Churches hold on­line, in-per­son ser­vices

Times Standard (Eureka) - - FRONT PAGE - Terry Mattingly Terry Mattingly leads GetReli­ and lives in Oak Ridge, Ten­nessee. He is a se­nior fel­low at the Overby Cen­ter at the Univer­sity of Mis­sis­sippi.

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 that em­ploy­ers who fire LGBTQ work­ers vi­o­late Ti­tle VII of the Civil Rights Act, which bans 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 of 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 the 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 gayrights 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 the 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.”

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