The Supreme Court is expected to issue a ruling in the coming days that could give a first taste of how its Conservative 6-3 majority will shape the future of LGBT rights.
The case known as Fulton v City of Philadelphia, Numbers 19-123, is a dispute over city policies that prohibit discrimination based on sexual orientation. Citing the policy, Philadelphia dropped a contract with a Roman Catholic foster home that said their beliefs did not allow same-sex couples to be certified for adoption. The agency, Catholic Social Services, filed a lawsuit alleging Philadelphia violated its First Amendment religious rights.
The dispute was fought in November and a decision is expected before the court’s term ends in late 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 statements on Tuesday, although it doesn’t say which ones will come in advance.
The upcoming decision could have far-reaching consequences beyond the 6,000 or so foster children in Philadelphia. Lawyers specializing in LGBT rights argued that a broad judgment in favor of the adoption agency could also open the door to legalizing discrimination in other areas where governments use private contractors to provide public services.
In a broader sense, the case could provide important clues as to the direction the court will take in future LGBT rights cases. Since the mid-1990s, the country’s Supreme Court has gradually expanded protection for gays and lesbians, largely under the leadership of former Judge Anthony Kennedy, who retired in 2018.
The nine-member court currently has six Republican appointments, including three nominated by ex-President Donald Trump.
“This will be an indication of how the court, as it is currently composed, will judge these LGBT civil rights cases,” said Marques Richeson, an associate at Squire Patton Boggs law firm who worked on an attorney’s letter on the case on behalf of Services Advocacy for GLBT elders.
“I definitely think it will set a precedent that will work in the future, either to our benefit or possibly to our disadvantage, within LGBT communities,” said Richeson.
Legal experts point out that Supreme Court decisions are often unpredictable and that there are a number of possible outcomes with more nuances than which side wins or loses.
Jennifer Pizer, the director of law and politics for Lambda Legal, the country’s largest LGBT civil rights group, said the court could potentially score a narrow victory for Catholic Social Services, only forcing Philadelphia to revise its contract management policy.
Such a result would still be worrying given the message it would send to LGBT children in particular, she said. And, she added, it might encourage more religious organizations to file lawsuits with similar arguments. That happened, she said, after the court won a narrow victory for a devout Christian baker who refused to bake a cake for a same-sex wedding in the 2018 Masterpiece Cakeshop case.
But a much worse possibility looms for LGBT activists. The Catholic Social Service has argued that the court should use the case to break a 30-year-old precedent that has upheld religiously neutral and universally valid laws. Two lower courts set the precedent Employment Division v. Smith, affirming Philadelphia’s non-discrimination policy.
“The worst-case scenario is that the court will turn decades of Supreme Court precedent on its head that freedom of religion is an important constitutional principle but cannot trump the equally important principle of non-discrimination,” said Janson Wu, the managing director of GLAD. an organization that defends the legal rights of LGBT people.
During the November arguments, the judges appeared to be more sympathetic to the Catholic Social Services than Philadelphia. Judge Brett Kavanaugh, believed to have occupied the ideological center of the court, said the city was “absolutist” and “extreme”. But the judges barely touched Smith, leaving observers to guess whether the precedent will hold.
Richeson said a broad ruling in favor of Catholic Social Services “could have serious implications, well beyond the foster family context.”
“I see it as a problem from cradle to serious,” said Richeson, saying that such a decision could allow discrimination against the most vulnerable populations in society – such as the elderly and the disabled – who are most in need of government services are.
“They rely on services like food delivery, meals on wheels, affordable housing, transportation and home nursing – all of these services and support are often provided by government contractors,” he added.
The Catholic Social Service, which has sued along with two foster mothers, has argued that the warnings from those advocating Philadelphia are exaggerated.
The organization has also claimed that Philadelphia’s non-discrimination policies are not neutral. In legal briefs, the adoption agency has indicated that it has never been approached by a same-sex couple looking for an adoption certificate, and if it had, it would have simply referred the couple to another group.
“As a Catholic agency, CSS cannot provide written confirmations for same-sex couples who contradict their religious teachings on marriage,” wrote Mark Rienzi, the agency’s lawyer, in a file. “The Mayor, City Council, Department of Human Services and other city officials have targeted CSS and tried to force it to change its religious practices in order to make such approvals.”
The tug-of-war between LGBT rights and religious freedom that is the case comes from the fact that the court appears to be increasing its deference to claims made by religious groups.
In its most recent tenure, the Supreme Court represented religious interests in three major cases, including discrimination lawsuits in religious schools, religious groups wanting to refuse contraception to their employees, and religious school taxpayers’ money. The court has also taken far-reaching protective measures for the religion in connection with the lifting of the restrictions imposed by the states to combat the Covid-19 pandemic.
Regardless of the outcome of the case, some proponents say the fact that the judges agreed to hear him signals a departure from his previous trend of expanding LGBT rights.
“In this case, just a few years ago, many of us would not have expected the claims of the Catholic Social Service to be taken seriously at all,” said Pizer. “It appears to be the result of the three recent changes in the composition of the Supreme Court to provide the votes for this case, determine the outcome of this case and reshape this body of law in profound and worrying ways.”
Still, Pizer said there is a chance for a surprise, despite the fact that the three most recent additions to the court have a conservative track record.
Occasionally, judges deviate from expectations. Eventually, Kennedy was appointed by former President Ronald Reagan. And Judge Neil Gorsuch, Trump’s first choice, drafted the last major court opinion in June of last year on expanding LGBT rights in a ruling banning discrimination against gay or transgender workers. Gorsuch was joined by Chief Justice John Roberts and the four liberals of the court.
Judge Brett Kavanaugh, Trump’s second appointee, disagreed with this opinion. And in the time since tradition, Judge Amy Coney Barrett, Trump’s third appointment, replaced former Judge Ruth Bader Ginsburg, who died in September. Importantly, in his opinion, Gorsuch left open the possibility that religious employers could be discriminated against, but said that such an issue was a matter for “future cases”.
Wu said the Supreme Court had “put LGBT rights on a positive track” over the past few decades.
“The LGBTQ community has created a social and legal norm according to which LGBTQ people should be treated fairly,” said Wu.
“We’re not there yet, but we’re moving in the right direction, starting with the Supreme Court’s ruling in the Romer case that LGBTQ people should be able to apply for protection from the government,” he added referred to the 1996 decision in Römer v. Evans.
“A loss in this case would be a major setback along the way,” he said.
