Are we headed toward a federal version of the Utah Compromise on LGBTQ rights?

by Kelsey Dallas in "Deseret News"

SALT LAKE CITY — Opponents of the Supreme Court’s 6-3 ruling this week in favor of gay and transgender workers accuse justices in the majority of acting like Congress.

Regardless of whether they share that sentiment, legal experts agree the court’s decision disrupts policymakers’ ongoing work.

Congress is currently considering two bills that would add sexual orientation- and gender identity-based protections to federal civil rights law. The Equality Act, which passed the House in May 2019, would do so without expanding faith-based exemptions. The Fairness for All Act, which was introduced in December, seeks to pair new rights for the LGBTQ community with new rights for people of faith.

The Supreme Court’s decision accomplishes only a small part of what these bills aim to do, but it will drastically alter the surrounding debate, said Douglas Laycock, a professor of law and religious studies at the University of Virginia.

At least in the short term, supporters of the Equality Act have momentum on their side, while those advocating for a more balanced approach to LGBTQ and religious rights will struggle to have their message heard.

However, the justices’ comments in their landmark decision left at least some Fairness for All advocates feeling hopeful. The Supreme Court seems interested in protecting both members of the LGBTQ community and people of faith, as Utah legislators did when they adjusted state civil rights law in 2015, said Tim Schultz, who is president of the 1st Amendment Partnership and part of the Fairness for All Coalition.

“We very well could be headed for what I would call a Fairness for All future,” he said.

Still, Schultz is not going to sit back and wait for future Supreme Court rulings. The legislative process is a better path toward compromise and bold solutions, which are what’s needed in battles between LGBTQ and religious rights right now, he said.

“I would prefer that more decisions be made by elected branches because I believe you eliminate a lot of the pain and uncertainty of litigation that way,” Schultz said.

Others argued that productive policy discussions aren’t possible for the time being. This week’s Supreme Court ruling gives both LGBTQ rights and religious freedom advocates new reasons to focus on lawsuits rather than chasing votes, Laycock wrote in an email.

“I don’t see much room for future legislative bargaining,” he said.

Legal distractions

Schultz and others seeking to resolve conflict between LGBTQ rights and religious freedom through legislation are used to lawsuits getting in the way of their work.

For years, several key advocacy organizations have steered clear of the bargaining table as they awaited the Supreme Court’s next move, Schultz said. As debates over the Equality and Fairness for All Acts ramped up last year, many people remained focused on the case involving gay and transgender workers.

“Until the outcome was known, they were not prioritizing legislative solutions. They were prioritizing litigative solutions,” Schultz said.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what (civil rights law) forbids,” wrote Justice Neil Gorsuch in the majority opinion.

Although the LGBTQ workers’ case is over, wait-and-see attitudes aren’t going anywhere, Laycock said. Gay rights advocates now have a clear path to additional victories, and people of faith also have reason to hope for future legal relief.

“The gay rights side has what it most needs,” he said. Because the Supreme Court embraced a broad definition of sex discrimination, “they can just litigate the sex discrimination provisions of (other federal) statutes.”

In other words, any civil rights law that prohibits sex discrimination will likely soon cover members of the LGBTQ community.

Religious freedom advocates, on the other hand, can take comfort knowing that justices seem to be aware of the conflict their ruling will create and very open to protecting people of faith in the future.

The court needs to ensure that religious businesses and institutions don’t lose the ability to operate according to their sincerely held beliefs, Gorsuch wrote in the majority opinion.

“We are … deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society,” he said.

As soon as later this month, the court could make it possible for religious organizations to exempt many of their employment decisions from nondiscrimination rules.

And next term, in a case involving faith-based adoption agencies, justices may overturn an old ruling that made it difficult for people of faith to use the First Amendment to defend themselves.

“I am optimistic that … religious institutions will be protected,” Laycock said.

