This Supreme Court case could fundamentally alter LGBTQ+ rights — and not in a good way

A local dispute over foster care services offers conservative justices a chance to roll back discrimination laws

By Jon Skolnik

Staff Writer

Published June 9, 2021 5:40AM (EDT)

Gavel On Rainbow Flag (Getty Images)
Gavel On Rainbow Flag (Getty Images)

A relatively obscure Supreme Court case heard last year could fundamentally alter the landscape of LGBTQ+ rights and anti-discrimination law — and given the court's current conservative supermajority, many community advocates fear the worst. The case, Fulton v. City of Philadelphia, arose last year from a civil suit involving Catholic Social Services (CSS), an agency with a history of denying services to same-sex couples. The city of Philadelphia suspended its private contract with CSS to manage foster care services, prompting the lawsuit. 

Though the case has a relatively narrow focus — a fact the court may use to deliver a tightly focused ruling later this month — it could also have far-reaching consequences for government contractors and even private businesses, according to CNBC. The court's decision is expected to paint a clearer picture for the future of LGBTQ+ issues at the federal level — an area of significant concern for LGBTQ+ advocates following former President Trump's three conservative appointments. 

What makes the Fulton case unusual is the dearth of legal precedents that might help predict how the court will rule. "There really are no cases at the Supreme Court level that are close to this one," said Douglas Laycock, a professor at the University of Virginia School of Law. "All the precedents are pretty general, and the facts in Fulton are unbelievably complicated. They could write this decision all kinds of different ways. It's really impossible to predict."

One key precedent in Fulton will likely be the Supreme Court's 1990 ruling in Employment Division v. Smith, when it found that the federal government didn't have to pay unemployment benefits to a Native American man who'd been fired from his job for consuming peyote, a hallucinogen used in Native ceremonies for thousands of years. The decision broadly established that religion could not be used as grounds for breaking the law.

The late Justice Antonin Scalia put it this way in the majority opinion: "Can a man excuse his [illegal] practices … because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

But the ruling in Smith didn't settle anything, according to Laycock. "The rhetoric was pointing in all directions in Smith," he said. "Whatever you think was the bottom line, it was a terrible opinion in terms of communicating any clear standard."

In a recent and potentially relevant high-profile case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, better known as the "gay wedding cake" case, the Supreme Court ultimately reversed a state ruling that the bakery had discriminated against a same-sex couple by declining to sell them a cake. But that ruling was intentionally narrow in scope, and clearly not intended to set a new, broad standard. 

Another salient piece of the puzzle might be the Religious Freedom Restoration Act, a 1993 bill signed by President Bill Clinton that prohibits the federal government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability." (That term refers to laws that apply to everyone.) In the Fulton case, however, the court will presumably have to unpack what kind of "burden" was imposed on CSS by Philadelphia's cancellation of their contract. 

Laycock suggests that the court may conclude that the burden on CSS is substantially higher than that placed on LGBTQ+ couples hoping to take in foster kids. "Who's burdened more is a very important way of looking at these cases, and it's not a way that is used enough," he said. "If same-sex couples in Philadelphia have trouble receiving adoption services, then that's a serious burden. But that's not the situation."

He continued: "The burden on one side is a single incident of being offended and then you go on about your business and get the services you need. On the religious side, the burden is you surrender your religious belief permanently or you go out of business."

Other legal experts strongly disagree. "If you think about the historical context in which our civil rights have developed," said Jennifer Pizer, the law and policy director for Lambda Legal, "it has never been an acceptable answer that people could get their lunch at a different lunch counter."

Pizer drew upon the 2014 case Burwell v. Hobby Lobby Stores, Inc., where the court reversed a federal requirement for employers to cover contraceptives for their female employees. Hobby Lobby is a Christian-owned company that resisted the federal mandate, claiming that it violated both the "free exercise clause" of the First Amendment and the Religious Freedom Restoration Act.

"Among the things that are particularly troubling" about Hobby Lobby, Pizer said, "was the idea that workers could get their birth control insurance from another source, which meant that everybody's needs could be met."  

The Hobby Lobby decision would seem to apply only to when it comes to private businesses. In the case of government contractors like CSS, who are receiving taxpayer dollars, the question becomes more complicated given to the constitutional mandate for separation between church and state.

Under the establishment clause of the First Amendment, Congress cannot enforce a law that creates or endorses any particular religion. In 1996, however, the federal government appeared to flout this rule by drawing up a series of regulations — called "charitable choice laws" — that authorized paying federal funds to faith-based organizations that offer social service programs.

Pizer told Salon that she sees these laws as leading toward an erasure of the establishment clause, and in that sense profoundly unconstitutional. "Given what has happened with the faith-based initiative and charitable choice statute, the establishment clause is looking pretty thin," she said. "That's a real problem for our society, given the religious pluralism we have."

Catholic faith leaders, needless to say, don't see the issue in those terms. "Separation of church and state should not mean the separation of religion from society," Archbishop Thomas Wenski, who leads the archdiocese of Miami, said in an interview with Salon. "People of religious faith should have the right to participate in the public square without experiencing any discrimination because of their religious faith. Separation of church and state has been used to discriminate against Catholic schools over the decades."

Wenski acknowledged that CSS does not have a constitutional right to a contract with the city of Philadelphia. "But there's no constitutional bar keeping them from having a contract with the federal government," he added. 

It remains unclear how the Supreme Court will rule on the case, though during oral arguments the conservative justices showed obvious sympathy for CSS's perspective. Recent rulings also suggest the court's majority is strongly favorable toward "free exercise" arguments. During the COVID crisis, the Supreme Court has struck down state-imposed restrictions on religious services, a significant win for advocates of self-described religious freedom. 

Six of the nine justices on the Supreme Court are Roman Catholics, and another (Neil Gorsuch) was raised Catholic. 

Laycock feels certain the court will overturn lower rulings against CSS, and no one Salon spoke to about this case argued otherwise. The six conservative justices, he said, "are gung-ho about free exercise. They think conservative religion is being persecuted."

How broad that decision will be, and what consequences it may have for the future of LGBTQ+ rights, Laycock said, is "anybody's guess."

By Jon Skolnik

Jon Skolnik was a former staff writer at Salon.

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