The confrontation, which will take place just a day after the presidential election, is the first major battle before Judge Amy Coney Barrett, sworn in a week ago.
Religious rights activists urge the court to use the Fulton v City of Philadelphia case to overthrow a 30-year-old precedent that has been balancing freedom of conscience and the rights of minority groups for decades.
This could effectively reverse the court’s trend in recent years to advance protection for LGBT people, civil rights activists 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 it cannot match foster children with same-sex households without violating their religious beliefs.
After learning about the politics in 2018, Philadelphia refused to refer any new foster children to the group, citing a city law prohibiting discrimination based on sexual orientation. The city has added a language to its contracts for 2019 that specifically prohibits such discrimination against potential foster parents.
Philadelphia, on the other hand, has said it is entitled to enforce anti-discrimination policies to protect LGBT residents. The city says it is not religiously hostile, and notes that its policies apply equally to religious and secular government corporations.
The 3rd US Court of Appeals followed a unanimous decision from Philadelphia in April 2019. Judge Thomas Ambro, in charge of the court, said CSS had failed to demonstrate that the city was motivated by anything other than “genuine resistance to discrimination based on” sexual orientation. ”
The Third Circle judgment relied heavily on the 1990 Supreme Court precedent known as the Employment Division v Smith. The ruling of the late Conservative Judge Antonin Scalia said that laws incriminating religious practice are usually permissible as long as they are generally applicable and not aimed at religion.
In her appeal, the Catholic Social Service asked the judges to overthrow Smith and introduce a new standard.
“Catholic social services are excluded from care, not because they broke a law, but because Philadelphia disagrees with its religious practices regarding marriage,” an attorney for CSS, Mark Rienzi, told judges on a file .
Philadelphia and two nonprofits questioning CSS in this case, Support Center for Child Advocates and Philadelphia Family Pride, argue that any standard that gives the agency the constitutional right to discriminate against same-sex couples would have far-reaching consequences.
“The court has recognized in a number of cases that LGBT people must be treated with the same dignity and respect as others,” said Cooper.
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 it, the right to opt out of any protections that promote equal treatment for the LGBT community achieved”.
Lori Windham, who will argue for CSS in court on Wednesday, said these objections were exaggerated.
“It’s totally over the top. Catholic Social Services have worked with women in color for decades to serve a diverse population, ”said Windham. “You are asking to keep doing that.”
While Smith has been on the books for three decades, there is good reason to believe the Supreme Court, now with a 6-3 majority, could overturn it. As recently as last year, four of the court’s Conservatives, Judges Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, suggested doing so at an angle.
With Barrett on the bench, the court that is already religiously friendly is likely to grow larger. But that doesn’t necessarily mean she’ll vote to overthrow Smith.
“She worked for Justice Scalia. Will she be on her way to overthrow a three-decade-old precedent of her old boss in the first week of her tenure? ”Asked David Flugman a partner at Selendy & Gay law firm who has litigated high profile civil rights cases.
But Flugman added that despite this nuance, Barrett’s addition to the court likely increased the possibility of a sweeping decision.
A win for CSS could take several forms. Katherine Franke, director of the law, rights and religion project at Columbia University, said it was possible the court could overthrow Smith without explicitly drafting a new standard.
Based on recent cases in which the court interpreted federal law restoring religious freedom, Franke said it was more likely that the court would create a higher standard for reviewing laws affecting religion than it did before Smith’s decision in 1990 was the case.
“Many of us in the industry call this religious freedom steroids,” she said.
Flugman said the tension between religious freedom and LGBT equality at the center of the case is “the fundamental problem in LGBT rights right now”.
“The real consequences of that could really, really, really matter to people,” Flugman said. “From being denied health care to being excluded from schools or refusing to serve people in restaurants or not place them in bed and breakfasts.”
The court faced a similar situation in the 2018 Masterpiece Cakeshop case, 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 did not apply to most other similar cases.
The decision about the masterpiece, although only a few years old, could actually come from another time. It was written by Justice Anthony Kennedy, the chief LGBT rights defender on the Supreme Court, a few weeks before his retirement.
With Kennedy’s departure, said Franke, the court initiated a new phase in his religious cases, in which religious rights were raised above all others.
“Justice Kennedy saw all the rights enshrined in the constitution in a delicate balance with one another, with this current majority seeing some rights as more fundamental than others,” said Franke. “We’re starting to see a kind of tiering rights where some are top tier rights and some are middle tier rights.”
The conflict between these “top tier” rights – including religious and gun rights – and “middle tier” rights could be seen in the last term of office, said Franke.
In rulings passed in June and July, judges protected religious schools from discrimination lawsuits from teachers, allowed religious employers to deny their workers access to free contraceptive coverage, and paved the way for religious schools to receive taxpayers’ money.
The judges also angered religious conservatives by ruling in the Bostock v. Clayton County case that Title 7 of the Civil Rights Act protects gay and transgender workers from being fired because of their sexual orientation or gender identity.
Franke noted that the cases in which religion was preferred were written in high-flying language, while Gorsuch’s opinion on defending gays and transgender workers was expert – leaving open the possibility that religious employers could seek an exemption from Title 7 .
“I see that when these compete against each other, the profound normative argumentation of the cases of religious freedom will only overwhelm the mechanical argumentation of the cases of equality or the cases of reproductive rights,” said Franke.
Mary Bonauto, an attorney with GLBTQ Legal Advocates & Defender, wrote in a file submitted to the judges that Bostock and the court’s earlier cases “had profound implications for the ability of LGBTQ people to support themselves and their families and on Economic life of our to participate. “Nation.”
Fulton, she wrote, “seriously endangers the incipient same citizenship”.
A decision in this case is expected by the end of June. The case is Fulton v City of Philadelphia, nos. 19-123.
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