The loss of Ruth Bader Ginsburg has moved the balance in favor of conservative views on the U.S. Supreme Court. (Shutterstock)

The loss of Ruth Bader Ginsburg has moved the balance in favor of conservative views on the U.S. Supreme Court. (Shutterstock)

U.S. Supreme Court shifts on LGBTQ+ issues

Case pitting discrimination against religious freedom shows impact of Trump appointments

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By Christopher B. Dolan and Matthew D. Gramly

Fulton v. City of Philadelphia involved a religious-based adoption and foster care agency that refused to provide services to married same-sex couples. The agency’s denial of services was based on religious beliefs of the Roman Catholic Archdiocese of Philadelphia, which runs the agency. Because of that denial, Philadelphia canceled a contract with the agency on the basis of a discriminatory practice. The diocese thereafter sued the city, alleging local regulations discriminate against the diocese because of religious beliefs.

One year ago, the U.S. Supreme Court handed down a landmark decision in support the LGBTQ+ community in holding that employers who terminate an employee because that employee is gay, lesbian or transgender is in violation of Title VII of the 1964 Civil Rights Act. Ruth Bader Ginsburg was still on the court. Today, Associate Justice Amy Coney Barrett occupies Ginsberg’s former seat. And today, with Barrett, there is a 6-3 conservative majority, including former President Donald Trump’s other two appointees, Justices Brett Kavanaugh and Neil Gorsuch. It is a much different court today than it was a year ago. No one knew quite what to expect in the Fulton case — until last month when the court unanimously backed the church.

For more than 100 years, the Roman Catholic Diocese of Philadelphia had run Catholic Social Services (CSS), a foster care agency in the city. CSS had a contract with the city to provide foster care and adoption services under the terms of which CSS received taxpayer funds from the city. During an investigation in early 2018, the Philadelphia Inquirer discovered that CSS had a policy of refusing to provide foster or adoption services to same-sex couples. The newspaper notified the Department of Human Services, which oversees and enforces regulations for such foster care agencies, and asked if the city was aware of CSS’ policy. DHS discovered that only one other foster care and adoption agency in Philadelphia run by religious organizations (there were several) had a similar policy of discriminating against same-sex couples. DHS Secretary Cynthia Figueroa thereafter canceled CSS’ contract with the city because of discriminatory practices.

CSS and the archdiocese sued Philadelphia pursuant to the free exercise clause, free speech clause and the establishment clause of the First Amendment to the U.S. Constitution. CSS also alleged religious discrimination had been perpetrated against them by city government. The free exercise clause, accompanied by the establishment clause, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The contention was that Philadelphia’s government, by canceling its contract with CSS because CSS did not provide services to same-sex couples, was using the power of government to discriminate against CSS and the diocese solely because of religious beliefs held by both; that by canceling the contract the city was preventing CSS and the archdiocese from freely exercising their religious beliefs, and using the power of government to disfavor the Catholic faith impermissibly.

The implications are devastating to LGBTQ+ families and their ability to work with adoption and foster care agencies run by religious organizations. As with most cases involving LGBTQ+ discrimination issues, this case pits the right to be free from discrimination because of one’s sexual orientation against claims that “religious freedom” permits various churches and religious organizations to openly discriminate against people in the LGBTQ community because of deeply held religious beliefs.

The case was argued before the Supreme Court on Nov. 4, the day after the 2020 election. Barrett had been on the court for just 10 days. It is important to note as well that all six of the court’s conservative justices — Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Gorsuch, Kavanaugh, and Barrett — were raised Catholic and all six remain practicing Catholics to this day.

Ginsberg spent her entire life fighting against discrimination of all kinds, including against the LGBTQ+ community. Following her death last year, Rea Carey, executive director of the National LGBTQ Task Force, said in a statement, “Justice Ginsburg was an American hero and pioneer, a voice for so many marginalized people, leaving behind a legacy of courage, tenacity, and historic impact in creating a better country and a better world for all of us. We are all so grateful for all Justice Ginsburg has done for LGBTQ people, for women, for our ability to control our own bodies, for all that seek to move freedom forward in this country.”

Barrett, on the other hand, belongs to a Catholic sect that believes wives should be subservient to their husbands, and openly opposes both abortion and just about any rights extended to members of the LGBTQ+ community, even banning them from membership in the sect.

Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Matthew D. Gramly is a senior associate attorney based in our San Francisco office. We serve clients throughout the Bay Area and California from offices in San Francisco, Oakland and Los Angeles. Email questions for future articles to: help@dolanlawfirm.com. Our work is no recovery, or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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