Supreme Court to hear major LGBT rights case day after election


Moof - Geekette
Jul 15, 2016
Supreme Court, with Justice Barrett, to hear major LGBT rights case day after election


Judge Amy Coney Barrett, U.S. President Donald Trump’s nominee to the Supreme Court

The Supreme Court is set to hear a case concerning the rights of gay and lesbian Americans on Wednesday morning in a dispute that advocates are warning could pierce holes in the nation’s anti-discrimination laws.

Arguments, which will take place just a day after the presidential election, will mark the first major fight to come before Justice Amy Coney Barrett, who was sworn in a week ago.

Religious rights activists are pushing for the court to use the case, Fulton v. City of Philadelphia, to overturn a 30-year-old precedent that has for decades mediated the balance between freedom of conscience and the rights of minority groups.

Doing so could effectively reverse the court’s trend in recent years of advancing protections for LGBT people, civil rights advocates warn. The case could also weaken laws protecting other groups, including Jews, Muslims and Mormons.

The case concerns a Roman Catholic adoption agency in Philadelphia that claims that it can’t match foster children with same-sex households without violating its religious beliefs.

After learning about the policy in 2018, Philadelphia refused to refer the group new foster children, citing a city law that prohibits discrimination on the basis of sexual orientation. The city added language to its 2019 contracts specifically prohibiting such discrimination against potential foster parents.

The group, Catholic Social Services, is suing to defend its ability to refuse to work with same-sex households. In court papers, the group has argued that Philadelphia’s moves unlawfully targeted its right to exercise its religion, which is protected under the First Amendment.

Philadelphia, on the other hand, has said it is entitled to enforce anti-discrimination policies in order to protect LGBT residents. The city says it is not hostile to religion, noting that its policies apply evenly to religious and secular government contractors.

The 3rd U.S. Circuit Court of Appeals sided with Philadelphia in a unanimous decision in April 2019. Circuit Judge Thomas Ambro, writing for the court, said CSS failed to show that the city was motivated by anything other than “sincere opposition to discrimination on the basis of sexual orientation.”

The Third Circuit ruling relied heavily on the 1990 Supreme Court precedent known as Employment Division v. Smith. The ruling, authored by the late conservative Justice Antonin Scalia, held that laws that burden religious exercise are typically permissible as long as they are generally applicable and do not target religion.

In its appeal, Catholic Social Services has asked justices to overturn Smith and implement a new standard.

“Catholic Social Services stands to be excluded from foster care, not because it broke any law, but because Philadelphia disagrees with its religious practices regarding marriage,” an attorney for CSS, Mark Rienzi, told the justices in a filing.

Philadelphia and two nonprofits that are challenging CSS in the case, Support Center for Child Advocates and Philadelphia Family Pride, argue that any standard that provides the agency the constitutional right to discriminate against same-sex couples would have broad ramifications.

“It would mean governments’ hands would be tied and they would not be able to enforce any anti-discrimination laws,” according to Leslie Cooper, an ACLU attorney representing the nonprofits.

“The court has in a number of cases recognized that LGBT people must be treated with the same dignity and respect as others,” Cooper said.

She said that in this case, a win for CSS “would essentially give anyone who objects to LGBT people and cites a religious basis for that the right to opt out of all those protections that achieved equal treatment for the LGBT community.”

Lori Windham, who will be arguing in court on Wednesday for CSS, said those objections are exaggerated.

“It’s completely overblown. Catholic Social Services has been partnering with women of color for decades to service a diverse population,” Windham said. “They are asking to continue to do that.”

While Smith has been on the books for three decades, there is good reason to suspect that the top court, now with a 6-3 majority, may overturn it. Just last year, four of the court’s conservatives, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, suggested obliquely they were open to doing so.

With Barrett on the bench, the court, already friendly to religion, is expected to become more so. But that doesn’t necessarily mean she will vote to overturn Smith.

“She clerked for Justice Scalia. Will she, in the first week or so of her time on the court, be running toward overturning a three-decade-old precedent written by her old boss?” asked David Flugman a partner at the law firm Selendy & Gay with experience litigating high-profile civil rights cases.

But Flugman added that despite that nuance, Barrett’s addition to the court likely added to the possibility of a sweeping ruling.

