Coming Supreme Court decision in major LGBT rights case seen as bellwether of conservative court
S E E D E D C O N T E N T
The Supreme Court is expected to release a decision in the coming days that could provide the first glimpses of how its 6-3 conservative majority will shape the future of LGBT rights.
"This will be a bellwether for how the court, as it's currently comprised, will view these LGBT civil rights cases," said Marques Richeson, a partner at the law firm Squire Patton Boggs who worked on a friend-of-the-court brief in the case on behalf of Services and Advocacy for GLBT Elders.
The Supreme Court is expected to release a decision in the coming days that could provide the first glimpses of how its 6-3 conservative majority will shape the future of LGBT rights.
The case, known as Fulton v. City of Philadelphia, No. 19-123, is a fight over a city policy that bars discrimination based on sexual orientation. Citing the policy, Philadelphia dropped a contract with a Roman Catholic foster agency that said its beliefs didn't allow it to certify same-sex couples for adoption. The agency, Catholic Social Services, brought a lawsuit alleging that Philadelphia violated its First Amendment religious rights.
The dispute was argued in November and a decision is expected before the court's term wraps up at the end of June, which also happens to be Pride Month, a historic time of celebration in the LGBT community. The Supreme Court is expected to release its next opinions on Tuesday, though it does not say in advance which ones are coming.
The coming decision could have broad ramifications that stretch beyond the approximately 6,000 children in foster care in Philadelphia. Lawyers who specialize in LGBT rights have argued that a broad ruling in favor of the adoption agency could also open the door to legalizing discrimination in other spheres where governments hire private contractors to provide public services.
More broadly, the case could provide significant clues about the direction the court will take in future LGBT rights cases. Since the mid-1990s, the nation's top court has gradually expanded protections for gays and lesbians, largely under the leadership of former Justice Anthony Kennedy, who retired in 2018.
The nine-judge court currently has six Republican appointees, including three nominated by former President Donald Trump.
"This will be a bellwether for how the court, as it's currently comprised, will view these LGBT civil rights cases," said Marques Richeson, a partner at the law firm Squire Patton Boggs who worked on a friend-of-the-court brief in the case on behalf of Services and Advocacy for GLBT Elders.
"I definitely think that it's going to set a precedent that in the future either will work to our benefit, or potentially to our detriment, within LGBT communities," Richeson said.
Legal experts emphasize that Supreme Court decisions are often unpredictable, and that there are a range of possible outcomes with more nuance than which side wins or loses.
Jennifer Pizer, the law and policy director for Lambda Legal, the nation's largest LGBT civil rights group, said that it is possible that the court could deliver a narrow win for Catholic Social Services that does little more than force Philadelphia to retool its contract management policies.
Such an outcome would still be worrisome, she said, because of the message it would send, particularly to LGBT children. And, she added, it could encourage more faith-based agencies to bring lawsuits with similar arguments. That's what happened, she said, after the court delivered a narrow victory to a devout Christian baker who refused to bake a cake for a same-sex wedding in the 2018 case Masterpiece Cakeshop .
But for LGBT activists, there is a much worse possibility looming. Catholic Social Services has argued that the court should use the case to overturn a 30-year-old precedent that has upheld laws that are religiously neutral and generally applicable. Two lower courts cited the case establishing the precedent, Employment Division v. Smith, in upholding Philadelphia's nondiscrimination policy.
"The worst case scenario is that the court upends decades of Supreme Court precedent that says, while religious freedom is an important constitutional principle, it can't trump the equally important principle of nondiscrimination," said Janson Wu, the executive director of GLAD, an organization that defends LGBT legal rights.
During arguments in November, the justices seemed more sympathetic to arguments made by Catholic Social Services than Philadelphia. Justice Brett Kavanaugh, seen as occupying the court's ideological center, suggested that the city was being "absolutist" and "extreme." But the justices hardly touched on Smith, leaving observers to guess at whether the precedent will hold.
Richeson said that a broad ruling in favor of Catholic Social Services could have "grave ramifications spreading far beyond the context of foster care."
"I see it as a cradle to grave sort of issue," Richeson said, saying that such a decision could allow discrimination against society's most vulnerable populations — such as the elderly and the disabled — who rely the most on government services.
"They depend on services like food delivery, Meals on Wheels, affordable housing, transportation, in home nursing care — all of these services and support are often provided by government contractors," he added.
Catholic Social Services, which sued alongside two foster mothers, has argued that the warnings offered by those siding with Philadelphia are overblown.
The organization has also claimed that Philadelphia's nondiscrimination policy is not neutral. In legal briefs, the adoption agency has pointed out that it had never been approached by a same-sex couple seeking adoption certification, and if it had been, it simply would have referred the couple to another group.
"As a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage," Mark Rienzi, an attorney for the agency, wrote in a filing . "The mayor, city council, Department of Human Services, and other city officials have targeted CSS and attempted to coerce it into changing its religious practices in order to make such endorsements."
