Waiting for a judicial 'Utah Compromise' on battles between religious liberty and 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 circumstance 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.

PROVO, Utah -- From the start, the "Utah compromise" on religious liberty and key gay-rights issues had that special sex appeal that made news.

Journalists knew it was impossible to produce this 2015 Utah bill without the cooperation of leaders in the Church of Jesus Christ of Latter-day Saints, and Mormons in the Republican-dominated state legislature. Powerful LGBT leaders were in these negotiations, as well, and endorsed the final product.

The key -- for politicians using Utah as a template -- was that both sides made important compromises, while defending their core beliefs and goals, said the church's top lawyer, at a recent Brigham Young University conference on "Religious Freedom in an Era of Social Change."

"Some may be shocked to hear this, but not all religious freedoms are equally important," said Elder Lance B. Wickman, general counsel for the LDS church. "Defenders of religious freedom have to decide what is closer to the essential core of religious freedom and what is more peripheral. To do otherwise risks weakening our defense of what is essential.

"If everything that could even loosely be considered 'religious' is treated as equally important, then effectively nothing religious is important."

Thus, the "Utah compromise" banned LGBT discrimination in housing and employment, while including explicit protections for religious organizations and their institutions, along with "carve-out" clauses protecting the beliefs of many individuals. County clerks, for example, are not required to approve gay marriages, but officials had to make other options easily available.