A win for CSS could take several possible forms. Katherine Franke, faculty director of the Law, Rights, and Religion Project at Columbia University, said it was possible the court could overturn Smith without explicitly crafting a new standard.

But based on recent cases in which the court has interpreted the federal Religious Freedom Restoration Act, Franke said it was more likely the court would create an higher standard for reviewing laws that affect religion than existed even before Smith was decided in 1990.

“Many of us in the business call this religious liberty on steroids,” she said.

Flugman said the tension between religious freedom and LGBT equality at the heart of the case is the “fundamental issue in the LGBT rights space right now.”

“The real world consequences of this could be really, really, really important to people,” Flugman said. “From denial of health care, to exclusion from schools, or refusing to serve people in restaurants or not accommodating them in bed and breakfasts.”

The court confronted a situation along those lines in the 2018 case known as Masterpiece Cakeshop, in which a Christian baker refused to make a wedding cake for a same-sex couple. The court sided with the baker, but did so on such narrow grounds that the ruling didn’t apply to most other similar cases.

The Masterpiece decision, though just a few years old, may effectively be from another era. It was written by Justice Anthony Kennedy, the chief defender of LGBT rights on the Supreme Court, just weeks before he retired.

With Kennedy’s departure, Franke said, the court embarked on a new phase in its religion cases, in which religious rights started to be elevated above all others.

“Justice Kennedy saw all the rights secured in the Constitution in a delicate balance with one another, where this current majority sees some rights as more fundamental than others,” Franke said. “We are beginning to see a sort of tiering of rights, where some are top tier rights, and others are middle tier rights.”

The conflict between those “top tier” rights — religion and gun rights, among others — and “middle tier” rights was on display last term, Franke said.

In rulings issued in June and July, the justices shielded religious schools from discrimination lawsuits brought by teachers, allowed religious employers to deny their workers access to free contraceptive coverage, and paved the way for religious schools to receive taxpayer dollars.

But the justices also upset religious conservatives by ruling, in the case Bostock v. Clayton County, that Title 7 of the Civil Rights Act protected gay and transgender workers from being fired on the basis of their sexual orientation or gender identity.

Franke noted that the cases favoring religion were written in soaring language, while Gorsuch’s opinion defending gay and transgender workers was workmanlike — and left open the possibility that religious employers could claim an exemption from Title 7.

“I see that when these are going to come up against each other, the deep normative reasoning of the religious liberty cases will just overpower the mechanical reasoning of the equality cases or the reproductive rights cases,” Franke said.

Mary Bonauto, an attorney at GLBTQ Legal Advocates & Defender, wrote in a filing submitted to the justices that Bostock and the court’s previous cases had “profound significance for LGBTQ people’s ability to sustain themselves and their families and to participate in the economic life of our nation.”

Fulton, she wrote, puts that “incipient equal citizenship at serious risk.”

A decision in the case is expected by the end of June. The case is Fulton v. City of Philadelphia, No. 19-123.
Supreme Court leans in favor of Catholic adoption agency that won’t work with LGBT couples


The Supreme Court’s conservative majority on Wednesday seemed prepared to rule in favor of a Roman Catholic adoption agency in Philadelphia that argued that it is entitled to discriminate against potential foster parents on the basis of sexual orientation.

Arguments in the case, known as Fulton v. City of Philadelphia, No. 19-123, concluded around 12 p.m. ET, as the votes from the previous night’s election between President Donald Trump and former Vice President Joe Biden continued to be tabulated.

The case was the first major dispute to come before Justice Amy Coney Barrett, who was confirmed to the court late last month. Barrett’s views on LGBT rights and religion came under heavy scrutiny during her Senate confirmation process.

Trump suggested early Wednesday morning that he would challenge the results of the election at the Supreme Court, though the topic of the 2020 race was not broached during the course of two hours of arguments. NBC News has not yet called a winner in the presidential contest.

The adoption agency case arose after the city of Philadelphia learned in 2018 that Catholic Social Services, a foster care services provider affiliated with the Roman Catholic Church, would not certify same-sex couples as suitable parents for children in the city’s foster care system.