The tug-of-war between LGBT rights and religious freedom the case presents come as the court appears to be increasing its deference to claims by religious groups .
Last term, the top court sided with religious interests in three significant cases, involving discrimination suits at religious schools, religious groups seeking to deny contraceptive coverage to employees, and taxpayer funding for religious schools. The court has also adopted expansive protections for religion in the context of knocking down restrictions imposed by states to fight off the Covid-19 pandemic.
Regardless of the outcome of the case, some advocates say that the fact that the justices agreed to hear it signals a departure from its past trend of expanding LGBT rights.
"This case, many of us would not have expected the claims made by Catholic Social Services in this case to be taken seriously at all just a few years ago," Pizer said. "It appears to be the result of the three recent changes in Supreme Court membership to provide the votes to take this case, to decide the outcome of this case, and to reshape this body of law in profound and troubling ways."
Still, Pizer said that there's a possibility for a surprise, despite the fact that the three most recent additions to the court have conservative track records.
Occasionally, justices do veer from expectations. After all, Kennedy was appointed by former President Ronald Reagan. And Justice Neil Gorsuch, Trump's first pick, authored the court's last major opinion expanding LGBT rights , last June, in a decision that prohibited discrimination against gay or transgender workers. Gorsuch was joined by Chief Justice John Roberts and the court's four liberals.
Justice Brett Kavanaugh, Trump's second appointee, dissented from that opinion. And, in the time since it was handed down, Justice Amy Coney Barrett, Trump's third appointee, replaced former Justice Ruth Bader Ginsburg, who died in September. Importantly, Gorsuch left open the possibility in his opinion that religious employers could be allowed to discriminate, but said such a question was a matter for "future cases."
Wu said that, over the past few decades, the top court has moved LGBT rights along a "positive trajectory."
"The LGBTQ community has been building a societal and legal norm that LGBTQ people should be treated fairly," Wu said.
"We are not there yet, but we have been moving in the right direction, beginning with the Supreme Court's decision in the Romer case stating that LGBTQ individuals should be able to seek protections from the government," he added, referring to the 1996 decision in Romer v. Evans .
"A loss in this case would be a serious setback in that trajectory," he said.
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It seems to boil down to one question: Will the SCOTUS endorse discrimination or not?
Well, it's mostly conservative so.......probably.
But hopefully not.
While the Court is divided between members who are "Woke" and those who are "Slept", unfortunately those who are Slept are in the majority, thanks to Trump's court packing.
It'll be interesting to see how this plays out.
While I want the city to win this one, my fear is that if they do, it will be disastrous for children in need of adoption. Various Catholic adoption services find homes for a lot of kids and I doubt that other organizations - public or private - will be able to easily pick up the extra burden.
As to the religious argument, it strikes me as somewhat problematic when the Pope himself has said of homosexuals, “Who am I to judge?”
In such an event, how can a Catholic adoption agency judge a person to be an unfit parent simply based on the fact of them being LGBT? While the Supreme Court has said it will not weigh in on what constitutes a religion or religious belief, it has said in various cases that it expects professed beliefs to be sincere and held in good faith. Obviously, that is inherently vague and subject to interpretation, but when the leader of your religious organization says LGBT people should not be marginalized or judged, I don’t see how a Catholic adoption agency can justify doing exactly that.
In legal briefs, the adoption agency has pointed out that it had never been approached by a same-sex couple seeking adoption certification, and if it had been, it simply would have referred the couple to another group.
Those seeking to adopt can go to another agency. Just like same sex couples can patronize multiple shops, like bakeries and pizza stores.
Why should they have to when those businesses provide the very services they are looking for?
Technically it is not a "business", it is a charitable religious organization, likely non-profit status. However, if they accept money or payment via a contract with the City or other government entity, then they have opened themselves up to the non-discrimination policies of that government entity. If they aren't fully funded by the religious organization and therefore offering the services pursuant to their own religious policies, then why should they be surprised if their contract is severed as not being what the "customer" wants?
Seems to me, unless someone can convince me otherwise, they lost the right to make the rules regarding who can enjoy their services the minute they signed the City contract. I say that not being privy to the details of that Contract of course, so it is merely my opinion, admittedly only partially informed.
Having said that, I also concur with Tacos who asks above, given the Pope's public statements about LGBT persons, "how can a Catholic adoption agency judge a person to be an unfit parent simply based on the fact of them being LGBT?"
I know. I was lumping it with the other actual businesses for simplicity sake. But my question still stands.
It also depends on what kind of deal or contract they have with the city too. Plenty of legalities at play here.
Exactly. Like I said, there are many legalities probably at play here.
Given the Catholic church's view towards gays, it's not surprising old bigotries die hard.
Irrelevant! A business or agency that offers their services to some but not others is a discriminatory practice.
That's what it's coming to. Like I asked in my initial post, will the SCOTUS endorse discrimination or not?
