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On Religion: Waiting for a Judicial ‘Utah Compromise’ on Battles Between Religious Liberty, Gay Rights?

No doubt about it, someone will have to negotiate a ceasefire someday between the Sexual Revolution and traditional religious believers, said Justice Anthony Kennedy, just before he left the U.S. Supreme Court.

America now recognizes that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” he wrote, in the 2018 Masterpiece Cakeshop decision. “The laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

Kennedy then punted, adding: “The outcome of cases like this in other circumstances must await further elaboration in the courts.”

The high court addressed one set of those circumstances this week in its 6-3 ruling (.pdf here) that employers who fire LGBTQ workers violate Title VII of the Civil Rights Act, which banned discrimination based on race, color, religion, sex or national origin.

Once again, the court said religious liberty questions will have to wait. Thus, the First Amendment’s declaration that government “shall make no law … prohibiting the free exercise of religion” remains one of the most volatile flashpoints in American life, law and politics.

Writing for the majority, Justice Neil Gorsuch – President Donald Trump’s first high-court nominee – expressed concern for “preserving the promise of the free exercise of religion enshrined in our Constitution.” He noted that the Religious Freedom Restoration Act of 1993 “operates as a kind of super statute, displacing the normal operation of other federal laws.” Also, a 1972 amendment to Title VII added a strong religious employer exemption that allows faith groups to build institutions that defend their doctrines and traditions.

Nevertheless, wrote Gorsuch, how these various legal “doctrines protecting religious liberty interact with Title VII are questions for future cases too.”

In a minority opinion, Justice Samuel Alito predicted fights may continue over the right of religious schools to hire staff that affirm the doctrines that define these institutions – even after the court’s 9-0 ruling backing “ministerial exemptions” in the Hosanna-Tabor Evangelical Lutheran Church and School case in 2012.

“If a religious school teaches that sex outside marriage and sex reassignment procedures are immoral,” noted Alito, “the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment.”

One thing is clear – the U.S. Supreme Court will have to settle these kinds of conflicts, said Douglas Laycock of the University of Virginia Law School, who has defended both same-sex marriage and the religious-liberty rights of traditional faith groups. He was counsel of record for the Hosanna-Tabor school at the high court.

The court’s new ruling “will end all legislative bargaining over religious liberty in the gay-rights context,” he said, reached by email. “There is no longer a deal to be had in which Congress passes a gay-rights law with religious exemptions; the religious side has nothing left to offer.”

However, religious leaders can hope this latest ruling is the court’s first move toward some form of middle ground, argued David French, a Harvard Law School graduate who writes for The Dispatch. This could be a judicial version of the “Utah Compromise” legislation in 2015 – pro-LGBTQ decisions balanced with decisions backing exemptions that protect religious liberty.

“Unless I’m reading the tea leaves wrong (and I could be!), SCOTUS will likely expand the reach of the ministerial exemption – allowing religious institutions to functionally define which employees are exempt from nondiscrimination law,” French wrote on Twitter.

“A year from now, the jurisprudence could look largely like this – secular employers are fully subject to each element of Title VII while religious employers enjoy a broad ministerial exception and a more robust free exercise clause.”

That could happen, “but there are no sure things until they do it,” said Laycock. Again, everything is up to justices sitting in the middle of an evolving Supreme Court.

“A legislature can negotiate compromises and put gay rights and religious liberty in the same bill,” he said. “It is much harder for the court to do that. They have to decide the issues as they are presented in a case, usually one issue at a time.”

Terry Mattingly (tmatt.net) leads GetReligion.org and lives in Oak Ridge, Tenn. He is a senior fellow at the Overby Center at the University of Mississippi.

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