After Philadelphia learned about CSS’ policy, the city stopped referring the group new children, citing a city law prohibiting sexual orientation discrimination, and updated its 2019 contract with foster care services providers to explicitly forbid such discrimination against potential parents.

Catholic Social Services argues that Philadelphia’s exclusion of it from the city’s foster care system amounts to religious discrimination, in violation of the First Amendment’s protections for religious exercise.

Two lower courts sided with Philadelphia, citing the 1990 Supreme Court precedent known as Employment Division v. Smith, which permits laws that affect religion as long as they are neutral and generally applied. CSS asked the court to overturn Smith, which was authored by the late conservative Justice Antonin Scalia.

Arguments featured a familiar clash between the court’s conservatives, who now occupy six of the nine seats on the bench and have proven deferential to religious interests, and its liberals, who are typically more protective of the rights of sexual minorities.

“Coming into oral arguments, I might have said the court would side with the adoption agency either six to three or five to four,” said Elizabeth Sepper, a law professor at the University of Texas at Austin who studies religious liberty and equality. Based on arguments, she said, “we can count to five pretty clearly.”

Sepper said that the “foundational disagreement” raised during arguments was whether the court will see CSS as running a government program or as the recipient of a license to provide a service. Religious groups typically have little leeway to shape government programs that they object to.

“I was listening closely as to whether there would be hints as to reversal of Smith, and Smith just did not come up all that much in oral argument,” Sepper said. “They just wanted to go round and round as to what this program is, whether it’s a government program or regulation.”

The court’s liberal wing, which includes Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, seemed to latch onto arguments made by Neal Katyal, the attorney for Philadelphia, that the stakes of the case extended to virtually all government services.

“I don’t think the framing of this as religion versus same-sex equality is the right one,” Katyal told the justices, saying it could more aptly be described as “religion versus religion.”

Katyal said that if the court allows CSS to claim an exemption to Philadelphia’s nondiscrimination law, it would “radiate far beyond foster care.” He said such a ruling would allow private contractors to refuse to provide services to religious groups from “Buddhist to Baptist” if those contractors cite their own religious convictions.

Jeffrey Fisher, who represented two nonprofits siding with Philadelphia, suggested that the rule that CSS was pushing for could allow police officers to decline to enforce certain laws if they cite religious reasons.

But the court’s conservatives seemed to think that Philadelphia had an ulterior motive and was not being respectful of CSS’ religious beliefs. Justice Brett Kavanaugh, who was appointed by Trump, told Katyal it appeared Philadelphia was “looking for a fight” and “created a clash.”

“If we are honest about what is really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” said Justice Samuel Alito, an appointee of President George W. Bush.

“It’s the fact the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage,” Alito said.

Barrett suggested that she viewed Philadelphia as overreaching.

She asked Katyal whether a state could take over hospitals and force the doctors to perform abortions.

Katyal responded that the reason Barrett’s hypothetical sounded so bad was the premise that a state could take over hospitals in the first place, which he suggested was not analogous to Philadelphia’s role in the foster care system, and raised distinct problems.

Both the liberal justices and the conservatives suggested that the other side was making the case harder than it needed to be.

Alito and Kavanaugh repeatedly mentioned that no same-sex couple had ever approached CSS, and that, if they had, the group would have simply referred them to another one of the city’s many agencies.

“I fully appreciate the stigmatic harm,” Kavanaugh said. “But we need to find a balance that also respects religious beliefs.”

Kavanaugh called Philadelphia’s position “absolutist” and “extreme” and said it would require the court to “go back on the promise of respect for religious believers” that Justice Anthony Kennedy had included in the court’s landmark 2015 ruling legalizing same-sex marriage, Obergefell v. Hodges.

On the other side, Breyer said that Philadelphia had agreed to allow CSS to note its objections to same-sex couples, as long as it did not refuse to work with them.

“What’s the problem? I still don’t quite see it,” Breyer asked of Lori Windham, who argued on behalf of CSS.

“They say they are imposing a requirement that does not interfere with your — they can’t figure out, how does it interfere?”

Windham said that even if CSS were to “tag a disclaimer” on its forms related to same-sex couples, it would still require the group to “evaluate, assess, and approve” of relationships that go against its religious beliefs.