If the court rule in favor of discriminatory practices, then it's discriminatory, plain and simple. How one feels about the ruling is irrelevant to that.
I believe that would be an incorrect, perhaps even illogical, conclusion or description of what the SCOTUS will be adjudicating in this case.
Catholic Social Services brought suit claiming the that City of Philadelphia severed a contract with them to provide adoption services and also violated their First Amendment religious rights. The decision will be focused specifically on whether the City violated the terms of their Contract with CSS, and did they violate their First Amendment rights? Certainly there are legal aspects to this like why the City is only now dropping a Contract with a non-profit organization that has been in place for years. What did the Contract say about the religious entities' rights to run the agency in keeping with their religious principles? Legal questions upon which legal decisions will be rendered, none of which will endorse anything other than a proper remedy under the law.
A decision on those matters either way does not constitute an "endorsement of discrimination". That is merely an opinion on how the actual decision will be viewed by those who wish to paint it that way.
I will be interested to see how they rule on this, but see no reason for rash speculation as to the outcome, nor how it should be characterized by political pundits either way.
I should be! I can certainly recognize something as discriminatory.
Prejudice or unfair treatment of one group over another. Case in point related to the article: discrimination by an adoption agency over gays. Even if the court rules it's ok, it's still discrimination. Not a difficult concept.
This is what will be key to the case.
Refusing to adopt to gays simply on the basis that an adopting couple are gay is discrimination, plain and simple. The legalities behind the city & adoption agency will be at play in the case and a ruling will probably be based on the arguments built around that. But regardless, if the court sides with the adoption agency, it is in effect giving tacit approval towards discrimination, even if that's not the intent.
Mine is fairly straightforward and simple. There's nothing complicated about discrimination.
I never claimed it to be otherwise.
yes
elieve that would be an incorrect, perhaps even illogical, conclusion or description of what the SCOTUS will be adjudicating in this case.
Yes, this will almost certainly be a narrow, technical decision that hinges on the exact legal relationship between the City and CCS, the specific process the City uses to assign foster parents and evidence, if any, of discriminatory animus by the City towards the CCS.
But that’s the point. The Court is NOT going to rule it’s OK. That is not the issue they will be adjudicating. It will be primarily a decision regarding a contractual matter and secondarily whether any First Amendment rights were violated. That is all. There will be no decision as to whether the way CSS conducts their business is OK or not OK.
That decision would require a separate lawsuit against CSS on that specific matter. To me, THAT is the concept that is not difficult to grasp.
Perhaps you would better understand if your sentence were phrased this way:
"Those seeking to adopt can go to another agency. Just like black people can patronize multiple shops, like bakeries and pizza stores."
The issue wasn't that black people had no place to eat, it was that white's only restaurants were discriminating based on the color of their skin. In this case the Catholic Church is discriminating against people because of their sexual orientation which is now widely becoming a protected class just like race was over half a century ago. If you sell a product or offer a service to everyone and are open to the public then you must abide by the federal, State and local accommodation laws. The Church is completely within their rights to say they won't allow babies to be adopted by parents who can't show they have the ability and or resources to adopt a child, but they can't deny the adoptions based on the race or sexual orientation of the adopting couple. I believe even a conservative court will rule in the favor of the law without taking in personal religious feelings or beliefs.
I'd like to think that too. But sometimes, I am not so sure. After all, some people become quite irrational when it comes to religious beliefs.
It was a conservatives majority court that legalized gay marriage. I'd like to think that actual justices who reach the highest court in our country still cherish the law and chose that over petty personal religious prejudices. We might see two or three of the conservatives, perhaps Trump newest rush job appointees side with their prejudice, but I don't see the majority of the conservatives choosing to be petty bigots in this case.
Yes. But now it's on the flip side with a conservative majority court.
I'd like to think that too. But I'm not convinced they can be.
Kavanaugh doesn't have much on record with LGBT rights. He could go either way. But I tend to think he leans a little more towards being anti-LGBT. Gorsuch seems to be more LGBT friendly. So there's a fair chance he'll vote that way in this case. Amy Barret has said she can keep her religious views separate from her judicial views. So we will see. I predict Gorsuch will be the swing vote.
When Obergefell v. Hodges was decided in 2015 it was already a slim majority conservative court with the conservative Reagan nominated Justice Kennedy along with the four liberals justices Ginsburg, Breyer, Sotomayor and Kagan who ruled in favor of gay marriage. So without Kennedy we shall see if the new conservative majority will kick equality in the teeth or not.
I'm hopeful, but I agree, without a sane conservative like Kennedy on the court the likelihood they'll do the right thing is in question.
That would be hilarious if Kavanaugh came out as bi.
He could be the new Kennedy, but we will see.
We shall see. It seems at times she can't be trusted to keep her word, but so far she hasn't made any major rulings that prove her a liar, but that just keeps the Trump sycophants panting at her pant leg hoping she empowers them and their sick vile fucked up screed.