the House believe there has not been sufficient deliberation on the bill, and act on that belief, then it may be pulled off of the “fast track”.

GrassRoots Concerns with SB296

We have several concerns with SB296.

*We are concerned that SB296 may further infringe on the unalienable right of individuals to exercise control of their property, contrary to the original intent of various constitutional provisions:

“No person shall be deprived of life, liberty or property, without due process of law” (Utah State Constitution, Article I, Section 7; see also United States Constitution, Fifth Amendment).

“Private property shall not be taken or damaged for public use without just compensation” (Utah State Constitution, Article I, Section 22; see also US Constitution, Fifth Amendment).

We are aware that there are differing views on what constitutes, or should constitute, lawful use of property. But if we are careless about respecting property rights, then rights of religious and other liberties are immediately vulnerable. It seems to us impossible to trample on property rights and preserve religious liberties.

How should we define lawful use of property? Governments have long been able to enforce (even if imperfectly) such standards as “Thou shalt not steal”, “Thou shalt not kill”, and “Thou shalt not lie” without trampling on unalienable rights. On the other hand, as important as is the commandment to “Love thy neighbor [probably without exceptions for race, religion, sexual orientation, or other factors] as thyself”, there is abundant reason to doubt the government’s ability to enforce it without infringing on unalienable rights. Fortunately, non-intrusive efforts by individuals, families, churches, and other associations to teach “Love thy neighbor as thyself” will not infringe on individual rights.

*We are concerned that, by exempting employers like religious societies, religious education institutions, and the Boy Scouts of America from various anti-discrimination requirements, SB296 may create further unequal treatment under the law, which may be contrary to our state constitution:

“All laws of a general nature shall have uniform operation” (Utah State Constitution, Article I, Section 24; see also US Constitution, 14th Amendment). Does this mean that it is OK for some to discriminate in a specific way, and it is wrong for others to discriminate in exactly the same way? We do not think this is the meaning of Article I, Section 24.

We think it is possible that the foundation belief behind this provision in our state constitution was a belief in the equality of men under the Laws of Nature and of Nature’s God: “We hold these truths to be self-evident, that all men are created equal. . .” (Declaration of Independence).

We certainly do not want to interfere with discriminatory hiring decisions by the Boy Scouts of America or by Brigham Young University. If, according to their faith, that is appropriate discrimination, then that should be their decision. But why should we treat “religious institutions” and the Boy Scouts of America different from other people (including business owners), partnerships, and associations that have faith? Is freedom of conscience and religious liberty only important to “religious institutions” and the Boy Scouts of America?

*We are also concerned that evidence and due process standards in existing anti-discrimination code may be inadequate. For instance, we are concerned about the following wording in Utah Code:

• “[I]f the director, presiding officer, commissioner, Appeals Board, or court finds reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur, the director, presiding officer, commissioner, Appeals Board, or court may order, as considered appropriate: (a) the respondent to cease any discriminatory housing practice; (b) actual damages, reasonable attorneys' fees and costs to the aggrieved person; and (c) any permanent or temporary injunction, temporary restraining order, or other appropriate order” (Utah Code Section 57-21-11(1)).
• Is “reasonable cause to believe” a good enough standard of evidence before this kind of administrative or judicial force kicks in? Or should the standard be raised to at least “a preponderance of the evidence”?
• If evidence and due process standards in existing anti-discrimination code are inadequate, then we should be nervous about expanding the scope of this code.

We would ask our representatives to give all due consideration to these concerns. And if they find that SB296 infringes on God-given rights, or otherwise compromises constitutional safeguards, then we would ask them to vote “no”.

And here are updates on some bills mentioned in earlier GrassRoots updates (past updates may be viewed at www.utahgrassroots.org ):

HB350, “Weapons on Public Transportation”, sponsored by Representative Thurston and Senator Bramble, would eliminate the prohibition of carrying a firearm on a bus, by deleting current language in Utah Code that “A person who boards a bus with a concealed dangerous weapon or firearm upon his person or effects is guilty of a third degree felony.”

HB350 passed the House 72-0 on March 3rd, and awaits consideration by the Senate Judiciary, Law Enforcement and Criminal Justice Committee. HB350 is currently scheduled as Item 6 on the agenda for that committee’s meeting that is scheduled to start at 7:30am today (Monday, March 9th).

GrassRoots still favors a “yes” vote on HB350.

SB164Substitute, “Access to Health Care Amendments”, sponsored by Senator Shiozawa and Representative Dunnigan, would be a large Medicaid Expansion. For additional details and commentary, please see our updates of February 23rd and March 2nd.

SB164Substitute passed the Senate 17-11 on February 25th, but failed the House Business and Labor Committee 4-9 on March 4th (hopefully this means that SB164Substitute is dead for this legislative session). (Interestingly, House sponsor Representative Dunnigan voted not to give SB164Substitute a favorable recommendation.)

GrassRoots still favors a “no” vote on SB164Substitute.

SB214, “Veterans Court”, sponsored by Senator Knudson and Representative Ray, would:

• “authorize” the Judicial Council to create veterans courts based on various criteria;
• authorize the court to seek federal funding to assist with the veterans courts; and
• provide for participation by the United States Department of Veterans Affairs Veterans Justice Outreach Program.

See GrassRoots update of March 2nd for additional details and commentary.

SB214 passed the Senate 25-0 on March 4th, and awaits consideration by the House Law Enforcement and Criminal Justice Committee. SB214 is currently scheduled as Item 4 on the agenda for that committee’s meeting that is scheduled to start at 4:10pm today (Monday, March 9th).

GrassRoots still favors a “no” vote on SB214.

SB256, “Concealed Firearm Amendments”, sponsored by Senator Hinkins, would provide an exemption for a person, who is 21 years of age or older and who may lawfully possess a firearm, from certain criminal provisions (Class B Misdemeanor) related to the carrying of an unencased, unloaded concealed firearm in places other than one’s own property. Essentially, SB256 appears to legalize concealed carry of unloaded firearms for those 21 and older, without the need for a permit.

SB256 passed the Senate Government Operations and Political Subdivisions Committee 4-1 on March 3rd, and awaits consideration by the full Senate.

GrassRoots still favors a “yes” vote on SB256.

If you have any questions about these bills, GrassRoots’ position on these bills, or related matters, please contact either of us or any other member of the Board of Utah GrassRoots.

Sincerely,

Steve Stromness
Board Member, Bill Review Coordinator, Utah GrassRoots
steven.stromness@gmail.com
435-637-5248

Don Guymon
Chairman, Utah GrassRoots
donguymon@gmail.com
801-574-9461

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