Hashim Mooppan, a Justice Department attorney who argued on behalf of the U.S. in favor of CSS, said that Philadelphia’s nondiscrimination policy targeted religion because it provided exceptions for some secular purposes, but did not provide an exemption to CSS.

“The city both requires, tolerates and itself engages in the consideration of protected traits when certifying and placing foster children,” Mooppan said, noting that a potential foster parent’s disability status or race could sometimes be considered.

Katyal said that he could find only one instance of Philadelphia considering the race of potential foster parents. The city, he said, decided not to place a foster child who had used a racial slur in the home of a family of that race.

Several of the justices pressed Windham and Mooppan to explain whether CSS’ position would enable religious groups to discriminate on the basis of race, such as by rejecting interracial couples. The attorneys said that it would not, though their explanations did not seem to satisfy the court’s Democratic appointees.

CSS sued alongside two foster moms, Sharonell Fulton and Toni Simms-Busch. Attorneys for the women provided statements on their behalf after arguments concluded.

Fulton said that as “a single woman of color, I’ve learned a thing or two about discrimination over the years— but I’ve never experienced the vindictive religious discrimination the City’s politicians have expressed toward my faith.”

Simms-Busch said she was “grateful the Justices took our arguments seriously and seemed to understand that foster parents like me just want to provide loving homes for children.”

Marcel Pratt, City Solicitor of Philadelphia, said in a statement that Philadelphia “proudly respects and protects all of our residents’ religious freedoms, a commitment that we hold dear. But those freedoms do not allow contractors performing a City service to choose which residents they will serve based on their sexual orientation.”

“We appreciated the opportunity to present our case to the Court today. The Court asked hard questions of both sides, and we are grateful for them. We look forward to the Court’s resolution of this important case,” Pratt added.

A decision in the case is expected by the end of June.
barret's own christian group calls on her to recuse herself in upcoming gay rights case saying she's too biased.

"The former members are part of a network of 'survivors' of the controversial charismatic group who say Barrett’s 'lifelong and continued' membership in the People of Praise make her too biased to fairly adjudicate an upcoming case that will decide whether private business owners have a right to decline services to potential clients based on their sexual orientation," reported Stephanie Kirchgaessner. "They point to Barrett’s former role on the board of Trinity Schools Inc, a private group of Christian schools that is affiliated with the People of Praise and, in effect, barred admission to children of same-sex parents from attending the school."
Barrett will do her best to impose a U.S. version of Sharia Law. She's just a political hack. The Republican Party base has become almost indistinguishable from Islamic fundamentalists. Both the Taliban and the Republican Party are acting as assertively as possible to control women (a majority group) as well as minorities of all types, but the next generation will refuse to go along with that. It's already happening in Iran.

As Leonard Cohen so insightfully observed, "Democracy is coming to the U.S.A.". The next generation is blowing off Fox News and every other network for that matter. The internet is responsible for a lot of cults and conspiracy theorists consolidating their power, but it is also responsible for a lot of people expressing their true selves and talking about all the BS coming from the right-wing.

Republican Sharia law is already failing. The Republican base is just a bunch of scared people being manipulated for votes by billionaires. Republican Sharia Law will die, because it's so oppressive.
None of this is a U.S. version of the shari'a. If U.S. conservatives have any template, it is a fundamentalist Christian one.

We can talk about U.S. politics without dragging down Islam or questions of religious freedoms/UK councils into this (which is what UK alarmists over "Sharia Law" cry out about-- the shari'a councils that assist Muslims with legal matters). This reads as ignorant to me, of Islam in particular. Especially when the U.S. has made questionable international decisions in dealing with Islamic nations, let's put it that way.

I use "ignorant" not to try to insult you, but that's the best word I can use to say what I mean here. There is a tone of hatred toward Muslims out of ignorance, and for no good reason anyway. Because we're talking about Republicans!
Nahhh. No hatred of Muslims in general, and no hatred of Christians in general. Just a major criticism of members of each religion who try to control others by imposing their religious doctrine on government policies and laws.

I've lived in both predominantly Christian and predominantly Islamic cultures, and I've criticized the most controlling segments of each religion. Conversely, I have met Christians and Muslims who embody the best aspects of each religion by expressing their beliefs by setting a personal example rather than imposing their beliefs by controlling other people.