Part II | Outline

Category A | Frameworks

Topic 3 | Fairness for all

“Fairness for all” is a principled approach for seeking the mutual vindication of multiple important rights and interests, such as religious freedom and nondiscrimination on the basis of sexual orientation or gender identity (SOGI). The basic idea is that, before attempting to balance or trade off rights against one another, we should look for ways to simultaneously expand protections for rights that are, or seem to be, in conflict, or to limit each in narrow and principled ways.

Fairness for all approach  

• Fairness for all is a principled approach to resolving tensions between seemingly competing interests. Grounded in the concept of human dignity, it seeks to protect LGBTQ individuals from discrimination and religious individuals and institutions from being compelled to violate their deeply held beliefs.

Fairness for all as a legislative effort  

• In the United States at the state level,

  • Utah passed legislation in 2015, known as the “Utah Compromise, which implemented the fairness for all approach. The law makes sexual orientation and gender identity protected classes in housing and employment while ensuring religious freedom protections in employment and other contexts. The Church of Jesus Christ of Latter-day Saints was among the religious organizations that supported passage of this legislation.
  • The Church of Jesus Christ of Latter-day Saints also supported a 2022 religious freedom and nondiscrimination bill at the state level in Arizona.

• In the United States at the federal level,

  • The Church of Jesus Christ of Latter-day Saints supported passage of the Respect for Marriage Act (2022), which codified the right to same-sex marriage while protecting the right of religious institutions and individuals to refuse “to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration” of a same-sex marriage.
  • The Church of Jesus Christ of Latter-day Saints has also supported the Fairness for All Act (2019), which has yet to pass Congress.

Critiques and responses  

• Critiques of the Fairness for All Act—from both the political right and political left— exemplify criticisms of the fairness for all approach more generally. Several specific criticisms are discussed herein, most of which fundamentally stem from an unwillingness to compromise on absolute religious freedom or absolute LGBTQ rights protection.

• Illustrative responses to the various criticisms of the “fairness for all” approach include the following:

  • Out of fairness, it is possible to protect those who hold and act on different beliefs, even though we do not agree with them.
  • A winner-takes-all approach is not serving us. Litigation does not result in a satisfactory balancing of both sides’ interests; instead, it tends to fan the flames of division.
  • Not all religious freedom interests carry the same value and weight, and neither do all LGBTQ interests. A fairness for all approach seeks to identify the interests most important to both groups.