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A license to discriminate on trial at the U.S. Supreme Court
Posted on December 5, 2020 at 4:15 pm

On November 4th, with all eyes on the 2020 elections, the U.S. Supreme Court heard oral arguments on a case that could have immense implications for the LGBTQ community. Fulton v City of Philadelphia brings to light the anti-LGBTQ practices of a taxpayer-funded foster care agency. The agency, Catholic Social Services, refused to serve same-sex couples, which is in violation of the City of Philadelphia’s nondiscrimination law and the contract the agency signed with the City. 

What is the issue before the court?

The question before the court is whether a government contractor, including a foster care agency, can use taxpayer funds to perpetuate discrimination by citing their religious beliefs. The larger issue is this: to what extent can organizations or individuals use their religious beliefs to justify discrimination, even when it’s against the law? These kinds of exemptions are what we call “religious refusals” or “license to discriminate” legislation, because they allow individuals to refuse to comply with generally applied laws due to their “sincerely held religious beliefs.” 

Imagine if each of us were free to pick and choose which laws to follow based on our personal religious beliefs. In such a world, we would become as the late Justice Antonin Scalia wrote on this issue, “a law unto [ourselves].” 

Religious refusals target more than just the LGBTQ+ community. They open up a Pandora’s box that would allow discrimination against other faith traditions, access to reproductive healthcare — any issue that people could conceivably have a “sincerely held religious belief” about.

“Religious liberty” does not give an individual the right to discriminate against others, especially when public taxpayer funds are involved. LGBTQ Americans are in danger of facing discrimination in foster care, homeless shelters, food banks, and the 33,000 human service nonprofits that receive grants to carry out government contracts. 

If the Supreme Court rules in favor of Catholic Social Services, the decision could open the door to religious refusals by government contractors across the country. 

How did the November 4th oral arguments go?

Every Justice seemed to understand the potential larger impact of this case and asked questions accordingly. An extremely broad breakdown of the Justices’ questions are below: 

Those thought of as the “liberal justices,” including Justice Kagan, Justice Breyer, and Justice Sotomayor, asked questions that implied that the government has a compelling interest in eradicating discrimination against the LGBTQ+ community and ensuring that government programs treat everyone equally. They also pointed out that no one was forcing Catholic Social Services to “approve of” or support same-sex couples, only to evaluate their eligibility to be foster parents.

Those thought of as the “conservative justices” had a wide range of questions. Justice Roberts and Justice Gorsuch asked clarifying questions around when programs should take protected identities into account and whether or not the government gets to set the rules for its own programs, even if it is contracting that work out. 

Justices Thomas, Alito, Kavanaugh, and Barrett seemed to question who was harmed by the denial of service if there are other agencies that will serve LGBTQ+ couples, implying that discrimination was okay as long as not every agency discriminates. Justice Alito in particular also made a strong distinction between discrimination based on race and discrimination based on sexual orientation and gender identity, implying that discrimination towards the LGBTQ+ community was acceptable. 

Any decision will have to have at least 5 of the Justices in agreement. 

What comes next?

This is yet another landmark Supreme Court case for our community, and we need legislators, the media, and the general public to understand what’s at stake. Religious refusals are a tactic that opponents of equality rely on incessantly to rollback progress for our community. If individuals can exempt themselves from laws that enforce nondiscrimination protections, then our community isn’t fully protected.

The decision will likely come down sometime next spring or early summer.  

How is Equality Texas responding?

Join us in December for a virtual webinar that will take a deeper dive into the Fulton v City of Philadelphia case. 

We’re also fighting religious refusals on the state level in the 2021 state legislative session this January. Join our grassroots advocacy strategy by emailing rachel.hill@equalitytexas.org and we’ll help you find where to fit in.