If all of these things happen, the court will create a legal landscape that’s similar to what supporters of the Fairness for All Act are pursuing. LGBTQ rights advocates will gain civil rights protections, and religious institutions will be able, in many circumstances, to avoid violating their beliefs.

Some legal experts compared those potential developments to the Utah Compromise, highlighting the state’s efforts to balance LGBTQ and religious rights when it expanded housing and hiring nondiscrimination protections in 2015.

“The more I think about the trajectory of the case law, the more I think (the Supreme Court) will reach the jurisprudential equivalent of a version of the Utah Compromise,” tweeted David French, the author of a forthcoming book on political polarization, on Monday.

Limits of litigation

Although Schultz is a fan of the Fairness for All approach, he’d prefer to see it become law through legislative action. Relying on court rulings is both riskier and more painful for people involved, he said.

With lawsuits, “there’s a lot of weeping and gnashing of teeth,” he said. By comparison, legislative bargaining enables everyone to feel “relatively good.”

Rep. Chris Stewart, R-Utah, who sponsors the Fairness for All Act, had a similar reaction when asked about the possibility of the Supreme Court capturing the spirit of his bill in future rulings.

“I support the expansion of federal protections for the LGBT community. The recent Supreme Court decision left some important questions unanswered, particularly when it comes to religious freedoms. It is the job of the legislature to strike a balanced approach that ensures safeguards for all Americans. I believe my bill, Fairness for All, does exactly that,” he said in a statement to the Deseret News.

The policy process allows for more complete solutions, Schultz said. The Supreme Court can only address small segments of the clash between LGBTQ rights and religious freedom at a time.

As Laycock noted, various courts will likely soon be asked to rule on other civil rights laws that mention sex discrimination. But some of the statutes addressed in the Equality and Fairness for All Acts don’t include that phrase.

For example, the federal law that governs places of public accommodation does not ban discrimination on the basis of sex, Schultz said. If gay rights advocates want to expand who that statute protects and what businesses must abide by it, they’ll need to go to Congress for help.

“There’s no text to put before the court to interpret that would enable a similar outcome on public accommodations” as we saw on employment, he said.

Many Equality Act supporters acknowledged this reality in their reactions to Monday’s ruling. Leaders from the ACLU, lawmakers and others paired their praise for the decision with calls for Congress to get to work.

“We need to recognize how much work remains to be done,” said Rep. David N. Cicilline, D-Rhode Island, who sponsors the Equality Act, in a statement. “In the wake of this momentous decision, (Sen. Mitch McConnell) should finally allow the Senate to vote on the Equality Act.”

However, awareness of the limits of a litigation-focused approach to change doesn’t necessarily clear a path for legislative compromise. LGBTQ rights advocates have the upper hand right now in the legal system, so they’re unlikely to concede to people of faith’s requests, Laycock said.

“They have no reason to concede even the tiniest slice of (a religious) exemption beyond what the court finds in existing law,” he said.

Similarly, many religious freedom advocates remain dead set against even the Fairness for All approach. If you believe same-sex marriage or transgenderism is sinful, adding sexual orientation- or gender identity-based protections to the law can seem wrong, Schultz said.

“Many social conservatives think that protecting LGBTQ people from discrimination in the law is a kind of sacrilege,” he said.

This year’s election is also a major obstacle to progress on both the Equality and Fairness for All Acts, Schultz said. A shift in the balance of power in the Senate or White House would alter what types of legislative outcomes are feasible moving forward.

“How easy or rough the sledding is for any legislation advancing LGBTQ rights comes down to what the Senate looks like,” he said.

Despite being able to list several reasons why gay rights and religious freedom advocates could benefit from dragging their feet on policy action, Schultz said he’ll continue to argue for more engagement with the Equality and Fairness for All Acts.

The country will be better off if Congress and other community leaders put more faith in their ability to chart the right path forward than in expected election results or court rulings, he said, adding that “people’s prognostications of total victory are consistently proven wrong.”