Supreme Court docket choice in main LGBT rights case seen as bellwether
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.